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HomeMy WebLinkAbout2024-06-18 Agenda Packet (2)IN-PERSON PUBLIC PARTICIPATION: Members of the public are welcome to attend City Council meetings in person. Alternate ways to view meetings live or on-demand include: livestreamed on HBTV Channel 3 (replayed on Wednesday at 10:00 a.m. and Thursday at 6:00 p.m.); live and archived meetings for on-demand viewing accessed from https://huntingtonbeach.legistar.com/calendar , https://bit.ly/SurfCityTV, or the City's YouTube Channel at https://www.youtube.com/cityofhb , or from any Roku, Fire TV or Apple device by downloading the Cablecast Screenweave App and searching for the City of Huntington Beach channel. PRESENTATION MATERIAL: Presentations/AV materials shall be submitted to staff no later than 9AM the day of the meeting to PublicPresentations@huntingtonbeachca.gov . Members of the audience and speakers shall not wear or display signs that obstruct the view of other audience members. Signs shall remain with the holder and shall not be placed in adjacent seats or in common areas. PUBLIC COMMENTS: Individuals wishing to provide a comment on agendized or non-agendized items including Study Session, Closed Session, and Public Hearing, may do so in person in the City Council Chambers by completing a Request to Speak form delivered to the City Clerk. Sign-ups to Request to Speak will begin in person 30 minutes prior to the start of Study Session, Closed Session, or Regular City Council Meeting, whichever comes first. Sign-ups will be accepted until the commencement of the public comment period. SUPPLEMENTAL COMMUNICATION: Members of the public unable to personally participate in the meeting but interested in communicating with the City Council on agenda-related items are encouraged to submit a written (supplemental) communication to the Council via email at SupplementalComm@Surfcity-hb.org . Supplemental Communications are public record, and if received by 9:00 AM on the day of the meeting, will be distributed to the City Council prior to consideration of agenda-related items, posted to the City website, and announced, but not read, at the meeting. Communications received after the 9:00 AM deadline will be incorporated into the administrative record. Members of the public are also welcome to communicate with the City Council (and staff supporting Council) at City.Council@surfcity-hb.org . MEETING ASSISTANCE NOTICE: In accordance with the Americans with Disabilities Act, services are available to members of our community who require special assistance to participate in public meetings. If you require special assistance, 48-hour prior notification will enable the City to make reasonable arrangements for an assisted listening device (ALD) for the hearing impaired, American Sign Language interpreters, a reader during the meeting and/or large print agendas. Please contact the City Clerk's Office at (714) 536-5227 for more information. AGENDA City Council/Public Financing Authority Tuesday, June 18, 2024 4:00 PM - Study/Closed Session Cancelled 6:00 PM - Regular Meeting and Special Meeting of the Housing Authority Council Chambers 2000 Main Street Huntington Beach, CA 92648 MAYOR AND CITY COUNCIL GRACEY VAN DER MARK, Mayor PAT BURNS, Mayor Pro Tem RHONDA BOLTON, Councilmember DAN KALMICK, Councilmember CASEY McKEON, Councilmember NATALIE MOSER, Councilmember TONY STRICKLAND, Councilmember STAFF ERIC G. PARRA, Interim City Manager MICHAEL E. GATES, City Attorney ROBIN ESTANISLAU, City Clerk ALISA BACKSTROM, City Treasurer 1 AGENDA June 18, 2024City Council/Public Financing Authority 4:00 PM - COUNCIL CHAMBERS With no items scheduled for Study and/or Closed Session, the regular meeting will be called to order at 6:00 PM in the Council Chambers. 6:00 PM – COUNCIL CHAMBERS CALL TO ORDER THE REGULAR MEETING OF THE CITY COUNCIL/PUBLIC FINANCING AUTHORITY, AND SPECIAL MEETING OF THE HOUSING AUTHORITY ROLL CALL Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, Kalmick PLEDGE OF ALLEGIANCE INVOCATION In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation. 24-4421.Huntington Beach Police and Fire Chaplain Roger Wing CITY COUNCIL MEMBER COMMENTS (3-Minute Time Limit) The Mayor will facilitate a voluntary opportunity for members of the Huntington Beach City Council to individually make brief comments to the public. Please note that the Brown Act does not allow for lengthy comments, discussion, or action on topics that are not on the agenda. ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS (Received After Agenda Distribution) PUBLIC COMMENTS (3-Minute Time Limit) At this time, the City Council will receive comments from members of the public regarding any topic, including items on the open session agenda. Individuals wishing to provide a comment may do so in person by filling out a Request to Speak form delivered to the City Clerk. All speakers are encouraged, but not required to identify themselves by name. Each speaker may have up to 3 minutes unless the volume of speakers warrants reducing the time allowance. Please note that the Brown Act does not allow discussion or action on topics that are not on the agenda. Members of the public who would like to speak directly with a Councilmember on an item not on the agenda may consider scheduling an appointment by contacting the City Council's Administrative Assistant at (714) 536-5553 or emailing the entire City Council at city.council@surfcity-hb.org. While the City Council welcomes public involvement and supports and defends free speech, the City Council rejects comments from anyone that are discriminatory, defamatory or otherwise not Page 1 of 4 2 AGENDA June 18, 2024City Council/Public Financing Authority protected free speech. Those comments will not inform nor be considered by the City Council and may be cause for the Mayor to interrupt the public speaker. Such public comments will not be consented to or otherwise adopted by the City Council in its discussions and findings for any matter tonight. COUNCIL COMMITTEE APPOINTMENT ANNOUNCEMENTS Councilmembers may make brief announcements on any appointments made to a board, committee, or commission. Councilmembers may not discuss or take any action on these announcements. Announcements are limited to 1 minute. AB 1234 REPORTING Per AB 1234 (Government Code Section 53232.3(d)) Councilmembers who attend a meeting, conference, or similar event at the expense of the City must provide a brief report of the meeting, conference, or similar event during the next regular City Council meeting. Reports are limited to 1 minute. OPENNESS IN NEGOTIATION DISCLOSURES Councilmembers must publicly disclose any meetings or communications with City employee associations, related to the negotiations of labor agreements. Disclosures are limited to 1 minute and must be made by the next regular City Council Meeting. CITY MANAGER'S REPORT CONSENT CALENDAR (Items 2-6) City Clerk 24-4412.Approve and Adopt Minutes Approve and adopt the City Council/Public Financing Authority regular meeting minutes of June 4, 2024. Recommended Action: Community Development 23-9773.Approve and authorize the execution of an Affordable Housing Agreement between the City of Huntington Beach and TPG AG EHC III (LSEA) CA 3, L.P. for a residential development consisting of 13 new affordable townhomes located at 7225 Edinger Avenue A) Approve the Affordable Housing Agreement between the City of Huntington Beach and TPG AG EHC III (LSEA) CA 3, L.P. for the development of 13 affordable units at 7225 Edinger Avenue; and, B) Authorize the City Manager or their designee to implement and execute the Affordable Recommended Action: Page 2 of 4 3 AGENDA June 18, 2024City Council/Public Financing Authority Housing Agreement for the Project, including all necessary related documents; and, C) Authorize the Housing Authority Executive Director or their designee to execute all necessary implementing agreements and related documents. Police 24-4344.Approve and authorize execution of a one-year agreement with the Riverside County Sheriff’s Department to participate in Operation Stonegarden A) Approve and authorize Police Chief Eric G. Parra to execute the “Agreement for Fiscal Year 2023 Operation Stonegarden (OPSG);” and , B) Appropriate $225,000 in grant funding for Operation Stonegarden. Recommended Action: 24-4375.Approve and authorize an Intergovernmental Service Agreement between the City of Huntington Beach and the City of Costa Mesa for detention of female arrestees for 647(f) PC (drunk in public) and 11550(a) HS (under the influence of a controlled substance) at the Huntington Beach Police Department Jail Approve and authorize the Mayor and City Clerk to execute “Intergovernmental Service Agreement (“Agreement”) between the City of Huntington Beach (“City”) and the City of Costa Mesa (“Agency”) for detention of arrestees at the Huntington Beach Police Department Jail for the City of Costa Mesa Police Department .” Recommended Action: Public Works 24-4446.Approve and authorize the execution of Amendment No. 1 to Existing Cooperative Agreement with the Orange County Transportation Authority (OCTA) for the I-405 Freeway Improvement Project Approve and Authorize the Interim City Manager to execute “Amendment No. 1 to Agreement No. C-3-2654 Between Orange County Transportation Authority and City of Huntington Beach for the I-405 Improvement Project.” Recommended Action: ADMINISTRATIVE ITEMS 24-4527.Consider Proposal Received as Part of the Request for Proposal Process for Managed Library Services for the Huntington Beach Page 3 of 4 4 AGENDA June 18, 2024City Council/Public Financing Authority Public Library Direct staff to take one of the following actions: Option A: Reject the proposal for Managed Library Services for the Huntington Beach Public Library. Option B: Begin negotiations for Managed Library Services for the Huntington Beach Public Library and continue the meet and confer process with labor groups. Direct staff to return to the City Council for consideration of the potential agreement. Recommended Action: ORDINANCES FOR INTRODUCTION 24-4148.Approve for introduction Ordinance No. 4230 to authorize execution of an Amendment to the Pipeline Franchise Agreement with Cardinal Pipeline, L.P. for the operation and maintenance of a pipeline system for the transportation of oil, gas, and other hydrocarbon substances A) Approve for introduction Ordinance No. 4230, “An Ordinance of the City Council of the City of Huntington Beach Amending Ordinance No. 4008 which Granted an Oil Pipeline Franchise”; and, B) Approve and authorize the Mayor and City Clerk to execute the “Amendment to Franchise Agreement between the City of Huntington Beach and Cardinal Pipeline , L.P.” Recommended Action: ADJOURNMENT The next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority is Tuesday, July 2, 2024, in the Civic Center Council Chambers, 2000 Main Street, Huntington Beach, California. INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT http://www.huntingtonbeachca.gov Page 4 of 4 5 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-442 MEETING DATE:6/18/2024 Huntington Beach Police and Fire Chaplain Roger Wing City of Huntington Beach Printed on 6/12/2024Page 1 of 1 powered by Legistar™6 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-441 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Robin Estanislau, CMC, City Clerk PREPARED BY:Robin Estanislau, CMC, City Clerk Subject: Approve and Adopt Minutes Statement of Issue: The City Council/Public Financing Authority regular meeting minutes dated June 4, 2024, require review and approval. Financial Impact: None. Recommended Action: Approve and adopt the City Council/Public Financing Authority regular meeting minutes of June 4, 2024. Alternative Action(s): Do not approve and/or request revision(s). Analysis: None Environmental Status: Non-Applicable Strategic Plan Goal: Non Applicable - Administrative Item Attachment(s): 1. CC/PFA regular meeting minutes of June 4, 2024 City of Huntington Beach Printed on 6/12/2024Page 1 of 1 powered by Legistar™7 Minutes City Council/Public Financing Authority Regular Meeting, and Housing Authority, Special Meeting City of Huntington Beach Tuesday, June 4, 2024 5:00 PM – Council Chambers 6:00 PM – Council Chambers Civic Center, 2000 Main Street Huntington Beach, California 92648 A video recording of the 5:00 PM and 6:00 PM portion of this meeting is on file in the Office of the City Clerk, and archived at www.surfcity-hb.org/government/agendas/ 5:00 PM - COUNCIL CHAMBERS CALL TO ORDER — 5:00 PM ROLL CALL Present: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick Absent: None CITY COUNCIL MEMBER COMMENTS (3-Minute Time Limit) Councilmember Moser spoke in recognition and celebration of June as Pride Month; Mayor Pro Tem Burns reported attending a tour of the Boys and Girls Club of Huntington Valley, and a meeting with the Coordinating Council, a group of non-profits organized by the City Council 55 years ago. ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS PERTAINING TO CLOSED SESSION ITEM(S) (Received After Agenda Distribution) — None PUBLIC COMMENTS PERTAINING TO CLOSED SESSION ITEM(S) (3-Minute Time Limit) — None A motion was made by Strickland with a second by Burns to recess to Closed Session. RECESSED TO CLOSED SESSION — 5:02 PM CLOSED SESSION 1. 24-425 CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION. (Paragraph (1) of subdivision (d) of Section 54956.9). Clayton-Tarvin (Gina) v. City of Huntington Beach, Michael Gates, et al.; OCSC Case No.: 30-2023-01329927. 6:00 PM - COUNCIL CHAMBERS 8 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 2 of 20 RECONVENED THE CITY COUNCIL/PUBLIC FINANCING AUTHORITY MEETING AND CALLED TO ORDER A SPECIAL MEETING OF THE HOUSING AUTHORITY — 6:00 PM ROLL CALL Present: Moser, Burns, Van Der Mark, Strickland, McKeon, and Kalmick Absent: Bolton (arrived at 7:12 pm) Pursuant to Resolution 2001-54, Councilmember Bolton requested and received no objections to be absent for a portion of the meeting, arriving at 7:12 pm. PLEDGE OF ALLEGIANCE — Led by Director of Human Resources Marissa Sur INVOCATION In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation. 2. 24-417 Huntington Beach Police Chaplain Bob Ewing CLOSED SESSION REPORT BY CITY ATTORNEY — None ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS (Received After Agenda Distribution) Pursuant to the Brown "Open Meetings" Act, City Clerk Robin Estanislau announced supplemental communications that were received by her office following distribution of the Council Agenda packet which were all uploaded to the City's website and Councilmember iPads: Consent Calendar Item #6 (1 email communication); Item #7 (1 email communication); Item #9 (1 email communication); Item #10 (1 staff memo, 2 email communications); Item #17 (1 staff memo); Councilmember Items Item #20 (8 email communications); Item #21 (30 email communications). PUBLIC COMMENTS (2-Minute Time Limit due to number of speakers) — 41 Speakers The number [hh:mm:ss] following the speakers' comments indicates their approximate starting time in the archived video located at http://www.surfcity-hb.org/government/agendas. Chad Williams was called to speak and shared his response to Councilmember Kalmick's public comments at the May 21, 2024, City Council meeting regarding the cease-and-desist letter Mr. Williams received from Councilmember Kalmick's attorney. He described contents of the letter including accusations of false and defamatory remarks made at a City Council meeting, and a demand for retraction of these statements by June 6, 2024. (00:08:16) Aaron Pai, Huntington Surf and Sport Owner and 52-year Huntington Beach resident was called to speak and stated support for Public Hearing Item #18 regarding modifying the Management District Plan for the Huntington Beach Tourism Business Improvement District. (00:10:00) Don Kennedy, City Council Candidate November 2024, was called to speak and noted the stark contrast between the November 2024 Council Candidates, and stated he will offer truth and transparency in representing all residents of Huntington Beach. (00:11:46) 9 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 3 of 20 Butch Twining, 58-year Huntington Beach resident, Planning Commissioner and City Council Candidate November 2024, was called to speak and stated his opposition to Council Member Items #20, item submitted by Councilmember Kalmick — Water is Wet, Sky is Blue, and stated support for City Council Candidates Don Kennedy, Chad Williams and Butch Twining in November 2024. (00:13:55) Dom McGee was called to speak and stated his support for Council Member Items #21, item submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:15:43) Patti Pappas was called to speak and shared her support for the current Council majority, and opinions regarding Councilmember Kalmick's recent appearance in Sacramento as a witness for the Assembly Committee on Education supporting AB1825. (00:17:39) Ann Palmer, long-time Huntington Beach resident, was called to speak and shared her opinions regarding age-appropriate materials in the Huntington Beach Public Library system, and support for a Parent/Guardian Advisory Group. (00:19:44) Jeanne Paris, long-time Huntington Beach resident, was called to speak and stated her support for Council Member Items #21, item submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:21:30) Valentina Bankhead, Huntington Beach resident, was called to speak and stated opposition to Council Member Items #20, item submitted by Council Member Kalmick — Water is Wet, Sky is Blue; and support for Council Member Items #21, item submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:22:53) Barbara Richardson, 51-year Huntington Beach resident and Save the Huntington Beach Library Group member, was called to speak and stated her support for allowing the residents to vote on whether the library is run by a private outside company and announced a petition that addresses the issue will soon be available for signatures. She also announced the Friends of the Children's Library have planned a special Pre-50th Carnival Celebration on Saturday, June 22, 2024, 10 AM – 2 PM. (00:25:06) Unnamed Speaker was called to speak and shared her support for the United States Constitution and Bill of Rights. (00:26:42) David Rynerson, 26-year Huntington Beach resident, was called to speak and stated his opposition to the 13 percent increase in the City Attorney’s Office budget and shared his opinions related to the Huntington Beach Public Library outsourcing request for proposals (RFP). (00:28:50) Unnamed Speaker was called to speak and stated opposition to the 13 percent increase in the City Attorney’s Office budget and opposition to efforts for outsourcing the Huntington Beach Public Library. (00:31:01) Cathey Ryder, 39-year Huntington Beach voter and homeowner, was called to speak and stated her opposition to Council Member Items Item #20, item submitted by Councilmember Kalmick — Water is Wet, Sky is Blue and opposition to Item #21, item submitted by Mayor Pro Tem Burns — affirmation of 10 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 4 of 20 the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:32:10) Russ Neal, Huntington Beach resident, was called to speak and stated support for Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:33:43) Amory Hanson was called to speak and stated support for Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:35:31) Tim Geddes was called to speak and shared his opinions regarding Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City, and interest in the response to the Huntington Beach Public Library outsourcing request for proposals (RFP). (00:36:42) Unnamed Speaker was called to speak and shared her support for allowing the voters to decide whether the Huntington Beach Public Library system is privatized; noted the lack of transparency from the City Attorney’s Office; and frivolous nature of Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:38:35) Wendy Rincon, 50-year Huntington Beach resident, was called to speak and stated opposition to privatizing the Huntington Beach Public Library system and noted the frivolous nature of Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:41:25) Bethany Webb, 40+-year Huntington Beach resident, was called to speak and stated her support for National Gun Awareness Month to recognize citizens who have died because of the 2nd Amendment right to bear arms. (00:43:34) Kanan Durham, Pride at the Pier, was called to speak and stated his support for Pride month and recognizing the importance of all Amendments to the United States Constitution. (00:45:46) Dennis, 41-year resident of Huntington Beach, veteran, and freedom-loving taxpayer, was called to speak and shared his support for Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City, and opposition to Council Member Items #20 — item submitted by Councilmember Kalmick — Water is Wet and Sky is Blue. (00:47:25) Steve Cuniff was called to speak and stated support for Consent Calendar Community and Library Services Item #10 regarding approval of Option 2 for the Marina Park reconfiguration conceptual plan as recommended by the Community and Library Services Commission. (00:48:49) 11 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 5 of 20 Steve Bush was called to speak and stated support for Consent Calendar Community and Library Services Item #10 regarding approval of Option 2 for the Marina Park reconfiguration conceptual plan as recommended by the Community and Library Services Commission and read a statement of support from Victoria Rodriguez, 16-year-old Junior National Racquetball Champion who started playing at age 7 on the Huntington Beach Marina Park courts. (00:49:13) Larry Slonim, 44-year Huntington Beach resident, was called to speak and stated his support for allowing the residents to vote and determine whether the Huntington Beach Public Library system is privatized. (00:51:06) Harry McLachlan was called to speak and stated opposition to Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City (00:53:00) Dave Reynolds, nearly 50-year Huntington Beach resident, was called to speak and stated support for Public Hearing adoption of Resolution No. 2024-30 modifying the Management District Plan for the Huntington Beach Tourism Business Improvement District. (00:54:51) Matt Kern, representing State Senator Dave Min, was called to speak and read a statement from Senator Min regarding his introduction of SB1174 to send a clear message that local jurisdictions do not have the authority to enact their own election requirements even if they are a Charter City. Councilmember Strickland invited Mr. Kern to complete a blue card for follow-up, and Mr. Kern acknowledged the City Clerk as having his contact information to share. (00:56:11) Linda Moon, 50-year Huntington Beach resident, was called to speak, stated support for June as Pride month, National Gun Awareness Month and noted the frivolous nature of Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (00:58:12) Lisa, 48-year Huntington Beach resident, was called to speak and stated support for Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (01:00:56) Unnamed Speaker was called to speak and noted the frivolous nature of Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (01:02:51) Christopher Rini, life-time Huntington Beach resident, was called to speak and stated support for Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City. (01:05:01) Don Ramsey, 61-year Huntington Beach resident and 47-year owner of local businesses, was called to speak and stated support for Public Hearing adoption of Resolution No. 2024-30 modifying the Management District Plan for the Huntington Beach Tourism Business Improvement District. (01:07:12) 12 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 6 of 20 Rocky McKinnon, McKinnon Surf and SUP Lessons owner, was called to speak and stated support for Public Hearing adoption of Resolution No. 2024-30 modifying the Management District Plan for the Huntington Beach Tourism Business Improvement District. (01:09:27) Kathryn Goddard was called to speak and urged the Council majority to increase transparency and engage in open dialogue with community members. (01:11:21) Ken Inouye, 51-year Huntington Beach resident, was called to speak and shared his comments regarding the budget, specifically regarding the fact that City revenue cannot keep up with increasing costs, and respectfully requested that future Council meetings provide periodic financial information so that residents can evaluate the City's financial health. (01:13:30) George Borrela, long-time Huntington Beach resident, and Coach for Victoria Rodriguez, 16-year-old Junior National Racquetball Champion who started her career on the Huntington Beach Marina Park courts, was called to speak and stated support for Consent Calendar Community and Library Services Item #10 regarding approval of Option 2 for the Marina Park reconfiguration conceptual plan as recommended by the Community and Library Services Commission. (01:15:36) Unnamed Speaker was called to speak and shared his opinions on the City's looming budget deficit and the impact created by the lack of affordable housing. (01:16:29) Unnamed Speaker was called to speak and stated support for Council Member Items #21 submitted by Mayor Pro Tem Burns — affirmation of the Huntington Beach City Council's commitment to the United States Constitution and special recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City and stated support for City Council Candidates Don Kennedy, Chad Williams and Butch Twining in November 2024. (01:18:31) Unnamed Speaker was called to speak and suggested eliminating frivolous lawsuits as a way to cut City costs and approving a compliant Housing Element to increase revenue. (01:20:46) Unnamed Speaker was called to speak and shared his opinions related to the City's budget and his personal experience regarding automobile parking experiences with the Huntington Beach Police Department. (01:22:54) COUNCIL COMMITTEE APPOINTMENT ANNOUNCEMENTS — None AB 1234 REPORTING — None OPENNESS IN NEGOTIATION DISCLOSURES — None CITY MANAGER’S REPORT Interim City Manager Eric Parra introduced Fire Deputy Chief Eric McCoy who reported on the successful CPR collaboration between public safety departments of Police, Fire and Marine Safety. Chief McCoy noted that the City offers free CPR AED classes for residents who are members of the FireMed Program. CONSENT CALENDAR (Items 3-17) 13 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 7 of 20 Councilmember Kalmick pulled Items #5, #6, and #7, Mayor Van Der Mark pulled Item #10 and Councilmember Moser pulled #14 for further discussion. City Clerk 3. 24-416 Approved and Adopted Minutes A motion was made by Strickland, second Burns to approve and adopt the City Council/Public Financing Authority regular meeting minutes of May 21, 2024. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 4. 24-415 Received and Filed Monthly Update of Activities for Citizen Boards, Commissions, Committees (BCCs) and Regional Agencies — May 2024 A motion was made by Strickland, second Kalmick to receive and file. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None City Manager 5. 24-422 Approved the appointments of Delaine Bailey, Kristine Carroll, Ellen Kuhnert, Christian Meyer, Ann Palmer, Patricia Pappas, Joe Pena, Brooke Stewart, and Dixie Walters to the City Celebration Committee as recommended by City Council Liaisons McKeon and Strickland Councilmember Kalmick pulled this item to state his opinion there are more important issues to address and he cannot support this item. Councilmember Bolton stated she will not support this item because in her opinion the Historical Resources Board should be consulted and setting up a new committee is duplicative. A motion was made by McKeon, second Strickland to approve the appointments of Delaine Bailey, Kristine Carroll, Ellen Kuhnert, Christian Meyer, Ann Palmer, Patricia Pappas, Joe Pena, Brooke Stewart, and Dixie Walters to the City Celebration Committee. Committee members will serve until their respective successors are appointed and qualified. The Council Liaison has the power to recommend replacement members for any vacancies. The motion carried by the following roll call vote: AYES: Burns, Van Der Mark, Strickland, and McKeon NOES: Moser, Bolton, and Kalmick 6. 24-001 Adopted Resolution No. 2024-23 to Adopt a Revised City Council Manual 14 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 8 of 20 Present: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick Absent: None Councilmember Kalmick pulled this item to thank Deputy City Manager Catherine Jun for her hard work to pull this manual together. He also suggested revisions before the vote: 1) setting a framework of starting the business portion of Council Meetings by 9 PM while allowing for Mayor discretion to adjust public speaker time allowance, thereby giving residents the opportunity to come prepare accordingly; and 2) flying flags at half-staff at the passing of either "current" and "past" elected officials. Councilmember Strickland stated support for flying flags at half-staff at the passing of both "current" and "past" elected officials. A motion was made by Kalmick, second Bolton to adopt Resolution No. 2024-23, "A Resolution of the City Council of the City of Huntington Beach Adopting a Revised City Council Manual" as revised to stipulate that the business portion of Council meetings be started by 9 PM while allowing for Mayor discretion to adjust public speaker time allowance, and flying flags at half-staff for both current and past elected officials. The motion failed by the following roll call vote: AYES: Moser, Bolton, and Kalmick NOES: Burns, Van Der Mark, Strickland, and McKeon A motion was made by Strickland, second Van Der Mark to adopt Resolution No. 2024-23, "A Resolution of the City Council of the City of Huntington Beach Adopting a Revised City Council Manual" as amended to fly flags at half-staff at the passing of current and past elected officials. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 7. 24-400 Took a position on legislation pending before the State Legislature, as recommended by the Intergovernmental Relations Committee (IRC) Councilmember Kalmick pulled this item to state he will not support it. Councilmember Strickland stated he believes California Attorney General Bonta is filing a frivolous lawsuit because AG Bonta has already lost in court with both Redondo Beach and San Francisco. Councilmember Strickland noted that the California Constitution supports a Charter City's right to manage elections and voter identification requirements and he supports a position of opposing Senate Bill 1174 (Min). Councilmember Bolton clarified her understanding that the California Constitution states Charter cities can make decisions about municipal affairs, and the constitution does not specifically address voter identification. She added that two opportunities have been missed to support more local control over sober living homes because Councilmembers appear to be chasing windmills. 15 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 9 of 20 Councilmember McKeon shared his opinion of how the state pushes as "statewide concern" every housing mandate or agenda item to try circumventing local controls, except for Marin County where Governor Newsom lives. Councilmember Strickland shared his opinion there is not time to address every single effort from Sacramento to subvert local control. He added that the citizens of Huntington Beach voted for voter identification, and this was not a decision made by Councilmembers. Councilmember Moser stated her opinion that the voters approved the item without understanding the ramifications. A motion was made by Strickland, second Van Der Mark to approve the legislative position taken by IRC on May 15, 2024: OPPOSE Senate Bill 1174 (Min) Elections: Voter identification. The motion carried by the following roll call vote: AYES: Burns, Van Der Mark, Strickland, and McKeon NOES: Moser, Bolton, and Kalmick 8. 24-413 Approved and authorized execution of a service agreement between the City of Huntington Beach and Procure America for expense reduction and cost recovery services A motion was made by Strickland, second Kalmick to approve and authorize the Mayor and City Clerk to execute a "Service Agreement Between the City of Huntington Beach and Procure America for Expense Reduction and Cost Recovery Services." The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None Community and Library Services 9. 24-424 Approved and authorized execution of a Memorandum of Understanding between the City of Huntington Beach and the American Legion Huntington Beach Post 133 for the use of City Facilities and provision of Veterans Services A motion was made by Strickland, second Burns to approve and authorize the Mayor and City Clerk to execute the Memorandum of Understanding between the City of Huntington Beach and the American Legion Huntington Beach Post 133 for the use of City facilities and provision of Veterans Services. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 10. 24-412 Approved Option 1 of the Marina Park reconfiguration conceptual plan as recommended by the Community & Library Services Commission 16 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 10 of 20 Mayor Van Der Mark pulled this item for clarification on the options and invited Ashley Wysocki, Community and Library Services Director, to share a PowerPoint communication titled Marina Park Reconfiguration Project with slides entitled: Project Location, Project Site, Project Progress, Stakeholder Meetings, Community Outreach Meeting and Survey No. 1, Community Outreach Meeting and Survey No. 2, Proposed Concept Option 1, Proposed Concept Option 2, Funding, Recommended Action and Questions? Director Wysocki introduced Consultant Luis Pedraza of David Volz Design who was also available to answer questions. Mayor Van Der Mark asked whether residents expressed more interest in pickleball or handball space. Director Wysocki replied residents expressed more interest in pickleball, but there was a surge of responses from outside of the city advocating for racquetball courts. Councilmember McKeon noted that the residents were vocal for the need for more pickleball courts and stated he supports Option 1. Councilmember Kalmick and Director Wysocki discussed the court reconfigurations are being considered for increased public safety and crime prevention by following Community Policing Through Environmental Design (CPTED) recommendations. Councilmember Kalmick explained for the benefit of the public that there is no funding at the present time to even begin construction. Director Wysocki stated that it will take about a year to move through the design phase. A motion was made by McKeon, second Strickland to approve Option 1 of two conceptual plan design options for the Marina Park reconfiguration conceptual plan, and authorized staff to move forward with initiating development of the design and bid package for construction of the updated facility. * Option 1: Conceptual Plan presented to the Community & Library Services Commission * Option 2: Conceptual Plan recommended by the Community & Library Service Commission The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 11. 24-403 Approved and authorized execution of a five-year License Agreement with Southern California Edison Company for public parkland located at Edison Park A motion was made by Strickland, second Burns to approve the License Agreement with Southern California Edison for the use of the 4.71 acres of property commonly known as Edison Park, Contract No. 9.2473, and authorize the Mayor and City Clerk to execute any and all documents necessary to conclude this transaction. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 17 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 11 of 20 12. 24-404 Approved and authorized execution of a five-year License Agreement with Southern California Edison Company for public parkland located at Gisler Park A motion was made by Strickland, second Burns to approve the License Agreement with Southern California Edison for the use of 10.5 acres of property known as Gisler Park, Contract No. 9.2247, and authorize the Mayor and City Clerk to execute any and all documents necessary to complete this transaction. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 13. 24-405 Approved and authorized execution of a five-year License Agreement with Southern California Edison Company for public parkland located at LeBard Park A motion was made by Strickland, second Burns to approve the License Agreement with Southern California Edison for the use of the 2.02 acres of property commonly known as LeBard Park, Contract No. 9.2480 and authorize the Mayor and City Clerk to execute all documents necessary to conclude this transaction. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None Community Development 14. 24-397 Approved and authorized execution of an 18-month extension to the Exclusive Negotiations Agreement with Jamboree Housing to continue planning and secure funding for the Pathways Project Councilmember Moser pulled this item to ask staff to review the Jamboree Housing Pathways Project for the benefit of the public. Steve Holtz, Community Development Deputy Director and Police Lieutenant Brian Smith presented a PowerPoint communication titled Extension of the Exclusive Negotiations Agreement with Jamboree Housing for the Pathways Project, with slides entitled: Background (2); Preliminary Design (2); Surrounding Area — Beach Blvd.; Surrounding Area — Cameron Ln.; Potential Funding Opportunities; and Recommended Action. Police Lieutenant Smith introduced Consultant Michael Massey, Executive Vice President and Chief Development Officer, Jamboree Housing who was available to answer questions. Councilmember Moser stated this project is an investment to improve economic, social and health outcomes for all residents in the community. She asked how not having a certified Housing Element could impact available funding sources for this project. Deputy Director Holtz responded that the Orange County Housing Finance Trust has two funding sources, one which requires a certified Housing Element, and another which does not require a certified Housing Element. He also noted that 18 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 12 of 20 Jamboree, not the City, will be the applicant filing for the funds and therefore a certified Housing Element is not required for a majority of funding sources. Councilmember McKeon noted that the Preliminary Design, as displayed in the PowerPoint communication, was selected because it does shield the Navigation Center from Beach Boulevard. Councilmember Moser and Deputy Director Holtz discussed that the Navigation Center is designed as flex space and as the need for services shrinks the Navigation Center space could become available for other uses. Deputy Director Holtz added that the Jamboree Permanent Supportive Housing will be deed restricted to remain apartments. Mayor Pro Tem Burns confirmed with Deputy Director Holtz that all potential funding sources consist of taxpayer funded programs. A motion was made by Moser, second Strickland to approve and authorize the Chair, Authority Clerk and Executive Director to enter into an agreement with Jamboree Housing, extending the Exclusive Negotiations Agreement between the Housing Authority and Jamboree Housing; and approve and authorize the Chair, Authority Clerk and Executive Director to approve Jamboree Housing's submission of funding applications for the Pathways Project. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None Public Works 15. 24-387 Accepted the lowest responsive and responsible bid and authorized execution of a construction contract with RJ Noble in the amount of $4,046,298.55 for the FY 23/24 Arterial Rehabilitation Project, CC-1741 A motion was made by Strickland, second Burns to accept the lowest responsive and responsible bid submitted by RJ Noble in the amount of $4,046,298.55 (Base Bid + Alternative Bid); and authorize the Mayor and City Clerk to execute a construction contract in a form approved by the City Attorney. The motion carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 16. 24-389 Approved and authorized execution of Amendment No. 1 to add Yorktown bridge to the existing Cooperative Agreement with the Orange County Flood Control District for funding, construction, and maintenance of bridges A motion was made by Strickland, second Burns to approve and authorize the Mayor and City Clerk to execute "Amendment No. 1 to Cooperative Agreement MA-080-23011516, between Orange County Flood Control District and City of Huntington Beach for addition of Funding, Construction, and Maintenance of the Talbert Channel (DO2) at Yorktown Avenue Improvements Project." The motion carried by the following roll call vote: 19 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 13 of 20 AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 17. 24-393 Adopted Resolution No. 2024-15 concerning the status and update of the Pavement Management Plan for the Measure M2 Program, and adopted a 7-year Capital Improvement Program for Fiscal Years 2024/2025 through 2030/2031 to comply with renewed Measure M eligibility requirements A motion was made by Strickland, second Burns to adopt Resolution No. 2024-15, "A Resolution of the City Council of the City of Huntington Beach Concerning the Status and Update of the Pavement Management Plan for the Measure M2 Program"; and adopt the 7-year Capital Improvement Program for Fiscal Years 2024/2025 through 2030/2031 to comply with renewed Measure M eligibility requirements, as amended by Supplemental Communication (Revised Attachment 2 – Removal of “2” from Maintenance Zone on pages 5 and 6 of the Orange County Transportation Authority FY 2024/25 – FY 2030/31 Capital Improvement Program). The motion as amended carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None PUBLIC HEARING 18. 24-406 Public Hearing held — Adopted Resolution No. 2024-30 Modifying the Management District Plan for the Huntington Beach Tourism Business Improvement District City Clerk Robin Estanislau reported that the Notice of Public Hearing was completed in the manner and form as required by Section 36636 of the California Streets and Highways Code. Kriss Casanova, Economic Development Manager, presented a PowerPoint communication titled Public Hearing to consider adoption of Resolution No. 2024-30 Modifying the Management District Plan for the Huntington Beach Tourism Business Improvement District, with slides entitled: Background; HBTBID; Visit Huntington Beach (VHB); HBTBID Modification Request; OC Product Additions/Enhancements; Proposed Modified Budget (2); HBTBID Modification Schedule; Management Agreement Modification; VHB Tourism Enhancement Programs; Public Hearing; Recommendation; and Questions? Manager Casanova announced that Kelly Miller, VisitHB President, was in attendance to answer any questions. Mayor Van Der Mark opened the Public Hearing. Pursuant to the Brown "Open Meetings" Act, City Clerk Robin Estanislau announced supplemental communications that were received by her office following distribution of the Council Agenda packet which were all uploaded to the City's website and Councilmember iPads: (1 letter) Public Speakers — 4 Speakers 20 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 14 of 20 Peter "PT" Townend, 45-year Huntington Beach resident was called to speak and stated his support for adoption of Resolution No. 2024-30 Modifying the Management District Plan for the Huntington Beach Tourism Improvement District. (02:13:56) Tony Duran, Huntington Beach resident and business owner, and Huntington Beach Downtown Business District Executive Director, was called to speak and stated his support for adoption of Resolution No. 2024-30 Modifying the Management District Plan for the Huntington Beach Tourism Improvement District. (02:15:02) Bethany Webb, long-time Huntington Beach resident, was called to speak and stated her support for adoption of Resolution No. 2024-30 Modifying the Management District Plan for the Huntington Beach Tourism Improvement District. She encouraged Councilmembers to focus on keeping Huntington Beach a family-friendly tourist destination. (02:17:03) Kelly Miller, Visit HB President and CEO was called to speak, and on behalf of himself and the Visit HB Board, stated support for adoption of Resolution No. 2024-30 Modifying the Management District Plan for the Huntington Beach Tourism Improvement District. He noted that Visit HB has supported Huntington Beach tourism for 33 years by helping to bring in millions of annual visitors to Surf City USA. He stated it has taken over a year of cooperation between the City and VisitHB to reach this point. He reminded everyone this plan adjusts the Huntington Beach Tourism Improvement District (TBID) assessment from 4 percent (4%) to six percent (6%) for overnight lodging businesses and clarified this is not a sales or property tax, but rather a fee paid by overnight lodging guests. He explained the funds are used to market, sell, and distribute public relations around the world promoting Surf City USA. Funds will also be used to enhance and promote various tourist enhancement projects as described in the presentation and supports local employment. (02:20:05) There being no more public speakers, Mayor Van Der Mark closed the Public Hearing. City Clerk Robin Estanislau reported receipt of one (1) protest totaling less than one percent (1%) of the total assessments proposed for levy. Therefore, the City Clerk’s Office has determined that a majority protest has not been received from owners or authorized representatives of businesses in the district that will pay 50% or more of the assessments proposed to be levied. Councilmember McKeon invited Mr. Miller, VisitHB President and CEO, to return to the podium and describe some of the major improvements coming to the Downtown area from Huntington Beach Tourism Improvement District funding: additional restrooms next to Zack's; continued monitoring through the Ambassador Program to ensure public safety; enhanced connectivity between Pacific City, the hotels, Downtown and Fifth Street; completion of the Wayfinding Project, including a sign over the Pier: Welcome to Huntington Beach Surf City USA; and focus on increasing utilities availability and access A motion was made by Strickland, second Burns to conduct the Public Hearing; and, since written protests of at least 50 percent or more of the total assessments were not received, adopt Resolution No. 2024-30, "A Resolution of the City Council of the City of Huntington Beach Declaring Results of Majority Protest Proceedings and Modifying the Huntington Beach Tourism Business Improvement District (HBTBID);" and, approve and authorize the City Manager to execute the Second Amendment to the Tourism Business Improvement District Management Agreement between the City of Huntington Beach and Visit Huntington Beach. The motion carried by the following roll call vote: 21 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 15 of 20 AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: None 19. 24-420 Adopted Resolution No. 2024-29 to Adopt a Budget for the City for Fiscal Year 2024/25; Resolution No. 2024-28 Establishing the Gann Appropriation Limit for Fiscal Year 2024/2025; Resolution No. 2024-27 Levying a Retirement Property Tax for Fiscal Year 2024/2025 to Pay for Pre-1978 Employee Retirement Benefits; Resolution No. 2024-24 Modifying Salary and Benefits for Non-Represented Employees by Adding the Deputy Public Works Director/City Engineer Classification; Resolution No. 2024-25 Amending the City’s Classification Plan by Adding the Classifications of Capital Projects Supervisor and Real Time Crime Center Supervisor; Resolution No. 2024-33 Modifying Salary and Benefits for Non- Represented Employees by Adding the Senior Deputy Community Prosecutor Classification and Establishing the Compensation and Amending the Non-Elected Non-Represented Employees Pay Schedule to Update the Compensation Range for the Chief Assistant City Attorney and Deputy Community Prosecutor; Resolution No. 2024-31 Adopting an Updated Master Fee and Charges Schedule, as amended; Resolution No. 2024-32 Setting Advanced Life Support, Basic Life Support, and Emergency Ambulance Transportation Fees to be Charged by the Fire Department of the City of Huntington Beach; and Resolution No. 2024-26 Acknowledging Receipt of a Report Made by the Fire Chief of the Huntington Beach Fire Department Regarding the Inspection of Certain Occupancies Required to Perform Annual Inspections in such Occupancies Pursuant to Sections 13146.2 and 13146.3 of the California Health and Safety Code; and Authorize the City Manager or Designee to Purchase One Triple Combination Pumper Engine in the Amount of $1,257,063. Sunny Han, Chief Financial Officer, presented a PowerPoint communication titled City of Huntington Beach FY 2025/25 Budget Adoption with slides entitled: Presentation Overview; FY 2024/25 General Fund Proposed Budget Review; FY 2024/25 General Fund Proposed Revenues – $301.7M (2); FY 2024/25 General Fund Proposed Expenditures – $300.0M; FY 2024/25 General Fund Proposed Expenditures – $300.0M Historical By Department; FY 2024/25 General Fund Proposed Expenditures – $300.0M; Recommended FY 2024/25 Authorized Positions (2); FY 2024/25 Full Time Equivalent – All Funds; EMS Cost Recovery Fee Adjustment; Master Fee and Charges Schedule Adjustments (8); Master Fee and Charges Schedule Summary; General Fund Long-Term Financial Plan with Proposed Master Fee and EMS Fee Changes; General Fund Long-Term Financial Plan without Proposed Master Fee and EMS Fee Changes; City Council Approval Requested; and Questions? (02:30:41) Councilmember McKeon, Chief Financial Officer (CFO) Han and various staff members reviewed General Fund Proposed Revenues, General Fund Proposed Expenditures, Authorized Positions, EMS Cost Recovery Fee Adjustment, Master Fee and Charges Schedule Adjustments, for the benefit of the public and addressed several concerns expressed earlier by public speakers. Councilmember McKeon confirmed with CFO Han that Resolution No. 2024-31 adopting an updated Master Fee and Charges Schedule, could be amended to exempt senior residents from increased Consumer Price Index (CPI) adjustments. Councilmember Bolton clarified that from her perspective, just because Councilmembers critique a particular department and its performance does not mean those employees should fear for their jobs. She stated she has some discomfort regarding all of the fee increases being proposed because there 22 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 16 of 20 are still big parts of the revenue stream that need to be figured out such as allowing un-hosted Short- Term Rentals in the coastal zone and cannabis. City Clerk Robin Estanislau explained that Councilmember questions prior to opening of the Public Hearing should focus on the budget material presented, and that opinions should be saved and shared AFTER the Public Hearing has been closed. Mayor Van Der Mark opened the Public Hearing. Pursuant to the Brown "Open Meetings" Act, City Clerk Robin Estanislau announced supplemental communications that were received by her office following distribution of the Council Agenda packet which were all uploaded to the City's website and Councilmember iPads: (1 staff PowerPoint communication, 1 letter, and 2 email communications) Public Speakers — 5 Cathey Ryder, 39-year Huntington Beach voter and homeowner, was called to speak and shared her opinions regarding the year-over-year cost increases associated with the City Attorney Office and stated her objection to the proposed 14% increase for the 2024/25 FY Budget for this department. (03:03:11) Unnamed Speaker was called to speak and shared her opinion that the demographics for income and housing costs for Huntington Beach are not the same as the demographics for Newport Beach and therefore should not be compared for budget purposes in establishing increased Master Fee rates. She also asked for an explanation as to why the budget for the City Attorney Office keeps increasing year after year while that office is experiencing increased legal losses. (03:05:22) Perry Clitheroe was called to speak and shared his opinion that in order to have a balanced budget services will have to be cut or taxes increased. He suggested allowing the free market to build housing and encouraged Councilmembers to decide where approximately 13,000 new housing units can be built. He expressed concern about the City subsidizing credit card fees, and staff confirmed for him the proposed fee increases take into consideration the potential reduction in users because of the fee increases. (03:07:42) Bethany Webb was called to speak and shared her concerns related to City Attorney Office legal losses, specifically the payout to Pacific Air Show Promoter Code Four; stated her support for allowing the sale of cannabis in Huntington Beach, and encouraged Councilmembers to increase the amount of affordable housing. (03:09:50) Ken Inouye was called to speak and noted that his prior reference to the $11M budget deficit is an "all funds" deficit and tonight's discussion appears to be limited to only the General Fund. (03:12:32) There being no more public speakers, Mayor Van Der Mark closed the public hearing. Councilmember Kalmick, responding to an email asking about the Professional Services expense category in the City Manager Office, and asked CFO Han to explain. CFO Han stated there is an $800,000 clean-up from Public Educational and Governmental [PEG] funds used on ineligible costs as well as one-time contracts that are carried over from the prior fiscal year. 23 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 17 of 20 Councilmember Kalmick stated his support for full cost recovery through fees and addressed subsidizing credit card fees, parking fees, and facility rent fees at City Hall. He confirmed that the increase in the City Clerk Office budget is due to the costs related to the upcoming election; that Fire and Police Department increases are due to new contracts; use of the “adopted” rather than “revised” budget for 2023/24 was to include carryovers and to be more consistent; Worker's Comp and trip and fall liability claims are shown under Human Resources; and General Fund non-departmental increase of nearly 7% includes the Waterfront transfer. Councilmember Kalmick stated his support for outsourcing at least one position in the City Attorney Office due to the cyclical nature of cases; concern about the lack of serious conversations about what to do in the out years now, rather than waiting 6 months to discuss recurring expenses; and lack of appropriate Council action regarding Short-Term Rentals and cannabis as income-producing options. Councilmember Strickland confirmed with Chief Financial Officer Han that the budget presented includes funding for approximately 35 – 40 of the current 107 open positions; more cities than Newport Beach were reviewed in determining Master Plan fees; disbursement of the $38M received from successful litigation by the City Attorney Office; discussion with City Attorney Michael Gates to define the process for his increased compensation; staff increases due to union negotiations; and noting that outside legal support is used on a consultation basis rather than handing off an entire case, unless there is internal conflict of interest which requires handing off the case. Councilmember Strickland noted last year Council addressed this year's projected deficit of $7M which actually resulted in a surplus this year. Councilmember Bolton reviewed with City Attorney Michael Gates the process for elected officials to receive increased compensation. Councilmember Moser recommended a Volunteer Coordinator position for Community and Library Services to focus on the things accomplished by library and park volunteers. She and Chief Financial Officer Han discussed the increase in the 2023/24 Budget vs the 2024/25 Budget for Human Resources as due to increased Worker's Comp costs and insurance cost increases due to a one-time exceptional case. Councilmember Moser and Fire Chief Haberle discussed the need to replace a 2005 Fire Engine, a process that takes two to four years, and noted that if the process is not started this fiscal year the Fire Engine would be pushing the 25-year mark which increases maintenance costs and decreases reliability. Chief Financial Officer Han confirmed that specific funds are set aside annually for equipment replacement. Councilmember Moser and Chief Financial Officer Han discussed the Revenues and Expenditures Total for All Funds $10.9M difference. Councilmember Moser stated her concern about not considering projected revenues and costs over a longer timeframe and consideration of potential actions to mitigate shortfalls moving forward such as Short-Term Rentals and cannabis. She requested more regular reporting and transparency from the City Attorney Office on budget for the benefit of Councilmembers and the public. Councilmember Kalmick referenced the Financial Outlook Report from February 15 Mid-Year Budget Update showing surpluses through FY 2025/26, and noted that deficits in out years is a relatively new situation. 24 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 18 of 20 Councilmember Strickland responded that last year's budget projection changes resulted in an actual surplus this year. City Clerk Robin Estanislau confirmed that Resolution No. 2024-31 adopting an Updated Master Fee and Charges Schedule was the only item amended through this discussion. Councilmember McKeon confirmed his amendment is to carve out or exempt the City's senior residents from the automatic Consumer Price Index (CPI) increase of not more than five percent. A motion was made by McKeon, second Strickland to A) Adopt Resolution No. 2024-29, "A Resolution of the City Council of the City of Huntington Beach Adopting a Budget for the City for Fiscal Year 2024/25" (Attachment 2); and, B) Authorize the Professional Services included in the FY 2024/25 budget to be representative of the services projected to be utilized by departments in FY 2024/25 (Attachment 3); and, C) Adopt Resolution No. 2024-28, "A Resolution of the City Council of the City of Huntington Beach Establishing the Gann Appropriation Limit for Fiscal Year 2024/2025" of $1,217,866,589" (Attachment 4); and, D) Adopt Resolution No. 2024-27, "A Resolution of the City Council of the City of Huntington Beach Levying a Retirement Property Tax for Fiscal Year 2024/2025 to Pay for Pre-1978 Employee Retirement Benefits" (Attachment 5); and, E) Adopt Resolution No. 2024-24, "A Resolution of the City Council of the City of Huntington Beach Modifying Salary and Benefits for Non-Represented Employees by Adding the Deputy Public Works Director/City Engineer Classification and Establishing the Compensation" (Attachment 6); and, F) Adopt Resolution No. 2024- 25, "A Resolution of the City Council of the City of Huntington Beach Amending the City's Classification Plan by Adding the Classifications of Capital Projects Supervisor and Real Time Crime Center Supervisor" (Attachment 7); and, G) Adopt Resolution No. 2024-33, "A Resolution of the City Council of the City of Huntington Beach Modifying Salary and Benefits for Non-Represented Employees by Adding the Senior Deputy Community Prosecutor Classification and Establishing the Compensation and Amending the Non-Elected Non-Represented Employees Pay Schedule to Update the Compensation Range for the Chief Assistant City Attorney and Deputy Community Prosecutor" (Attachment 8); and, H) Adopt Resolution No. 2024-31, "A Resolution of the City Council of the City of Huntington Beach Adopting an Updated Master Fee and Charges Schedule" (Attachment 9) as amended to exempt the City's senior residents from the automatic Consumer Price Index (CPI) increase of not more than five percent; and, I) Adopt Resolution No. 2024-32, "A Resolution of the City Council of the City of Huntington Beach Setting Advanced Life Support, Basic Life Support, and Emergency Ambulance Transportation Fees to be Charged by the Fire Department of the City of Huntington Beach" (Attachment 10); and, J) Adopt Resolution No. 2024-26, "A Resolution of the City Council of the City of Huntington Beach, California Acknowledging Receipt of a Report Made by the Fire Chief of the Huntington Beach Fire Department Regarding the Inspection of Certain Occupancies Required to Perform Annual Inspections in such Occupancies Pursuant to Sections 13146.2 and 13146.3 of the California Health and Safety Code" (Attachment 11); and, K) Authorize the City Manager or designee to purchase one Triple Combination Pumper Engine in the amount of $1,257,063; and L) Direct 40 percent of Huntington Central Park Sports Complex (HCPSC) Tournaments and Special Events Parking to the HCPSC Capital Improvements Fund (Fund 325) to provide for HCPSC capital improvements. The motion as amended carried by the following roll call vote: AYES: Moser, Bolton, Burns, Van Der Mark, Strickland, McKeon, and Kalmick NOES: Bolton, Resolution No. 2024-31 as amended relating to CPI adjustments for senior residents 25 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 19 of 20 COUNCIL MEMBER ITEMS 20. 24-433 WITHDRAWN — Item Submitted by Council Member Kalmick — Water is Wet, Sky is Blue Councilmember Kalmick apologized for even having to place this item on the agenda. Councilmember Bolton questioned if either Councilmember Items #20 or #21 relate to the budget, homelessness, or any other topic that Council should be focused on. Councilmember Kalmick responded that neither item is related to solving budget deficits or issues that affect the residents, and that is where he would like to focus his efforts, rather than on national issues. He withdrew his item from the agenda and announced he was leaving the meeting. At 10:03 PM, Councilmembers Bolton, Kalmick, and Moser left the meeting. Councilmember Strickland stated he believes Council has been focused on the business of the people, including approving tools necessary so the Police and Fire Departments can keep public safety as their #1 priority; noting that officials from San Diego and Oceanside are visiting to learn how homelessness is being reduced in Huntington Beach; just approved the 2024/25 Budget; reduced last year the projected $7M Budget deficit for 2024; approved the proposed Management District Plan for the Huntington Beach Tourism Business Improvement District; and that saving the Pacific Air Show will provide over $100M to the local economy. He added his opinion that the remaining body of four can be more productive without the interference of those who walked out of this meeting. 21. 24-427 Affirmed Item Submitted by Mayor Pro Tem Burns — the Huntington Beach City Council’s Commitment to the United States Constitution and Special Recognition that Huntington Beach is a 1st and 2nd Amendment Friendly City Mayor Pro Tem Burns read his Issue Statement from his memo supporting this Council Member Item. He noted this action is the result of a conversation with a concerned resident, which he considers a bi- partisan issue. Councilmember Strickland quoted Martin Luther King, Jr., "Injustice anywhere is a threat to justice everywhere." He added there is a lot of injustice in this country, people don't like it, and he thanked Mayor Pro Tem Burns for bringing this item forward. Councilmember McKeon stated we are a nation built on laws which have been shredded the last few years which results in the decay of society. He stated his support for re-affirming his commitment to the rule of law and the Constitution of the United States. Mayor Van Der Mark stated her support for re-affirming her commitment to the Constitution and shared her disappointment that three Councilmembers would choose to walk out rather than participate in this discussion. A motion was made by Burns, second Strickland that the City of Huntington Beach City Council affirms and communicates our commitment and respect for the Constitution of the United States of America, and with special recognition that Huntington Beach is a 1st and 2nd Amendment friendly city. The motion carried by the following roll call vote: 26 Council/PFA Regular Meeting Housing Authority Special Meeting June 4, 2024, Page 20 of 20 AYES: Burns, Van Der Mark, Strickland, and McKeon NOES: None ABSENT: Moser, Bolton, and Kalmick ADJOURNMENT — at 10:10 PM, a motion was made by McKeon, with a second by Van Der Mark, to adjourn to the next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority on Tuesday, June 18, 2024, in the Civic Center Council Chambers, 2000 Main Street, Huntington Beach, California. INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT http://www.huntingtonbeachca.gov _______________________________________ City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach and Secretary of the Public Financing Authority of the City of Huntington Beach, California ATTEST: ______________________________________ City Clerk-Secretary ______________________________________ Mayor-Chair 27 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:23-977 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL / HOUSING AUTHORITY ACTION SUBMITTED TO:Honorable Mayor and City Council Members / Honorable Chair and Board Members SUBMITTED BY:Eric G. Parra, Interim City Manager VIA:Jennifer Villasenor, Acting Director of Community Development PREPARED BY:Charles Kovac, Housing Manager Subject: Approve and authorize the execution of an Affordable Housing Agreement between the City of Huntington Beach and TPG AG EHC III (LSEA) CA 3, L.P. for a residential development consisting of 13 new affordable townhomes located at 7225 Edinger Avenue Statement of Issue: It is recommended that the City Council approve an Affordable Housing Agreement (“Agreement”) between the City of Huntington Beach (“City”) and TPG AG EHC III (LSEA) CA 3, L.P.,in conjunction with Landsea Homes of California LLC (together referred to as the “Developer”),to facilitate the development of a 5.6-acre site located at 7225 Edinger Avenue (“Project”). The Project consists of 129 ownership townhome units, with this Agreement stipulating that thirteen (13) units will be reserved for moderate-income households for a period of 45 years. Financial Impact: Not applicable. Recommended Action: A) Approve the Affordable Housing Agreement between the City of Huntington Beach and TPG AG EHC III (LSEA) CA 3, L.P. for the development of 13 affordable units at 7225 Edinger Avenue; and, B) Authorize the City Manager or their designee to implement and execute the Affordable Housing Agreement for the Project, including all necessary related documents; and, C) Authorize the Housing Authority Executive Director or their designee to execute all necessary implementing agreements and related documents. Alternative Action(s): Do not approve the recommended action and direct staff accordingly. City of Huntington Beach Printed on 6/12/2024Page 1 of 3 powered by Legistar™28 File #:23-977 MEETING DATE:6/18/2024 Analysis: Background On March 28, 2023,the Developer obtained approval from the Planning Commission for Tentative Tract Map No. 19174 and Conditional Use Permit (CUP) No. 22-021 for the construction of a 129-unit townhome project at 7225 Edinger Avenue (Attachment 1). The 5.6-acre Project site is located on the north side of Edinger Avenue,one parcel west of Gothard Street,adjacent to Golden West College. Presently, the site consists of a commercial center and is located within the Beach and Edinger Corridors Specific Plan (BECSP). The proposed layout is comprised of 16 three-story residential buildings arranged predominantly linearly across the property. The Project features 10 floor plans ranging from approximately 1,100 to 2,500 square feet and units with 2 to 4 bedrooms and a 2-car garage. Project Status The project is currently undergoing plan check for grading. The Developer has applied for permits to demolish the existing buildings, which are being reviewed by the City. Affordable Housing The Project falls under the City’s Inclusionary Housing Ordinance (“Ordinance”) as outlined in the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) Chapter 230.26. This mandates that ten percent of new housing within the Project must be affordable to households earning no more than 120 percent (moderate income) of the Orange County median income. Complying with the HBZSO, the Developer agrees that, out of the 129 ownership units permitted under the City’s development standards, thirteen (13) units will be designated for moderate-income households. Moreover, under California Government Code Section 65915 (the “State Density Bonus Law”), implemented under HBZSO Chapter 230.14, developers incorporating specified levels of affordable housing in their projects are entitled to certain density bonuses,incentives,or concessions. While the Developer did not seek an increase in the Project density, they are entitled to one concession and a reduction in parking standards as part of the project approvals. A concession,as defined, encompasses a reduction in site development standards or zoning code modifications, among others. In this instance, the Developer proposed and was approved for a concession reducing the space between buildings from 20 feet to a minimum of 14 feet, 9 inches having demonstrated that adhering to the 20-foot requirement would result in the loss of 11 units and an increase of $30,000 per unit in construction costs. Additionally, the Developer is eligible to provide parking according to the parking ratios allowed under the State Density Bonus Law. Pursuant to the State Density Bonus Law parking standards, the project must provide a minimum of 277 parking spaces based on the mix of two, three, and four- bedroom units. The project provides 314 parking spaces total, which includes a two-car garage for each unit. While the project parking exceeds the State prescribed parking standards, it does not meet the overall parking requirement of the BECSP. Nevertheless, the Planning Commission approved this parking reduction in conjunction with the associated project entitlements. City of Huntington Beach Printed on 6/12/2024Page 2 of 3 powered by Legistar™29 File #:23-977 MEETING DATE:6/18/2024 To obtain the described concession and parking standard reduction, the Developer must ensure that no less than 10 percent or thirteen (13) of the total 129 units remain affordable to moderate-income households for 45 years. The proposed Agreement memorializes this requirement, with covenants implementing the Agreement recorded on the individual property titles to ensure 13 units are owned and occupied by moderate-income households, as defined in Health and Safety Code Section 50093, for the specified period. The Developer will construct the Project in multiple phases and sell individual units to eligible homebuyers as verified by City staff. Maximum moderate-income sales prices for the 13 units will be set per the Agreement. The Huntington Beach Housing Authority (Housing Authority),established in 2011 by the City Council, oversees and monitors the City’s affordable housing inventory. Consequently, the proposed Agreement includes certain underlying documents (e.g., Declaration of Conditions, Covenants, and Restrictions) to which the Housing Authority will be party. Therefore,the Housing Authority Board is requested to authorize the Executive Director to execute all necessary implementing documents. The proposed Agreement,prepared by the City Attorney’s Office,is included as Attachment 2.Upon approval by the City Council and Housing Authority, the proposed Agreement and related recordable documents will be executed and deposited into an escrow account for closing on the property acquisition by the Developer in mid-June 2024. Environmental Status: At the time of project approval, the Planning Commission determined that the Project conforms to the BECSP, including the Program Environmental Impact Report 08-008 (“Program EIR”), which was certified by the City in connection with its adoption of the BECSP. The Program EIR analyzed the potential environmental impacts of all anticipated development activity in the Specific Plan area including the proposed Project. The proposed Project will comply with all mitigation measures required by the Program EIR. Strategic Plan Goal: Economic Development & Housing Attachment(s): 1. March 28, 2023 Planning Commission Staff Report and Minutes 2. Affordable Housing Agreement by and between the City of Huntington Beach and TPG AG EHC III (LSEA) CA 3, L.P. 3. June 4, 2024 City Council Meeting PowerPoint Presentation City of Huntington Beach Printed on 6/12/2024Page 3 of 3 powered by Legistar™30 31 File#: 23-181 TO: FROM: BY: SUBJECT: City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 MEETING DATE: 3/28/2023 PLANNING COMMISSION STAFF REPORT Planning Commission Ursula Luna-Reynosa, Community Development Director Ricky Ramos, Principal Planner TENTATIVE TRACT MAP (TTM) NO. 19174/CONDITIONAL USE PERMIT (CUP) NO. 22-021 (BRANDYWINE TOWNHOMES) REQUEST: LOCATION: APPLICANT: PROPERTY OWNER: BUSINESS OWNER: TTM: To subdivide a 5.6 acre site for condominium purposes. CUP: To develop a project with 130 attached 3-story townhomes up to 40 feet tall and no commercial component. The request includes a transfer of 130 dwelling units from Beach Boulevard to Edinger Avenue within the Beach and Edinger Corridors Specific Plan. 7225 Edinger Ave., 92647 (north side, 200 feet west of Gothard St.) Angela Meyer, Brandywine Homes, 16580 Aston, Irvine, CA 92606 Freeway Industrial Park, 1100 W. Town and Country Road, Suite 1250, PMB #2337, Orange, CA 92868 Not applicable PROJECT PROPOSAL: The applicant is proposing to subdivide and redevelop the approximately 5.6 acre site with 130 attached townhomes (Attachment No. 3). The project includes the following requests: Tentative Tract Map No. 19174 -To subdivide a 5.6 acre site for condominium purposes. Conditional Use Permit No. 22-021 -To develop a project with 130 attached 3-story townhomes up to City of Huntington Beach Page 1 of 14 Printed on 3/21/2023 powered by Legistar ™ 32 File#: 23-181 MEETING DATE: 3/28/2023 40 feet tall and no commercial component. The request includes a transfer of 130 dwelling units from Beach Boulevard to Edinger Avenue within the Beach and Edinger Corridors Specific Plan (BECSP), a concession to reduce the required space between buildings, and reduced parking. The site is currently developed with a commercial center which will be demolished. RECOMMENDATION: That the Planning Commission take the following actions: A) Find the proposed project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15182 of the CEQA Guidelines and Government Code 65457. B) Approve Tentative Tract Map No. 19174 and Conditional Use Permit No. 22-021, including a transfer of 130 dwelling units, with suggested findings and conditions of approval (Attachment No. 1 ). ALTERNATIVE ACTION(S): A) Deny Tentative Tract Map No. 19174 and Conditional Use Permit No. 22-021, including a transfer of 130 dwelling units, with findings for denial. B) Continue Tentative Tract Map No. 19174 and Conditional Use Permit No. 22-021, including a transfer of 130 dwelling units, and direct staff accordingly. Background: In 2010, the City adopted BECSP. The goal of BECSP was to transform the current development of commercial strip centers lined with surface parking lots and generally low-rise commercial buildings to a pattern of centers and segments characterized with clusters of shops and activity of varying intensity. These new active areas would include a mix of residential, offices, and commercial uses oriented to alternative modes of transportation including walking and bicycling. In 2015, the City Council amended BECSP to decrease the total number of residential units allowed from 4,500 to 2,100, increase setbacks, increase minimum parking standards, require upper story setbacks, require a commercial component in all residential buildings, and permit residential subject to approval of a CUP. Other amendments related to auto dealers and civic and cultural uses were also approved. Out of the 2,100 Maximum Amount of New Development (MAND) units currently permitted, 1,900 have been constructed leaving a balance of 200 units along Beach Boulevard. ISSUES AND ANALYSIS: Subject Property And Surrounding General Plan Designations. Zoning And Land Uses: jvlCINITY MAP City of Huntington Beach Page 2 of 14 Printed on 3/21/2023 powered by Legistar™ 33 File#: 23-181 LO GENER ZO LAND USE ON Mixed USpeCommercial (Be Car SP Commercial SP Multi-Family Residential City of Huntington Beach Page 3 of 14 MEETING DATE: 3/28/2023 Printed on 3/21/2023 powered by Legistar ™ 34 File#: 23-181 MEETING DATE: 3/28/2023 General Plan Conformance: The General Plan Land Use Map designation on the subject property is Mixed Use -Specific Plan Overlay. The project is consistent with this designation and the goals and policies of the General Plan as follows: A. Land Use Element Goal LU-1 -New commercial, industrial, and residential development is coordinated to ensure that the land use pattern is consistent with the overall goals and needs of the community. Policy LU-1A -Ensure that development is consistent with the land use designations presented in the Land Use Map, including density, intensity, and use standards applicable to each land use designation. Policy LU-1 C -Support infill development, consolidation of parcels, and adaptive reuse of existing buildings. Policy LU-1 D -Ensure that new development projects are of compatible proportion, scale and character to complement adjoining uses. Policy LU-2E -Intensify the use and strengthen the role of public art, architecture, landscaping, site design, and development patterns to enhance the visual image of Huntington Beach. Goal LU-4 -A range of housing types is available to meet the diverse economic, physical, and social needs of future and existing residents, while neighborhood character and residences are well maintained and protected. Policy LU-4A -Encourage a mix of residential types to accommodate people with diverse housing needs. Policy LU-4B -Improve options for people to live near work and public transit. Policy LU-4E -Encourage housing options located in proximity to employment to reduce vehicle miles traveled. Goal LU-7 -Neighborhoods, corridors, and community subareas are well designed, and buildings, enhanced streets, and public spaces contribute to a strong sense of place. The project will redevelop an infill site with townhomes to address the diverse housing needs of the community. It will be compatible with the character of the neighborhood which consists of a mix of commercial and residential with light industrial uses further away. It will provide additional opportunities for ownership housing near employment and public transit. The project proposes an architectural style that is in keeping with the proportion, scale, and character of the neighborhood. The proposed 3-story townhomes will be a story less than the more recent 4-and 5-story multi- family residential projects built in the area. It is consistent with the development standards in BECSP and Huntington Beach Zoning and Subdivision Ordinance (HBZSO) except for reduced City of Huntington Beach Page 4 of 14 Printed on 3/21/2023 powered by Legistar™ 35 File#: 23-181 MEETING DATE: 3/28/2023 parking and a concession to building separation permitted under the California Density Bonus Law. B. Housing Element Goal 2 -Provide adequate housing sites through appropriate land use, zoning and specific plan designations to accommodate Huntington Beach's share of regional housing needs. Policy 2.1. -Provide site opportunities for development of housing that responds to diverse community needs in terms of housing types, cost and location, emphasizing locations near services and transit that promote walkability. Policy 2.3 -Encourage and facilitate the prov1s1on of housing affordable to lower income households within the Beach and Edinger Corridors Specific Plan. Goal 3 -Enhance housing affordability so that modest income households can remain an integral part of the Huntington Beach community. Policy 3.1 -Encourage the production of housing that meets all economic segments of the community, including lower, moderate, and upper income households, to maintain a balanced community. Policy 3.2 -Utilize the City's lnclusionary Housing Ordinance as a tool to integrate affordable units within market rate developments. Continue to prioritize the construction of affordable units on-site, with provision of units off-site or payment of an in-lieu housing fee as a less preferred alternative. Policy 3.3 -Facilitate the development of affordable housing through regulatory incentives and concessions, and/or financial assistance, with funding priority to projects that include extremely low income units. Proactively seek out new models and approaches in the provision of affordable housing. Policy 3.4 -Explore collaborative partnerships with non-profit organizations, developers, the business community and governmental agencies in the provision of affordable housing. Policy 4.1 -Support the use of density bonuses and other incentives, such as fee deferrals/waivers and parking reductions, to offset or reduce the costs of developing affordable housing while ensuring that potential impacts are addressed. Policy 6.4 -Incorporate transit and other transportation alternatives including walking and bicycling into the design of new development, particularly in areas within a half mile of designated transit stops. The project will redevelop an underutilized commercial center with a townhome project that will provide more homeownership opportunities to address the diverse housing needs of the community. The project will comply with the City's affordable housing requirement to provide 10 percent of the proposed dwelling units as affordable units. Due to the provision of affordable City of Huntington Beach Page 5 of 14 Printed on 3/21/2023 powered by Legistar '" 36 File#: 23-181 MEETING DATE: 3/28/2023 housing, the applicant is entitled to reduced parking and any concessions and waivers as permitted by the California Density Bonus Law. The project is located near transit, employment, and services which can facilitate alternative forms of transportation. C. Circulation Element Goal CIRC-3A -Convenient and efficient connections between regional transit and areas of employment, shopping, recreation, and housing will increase ridership and active mobility, with a focus on first/last mile solutions. Policy CIRC-6C -Require new commercial and residential projects to integrate with pedestrian and bicycle networks, and that necessary land area is provided for the infrastructure. The project site is located near public transportation, including the Golden West Transportation Center, as well as employment and shopping. The project will be installing Classic Boulevard frontage improvements to match recent developments in the area as required by BECSP which includes up to a 12 foot wide sidewalk along the Edinger Avenue frontage. That combined with the bike racks that will be provided onsite will facilitate active mobility and could increase transit ridership. Zoning Compliance: The residential project complies with the requirements of BECSP and Huntington Beach Zoning and Subdivision Ordinance (HBZSO), including regulations pertaining to subdivisions. Below is a zoning conformance matrix that compares the proposed project with the main development standards in BECSP. Section Development Standards Code Provision Proposed Compliance 2.3.1 Max. building height 4 stories 3 stories rtes 2.3.3 Max. building length 300 ft. 275 ft. r-t'es 2.4.3-5 Min. setbacks Front -30 ft. Side -41 ft. 10 ft. 10 ft. r{es 10 ft. Rear-10 ft. 2.5.1 Improvements to existing Classic Blvd. Classic Blvd. rtes streets 2.6.1 Public Open Space 50 s.f./unit 50 s.f./unit rtes 2.6.3 Private Open Space 60 s.f./unit 64 to 216 s.f./unit rfes Land Use Compatibility The project is compatible with the area which consists of a mix of commercial and residential with light industrial uses further away. Immediately to the east of the site are a variety of commercial uses, with Golden West College to the north and west, and a residential development to the south across Edinger Avenue. The proposed 3-story townhome project is in keeping with the character of the area including several nearby 4-and 5-story residential projects (Luce, Boardwalk, and Avalon apartments) developed since the adoption of the BECSP as well as the Residences at Bella Terra. The table below provides a comparison of the density of the proposed project and nearby residential developments in BECSP and shows that this project is significantly less dense than the other projects City of Huntington Beach Page 6 of 14 Printed on 3/21/2023 powered by Legistar™ 37 File#: 23-181 MEETING DATE: 3/28/2023 listed. PROJECT UNIT COUNT SITE SIZE DENSITY Brandywine Townhomes 130 5.6 acres 123.2 units/acre Luce Apartments 510 8.5 acres 60 units/acre Boardwalk Apartments 1487 12.5 acres (mixed use) 39 units/acre Avalon Apartments 378 3.8 acres (mixed use) 100 units/acre Golden West College (GWC) expressed concerns about the proximity of the project to its Criminal Justice Training Center located immediately north of the project site where they conduct law enforcement training and testing. The applicant substantially modified the proposed project by eliminating all windows on the 2nd and 3rd stories of buildings 5, 6, and 9 facing north towards GWC and proposing an evergreen landscape screen that can grow up to 30 feet tall at maturity along the majority of the north and west project boundaries to maintain GWC's privacy. The applicant also conducted a noise study which indicates that the proposed project will meet established residential indoor and outdoor (common open space) noise standards after considering noise levels from surrounding uses and vehicular traffic. An updated noise study will be required prior to issuance of building permits to address noise from the law enforcement training pursuant to BECSP mitigation measures. Site Layout/Tract Map The project provides adequate vehicular access through a 28 foot wide driveway off Edinger Avenue which connects to a drive aisle that loops around the site and provides access to each unit. Gated emergency access is proposed at the northeast corner of the site which connects to an access easement across the adjacent commercial property to the east providing access to Gothard. The development includes Classic Boulevard public frontage improvements incorporating a sidewalk, angled parking, drive aisle, and landscaping that is a continuation of similar improvements at the adjacent car wash/retail property to the west. It will provide continuous circulation and replace the existing reciprocal access between the two properties. The applicant will be required to make median and signing/striping improvements on Edinger to facilitate proper circulation. The sidewalk facilitates access to the surrounding development and supports active transportation in a pedestrian- oriented environment to nearby entertainment, services, employment opportunities, and public transit. Internal pedestrian access will be through a series of walkways proposed throughout the project. In order to restore fire access for the adjacent car wash/retail property, the applicant is planning to install a new fire lane that connects to Edinger Avenue. The project includes 16 residential buildings mostly arranged in a linear fashion throughout the property as well as a few in a Li-shaped configuration around a parking court. The entrance to the units are oriented along the main drive aisle, walkways, and landscaped common areas. The two buildings along Edinger are setback 41 feet to provide an adequate buffer from vehicular traffic. A required 10 foot setback is planned along the west and north sides abutting Golden West College. The majority of the townhomes are setback approximately 40 to 50 feet from the east property line to provide good separation next to commercial uses. Required public open space of 50 square feet per unit is proposed on the west side of the property City of Huntington Beach Page 7 of 14 Printed on 3/21/2023 powered by Legistar™ 38 File#: 23-181 MEETING DATE: 3/28/2023 facing Edinger to allow public access. In order to meet the required public open space area, the applicant will have to eliminate one dwelling unit. Each unit includes a balcony/deck to meet the required private open space requirement of 60 square feet per unit. In addition, common private open space is planned in the middle of the site and will include a common area building, pool, bbq, seating, and restrooms. The project complies with all BECSP and HBZSO development standards except for reduced parking and a concession to building separation as permitted under the California Density Bonus Law. The proposed one lot condominium TTM is consistent with the General Plan and zoning designation. The site is physically suitable for the type and density of development proposed because the subject property is located in a mixed-use neighborhood with similar residential development including some under the same General Plan land use and zoning designations. The site's size, shape, and flat topography are conducive to the development of a new residential project that conforms to the General Plan, BECSP, HBZSO, and other city requirements and is in keeping with the character of the surrounding neighborhood. The proposed grading plan minimizes pad elevations and retaining walls to remain compatible with the surrounding properties while still allowing the site to function and drain properly. The design of the subdivision or the proposed improvements will not cause serious health problems or substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat because the property is an infill site that has been previously been disturbed and is void of any wildlife habitat. The subdivision will provide all necessary vehicular access, sidewalk, and utility easements to serve the new development. Conditional Use Permit Multi-family residential projects in BECSP require a CUP from the Planning Commission and must include a retail/commercial component at street level unless a deviation is permitted. The proposed townhome project will improve an existing underutilized commercial center and provide a new home ownership opportunity in the area. The applicant has submitted 10 floor plans ranging from about 1,100 to 2,500 square feet with 2 to 4 bedrooms and a 2-car garage. Each unit will have 3 stories with a maximum height of under 40 feet which complies with BECSP and is lower than the surrounding 4-and 5-story apartments built since the adoption of BECSP. The project will not be detrimental to the general welfare of persons working or residing in the vicinity or detrimental to the value of the property and improvements in the neighborhood because it will be compatible with the bulk and scale of existing residential uses in the project vicinity and proposes less density. The applicant's request to eliminate the required commercial component will not affect access to goods and services as there are numerous commercial uses and a regional mall in the area. In addition, demand for commercial space has been reduced due to e-commerce. The project includes facade breaks, roof line variations, and architectural treatment to minimize overall building mass and scale and create an attractive design. The 2 buildings along the Edinger frontage, as modified by a code requirement, provides wall offsets and will include additional materials to enhance its appearance and contribute to a pleasing street scene. The dwellings will be separated from surrounding uses by a 6 foot tall block wall, landscaping and adequate setback. The granting of the conditional use permit will not adversely affect the General Plan because the project will be consistent with the Mixed Use Land Use Element designation established in the area. The proposed project will comply with the provisions of the BECSP and other applicable provisions in Titles 20-25 of the HBZSO with the exception of reduced parking and a concession to the required City of Huntington Beach Page 8 of 14 Printed on 3/21/2023 powered by Legistar™ 39 File#: 23-181 building separation permitted under the California Density Bonus Law. Density Transfer MEETING DATE: 3/28/2023 As noted previously, BECSP currently permits a MAND of 2,100 dwelling units (1,375 on Edinger and 725 on Beach) 1,900 of which have been constructed leaving a balance of 200 dwelling units along Beach Boulevard. The applicant is requesting a transfer of 130 dwelling units to Edinger Avenue. BECSP permits such a transfer subject to the following requirements: 1. An Infrastructure Analysis documenting that the transfer does not exceed proposed infrastructure capacity. If capacity will be exceeded based on the required analysis, recommendations for additional infrastructure improvements must also be submitted. Required infrastructure modifications shall be the responsibility of the party requesting the transfer, and shall be placed as conditions of approval of the appropriate development entitlement. 2. An Environmental Analysis in the form of the City's Initial Study documentation that the proposed transfer will not affect the conclusions of the environmental analysis contained in Certified EIR No. 08-008. If the conclusions are affected, additional environmental analysis may be required. 3. A policy analysis documenting that the transfer is consistent with the goals, policies, and programs of the City of Huntington Beach General Plan and this Specific Plan. Preliminary infrastructure studies have been reviewed by Public Works staff. Staff has provided code requirements identifying additional information and requirements that will be addressed during plan check to ensure existing infrastructure is suitable for the project or to identify required improvements. The applicant will be responsible for all required infrastructure improvements needed to serve the additional dwelling units proposed and to ensure that the proposed project does not exceed the infrastructure capacity in the area. EIR No. 08-008 was certified as part of the initial adoption of BECSP and analyzed an increase of up to 4,500 dwelling units (1,745 on Edinger and 2,755 on Beach), 738,000 square feet of retail, 350 hotel rooms, and 112,000 square feet of office uses within the specific plan area. The EIR included mitigation measures to mitigate the impacts from the full buildout of BECSP. To date, 1,375 dwelling units have be constructed on Edinger within BECSP. The addition of 130 town homes would result in a total increase of 1,505 dwelling units on Edinger since the adoption of BECSP which is below the 1,745 dwelling units analyzed in the EIR and planned for Edinger Avenue. Therefore, no further CEQA analysis is required. The General Plan conformance section of this report demonstrates that the project is consistent with the goals and policies of the General Plan. Lastly, the project, as modified by code requirements, will be consistent with the requirements of BECSP except for parking reduction and a concession to building separation permitted under the California Density Bonus Law as discussed below. California Density Bonus Law The applicant is seeking to invoke development tools and privileges outlined in the California Density City of Huntington Beach Page 9 of 14 Printed on 3/21/2023 powered by Legistar m 40 File#: 23-181 MEETING DATE: 3/28/2023 Bonus Law (CDBL) (found in the California Government Code Sections 65915-65918). As stipulated in the CDBL, projects providing affordable housing are entitled to a density bonus on a sliding scale based on the percentage of affordable units at each income level. In addition to a density bonus, local jurisdictions are required to grant concessions to housing projects containing a percentage of affordable units. A concession is defined as any of the following: a reduction in site development standards or a modification of zoning code or architectural design requirements (e.g., a reduction in setback or minimum square footage requirements), approval of mixed use zoning, or other regulatory concessions which result in identifiable and actual cost reductions. The number of required concessions that are granted to an applicant is based on the percentage of affordable units included as part the project. Projects that include 10 percent of the proposed units as affordable to moderate income households like the proposed project are entitled to one concession. Concessions are permitted unless it does not result in identifiable and actual cost reductions, would cause a public health or safety problem, would harm historical property, or would be contrary to the law. In addition to granting concessions, developments qualifying for a density bonus also can receive an unlimited number of waivers from development standards. As such, the City is not permitted to apply development standards that would physically prevent the project from being developed at the permitted density with the granted concessions. However, the City is not required to waive or reduce development standards that would cause a public health or safety problem, cause an environmental problem, harm historical property, or would be contrary to law. A waiver of a development standard does not count as a concession, and there is no limit on the number of development standard waivers that may be requested or granted. In addition, the CDBL stipulates that the City may not require parking at ratios beyond what is established in the CDBL upon the developer's request. Consistent with the CDBL, the project includes the following: Density Bonus: The applicant is not requesting a density bonus. Concession: The applicant is requesting a concession to reduce the required space between buildings from 20 feet to a minimum of 14 ft.-9 in. between residential buildings and 10 ft. to a common area building. The applicant has indicated that the concession will result in a cost reduction by allowing the project to have 11 additional units which allows for a reduction in the per unit construction costs making the project financially feasible. If the 20 foot building separation were required, 11 units will be lost which increases the per unit cost of construction by nearly $30,000 per unit. Waivers: The applicant is not requesting any waivers. Reduced Parking Ratio: Per the CDBL, the City may not require more than the parking ratios for a density bonus project (inclusive of parking for persons with disabilities) outlined in the table below. As illustrated by this table, the proposed project would provide more spaces than what is required by the CDBL. City of Huntington Beach Page 10 of 14 Printed on 3/21/2023 powered by Legistar™ 41 File#: 23-181 MEETING DATE: 3/28/2023 Unit Type Type Required Required Maximum Required Provided Count Parking Ratio Parking Parking Parking Parking by per City Code Spaces Requirements Spaces per the Project per City per State Law State Law Code 2 Bedroom 14 units 2 per unit 28 1.5 per unit 121 28 3 Bedroom 32 units 2.5 per unit 80 1.5 per unit 148 64 14 Bedroom 83 units 2.5 per unit 208 2.5 per unit 208 166 0.5 guest space 65 0 spaces 0 56 per unit Total 381 277 314 Quimby Act and Affordable Housing The Community Services and Library Department has determined that additional public park area within the project area is not needed. Instead the project will pay park and recreation in lieu fees to satisfy Quimby Act requirements pursuant to Chapter 254 of the HBZSO. Pursuant to the HBZSO, the project is required to comply with affordable housing requirements and will provide 10 percent of the proposed project as affordable units. The income restricted units must be provided on-site with the new development in order to qualify for density bonus and its other benefits. Urban Design Guidelines Conformance: The project will comply with the architectural regulations and guidelines of BECSP. A detailed discussion of the project's design was provided in the Analysis section of this staff report. Below are the site plan, perspective, and representative building elevation. City of Huntington Beach Page 11 of 14 Printed on 3/21/2023 powered by Legistar™ 42 File#: 23-181 Site Plan Perspective City of Huntington Beach Page 12 of 14 MEETING DATE: 3/28/2023 Printed on 3/21/2023 powered by Legistar'" 43 File#: 23-181 Building Elevation Environmental Status: MEETING DATE: 3/28/2023 The project will not have any significant effect on the environment and is exempt from the provisions of CEQA pursuant to section 15182 of the CEQA Guidelines and Government Code 65457, because the project is a residential development that conforms to the BECSP for which Program EIR No. 08- 008 was adopted and implementation of the project would not result in any new or more severe potentially adverse environmental impacts that were not considered in the Final EIR for the BECSP. The project is required to comply with all applicable mitigation measures adopted for BECSP. In light of the whole record, none of the circumstances described under Section 15162 of the CEQA Guidelines are present and, therefore, no EIR or MND is required. Coastal Status: Not applicable. Design Review Board: Not applicable. Other Departments Concerns and Requirements: Public Works, Building, Fire, Police, and Community Services staff reviewed the proposed project and identified code requirements applicable to the project. The Public Works Department identified one condition that has been incorporated into the suggested conditions of approval (Attachment No. 1 ). Public Notification: Legal notice was published in the Huntington Beach Wave on Thursday, December 1, 2022 and notices were sent to property owners of record and occupants within a 500 ft. radius of the subject property, individuals/organizations requesting notification (Community Development Department's Notification Matrix), and applicant. Written communications received as of December 6, 2022 are attached to this staff report (Attachment No. 6). Application Processing Dates: DATE OF COMPLETE APPLICATION: October 20, 2022 City of Huntington Beach MANDATORY PROCESSING DATE(S): 60 days after applicant provides required notice Page 13 of 14 Printed on 3/21/2023 powered by Legistar ™ 44 File#: 23-181 MEETING DATE: 3/28/2023 SUMMARY: Staff recommends approval of TTM No. 19174 and CUP No. 22-021 with findings and conditions (Attachment No. 1 ). This recommendation is based on the following: -The project is consistent with the General Plan and its goals and policies. -The project is compatible with the surrounding area. -The TTM meets the requirements of the Subdivision Map Act. -The project complies with the provisions of BECSP and HBZSO with the exception of the proposed parking reduction and concession permitted under the CDBL. -The project adds to the City's housing stock, including affordable housing, and RHNA targets. ATTACHMENTS: 1. Suggested Findings and Conditions of Approval of TTM No. 19174 and CUP No. 22-021 2. Vicinity Map 3. Project Narrative received September 20, 2022 4. Project Entitlement Plans received September 20, 2022 and March 20, 2023 5. Code Requirements Letter (for informational purposes only) dated Dec. 1, 2022 6. Letters in Opposition/Support 7. Police Department memo dated Julv 2, 2022 City of Huntington Beach Page 14 of 14 Printed on 3/21/2023 powered by Legistar™ 45 MlNUTES HUNTINGTON BEACH PLANNING COMMISSION TtJESDA Y, MARCH 2tl, 2023 HUNTINGTON BEACH CIVIC Cl=NTER 2000 MAIN STREET, HUNTINGTON BEACH, CALIFORNIA 9.2648 6:0.0 P.M. -COUNCIL CHAMBERS CALL PLANNING COMNilSSION>MEETING TO ORDER PLEDGE OF ALLEGIANCE .... Led by Commissioner K~nnedy p p p p p pp ROLL CALL! Ad;;un, l<ennet:ly, twiningf Pellman, Wood, Rpdriguez, Acosta .. GtJlvan PUBLIC COMMENTS-NONE PUBLIC. HEARING ITEMS 23-181 TENTATIVE TRACT NIAi? (TTM) NO. 19174/CONDITIONAL use PERMIT (CUP) 23pcm032B NO. 224>21 (BRANDYWINETOWNHOMES) . REQUEST: TTM: To subdivide a 5.6 acre site for condominium pu·rposes. CUP: To develop a project with 130 attached 3.-story townhomes up. to 4Q te~t ta.U a11d .110 .commercial component. The request includes a transfer .of 130 dwelling units fro01 Beach Boulevard to Edinger Avenue within the Beach and Edinger CQrridors s.pecific Plan. lOCAi.lON: 7225· Edin9er Ave., 92647 (north side, 200 feet west of Gothard St) RECOMMENDED ACTION: The Planning Commission 'Shall take the following actions: A) Find the proposed proje.ct .exempt from the California Environmental Quality Act · {CEOA). pµrsµant to Se~ie>n 1~182 9f the CEQA GGioellnes anq Government Code 654-57. 8) Approve Tentative Tract Map No. 19t74 and Conditional Use Permit No. 22-021, · including· a .transfer of 130 dwelling units, with suggested findings and t:.ohditions ofapprqval (Attachment No, 1 ). The Commission made the fqllowing disctqsures: 46 PC Minutes March 28, 2023 Page2 23pcm0328 • Commissioner Adam visited the site and spoke with Commissioner Wood and the applicant. • Commissioner Kennedy visited the site. • Vice-Chair Twining spoke with the applicant and visited the site. • Chair Pellman spoke with the applicant and visited the site. • Commissioner Wood spoke with the applicant and Commissioner Wood, and visited the site. • Commissioner Rodriguez had no disclosures. • Commissioner Acosta-Galvan visited the site and spoke with staff. Ricky Ramos, Principal Planner, gave the staff presentation for the proposed project. He noted that staff is recommening a minor modification to Condition No. 6(b) to specify all associated private common open space. There was a lengthy discussion regarding the access easement between the subject property and the adjacent property. Staff indicated that the improvements onsite would include a classic boulevard which would maintain receiprocal access to both sites. There was brief discussion regarding the proposed affordable housing units, the duration of the program environmental impact report, and the impacts to the adjacent properties. THE PUBLIC HEARING WAS OPENED. Lindsay Ortega, applicant, spoke in support of Item No. 23-181, provding a detailed overview of the project. She stated that she has worked with Golden West College to address potential privacy impacts. Eric LaShelle, owner of current onsite business, spoke in opposition to Item No. 23-181, citing the unique businesses that will be lost if the project is approved. Bret Blanchard, longterm ground leasee for H2GO, spoke in opposition to Item No. 23-181, citing late notice, lack of communication from property owner, the reciprocal access easement, and the potential negative impacts to the H2GO business. Jeff Bergsma, resident and designer of the adjacent site, expressed concern with Item No. 23-181, citing the potential loss of the reciprocal easement, and asked that the applicant to work with the adjacent property owners o limit the potential negative impacts. Karissa Distefano, BIA, spoke in support of Item No. 23-181 citing the need for more housing in the city. David Trotter, Freeway Industrial Park, spoke in support of Item No. 23-181, and stating that he would like the reciprocal easement agreement rescinded as there's not require for reciprocal easements between residential and commercial properties. WITH NO ONE ELSE PRESENT TO SPEAK, THE PUBLIC HEARING WAS CLOSED. 47 PC Minutes March 28, 2023 Page 3 There was discussion regarding the reciprocal access agreement, the parking improvements, the number of parking spots proposed onsite, and adding a condition to require the applicant to pay for all related improvements to the carwash site. A MOTION WAS MADE BY ADAM, SECONDED BY KENNEDY, TO FIND THE PROPOSED PROJECT EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO SECTION 15182 OF THE CEQA GUIDELINES AND GOVERNMENT CODE 65457, AND APPROVE TENTATIVE TRACT MAP NO. 19174 AND CONDITIONAL USE PERMIT NO. 22-021, INCLUDING A TRANSFER OF 130 DWELLING UNITS, WITH SUGGESTED FINDINGS AND MODIFIED CONDITIONS OF APPROVAL, BY THE FOLLOWING VOTE: AYES: NOES: ABSENT: ABSTAIN: Adam, Kennedy, Twining, Pellman, Wood, Rodriguez, Acosta- Galvan None None None MOTION PASSED FINDINGS FOR PROJECTS EXEMPT FROM CEQA: The Planning Commission finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to section 15182 of the CEQA Guidelines and Government Code 65457, because the project is a residential development that conforms to the Beach and Edinger Corridors Specific Plan (BECSP) for which Program EIR No. 08-008 was adopted and implementation of the project would not result in any new or more severe potentially adverse environmental impacts that were not considered in the Final EIR for the BECSP. The project is required to comply with all applicable mitigation measures adopted for BECSP. In light of the whole record, none of the circumstances described under Section 15162 of the CEQA Guidelines are present and, therefore, no EIR or MND is required. The project is located at 7225 Edinger Avenue and consists of 129 attached 3-story townhomes up to 40 feet tall without a commercial component and a tentative tract map to subdivide a 5.6 acre site for condominium purposes. The development site is located within the Town Center Boulevard Segment of the BECSP. The City certified Program EIR No. 08-008 on December 8, 2009 and adopted the BECSP on March 1, 2010. In 2015, the City Council amended the BECSP to reduce the Maximum Amount of New Development (MAND) from 4,500 to 2,100 total new dwelling units (725 units on Beach Boulevard and 1,375 unit on Edinger Avenue). There are 200 undeveloped units remaining within the MAND on Beach Boulevard. The 129 units proposed by the project is within this limit and the project includes a request to transfer 129 dwelling units from Beach Boulevard to Edinger Avenue. The project conforms to all standards and regulations of the BECSP and HBZSO except for reduced parking and a concession to required building separation as permitted by the California Density Bonus Law. Accordingly, no revision to the previously certified Program EIR is proposed as part of the project, nor have any circumstances changed requiring revision of the previously certified Program EIR. In addition, no new information identifies that implementation of the BECSP, including the project, will have significant effects that were not discussed in the previously 23pcm0328 48 PC Minutes March 28, 2023 Page4 certified Program EIR or that the significant effects identified in the certified Program EIR will be substantially more severe than determined in the Program EIR. Nor is there new information showing that mitigation measures or alternatives not previously adopted would substantially reduce one or more significant effects of the Project. FINDINGS FOR APPROVAL -TENTATIVE MAP NO. 19174: 1. Tentative Tract Map (TTM) No. 19174 to subdivide a 5.6 acre site for condominium purposes is consistent with the General Plan land use designation of Mixed Use -Specific Plan Overlay and zoning designation of BECSP (Town Center Boulevard Segment) on the subject property, applicable provisions of the Subdivision Map Act, and the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The TTM complies with all development standards set forth in the BECSP and HBZSO. The proposed subdivision is also consistent with the goals and policies of the General Plan Land Use Element that govern new subdivisions and residential development. These goals and policies call for a range of housing types to be available to meet the diverse economic, physical, and social needs of future and existing residents while maintaining the neighborhood character of the surrounding area. 2. The site is physically suitable for the type and density of development proposed as part of the project because the subject property is located in a mixed-use neighborhood with similar residential development including some under the same General Plan land use and zoning designations. The site's size, shape, and flat topography are conducive to the development of a new residential project that conforms to the General Plan, BECSP, HBZSO, and other city requirements and is in keeping with the character of the surrounding neighborhood. The proposed grading plan minimizes pad elevations and retaining walls to remain compatible with surrounding properties while allowing the site to function and drain properly. Access to the site will be provided off Edinger Avenue and drive aisles will provide direct access to each unit and its attached garage. The project will also provide 260 spaces within 2-car attached garages associated with each unit and up to 58 off-street guest spaces. Pedestrian access to the site will be provided by a proposed public sidewalk along Edinger and private walkways onsite. Therefore, the project site suitable to accommodate the type of development proposed. 3. The design of the subdivision or the proposed improvements will not cause serious health problems or substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat because the property is an infill site already developed with a commercial center and is void of any wildlife habitat. Compliance with regulatory requirements and mitigation measures will ensure that the subdivision will not cause serious health problems or substantial environmental damage. 4. The design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision unless alternative easements for access or for use will be provided. The subdivision will provide all necessary vehicular access, sidewalk, and utility easements to serve the new development. FINDINGS FOR APPROVAL -CONDITIONAL USE PERMIT NO. 22-021: 1. Conditional Use Permit No. 22-021 to develop a project with 129 attached 3-story townhomes up to 40 feet tall and no commercial component with a request to transfer 129 dwelling units from Beach Boulevard to Edinger Avenue within BECSP will not be detrimental to the general welfare of persons working or residing in the vicinity or detrimental 23pcm0328 49 PC Minutes March 28, 2023 Pages to the value of the property and improvements in the neighborhood. The project will improve an underutilized site with a residential development compatible with other uses in the vicinity. It will assist in meeting the changing housing needs of the community by providing a new homeownership opportunity in the area. The project will comply with development standards in BECSP and the HBZSO including building height, setbacks, and landscaping and will be consistent with the overall bulk and scale of existing residential uses in the project vicinity. The project is one story less than residential projects developed in the area in recent years and includes fa9ade offsets, roofline variations, and architectural treatment to minimize overall building mass and scale. The project's lack of a commercial component will not affect access to goods and services as there are numerous commercial uses and a regional mall in the area to adequately meet the needs of the general public. The applicant is required to make all infrastructure improvements needed to serve the additional dwelling units proposed. 2. The granting of the conditional use permit to develop a project with 129 attached 3-story townhomes up to 40 feet tall without a commercial component with a request to transfer 129 dwelling units from Beach Boulevard to Edinger Avenue within BECSP will not adversely affect the General Plan because the project is consistent with the Mixed Use -Specific Plan Overlay Land Use Element designation on the subject site. The proposed project is also consistent with the General Plan goals and policies listed below. A. Land Use Element Goal LU-1 -New commercial, industrial, and residential development is coordinated to ensure that the land use pattern is consistent with the overall goals and needs of the community. Policy LU-1A -Ensure that development is consistent with the land use designations presented in the Land Use Map, including density, intensity, and use standards applicable to each land use designation. Policy LU-1 C -Support infill development, consolidation of parcels, and adaptive reuse of existing buildings. Policy LU-1 D -Ensure that new development projects are of compatible proportion, scale and character to complement adjoining uses. Policy LU-2E -Intensify the use and strengthen the role of public art, architecture, landscaping, site design, and development patterns to enhance the visual image of Huntington Beach. Goal LU-4 -A range of housing types is available to meet the diverse economic, physical, and social needs of future and existing residents, while neighborhood character and residences are well maintained and protected. Policy LU-4A -Encourage a mix of residential types to accommodate people with diverse housing needs. Policy LU--48 -Improve options for people to live near work and public transit. Policy LU-4E -Encourage housing options located in proximity to employment to reduce vehicle miles traveled. 23pcm0328 50 PC Minutes March 28, 2023 Page 6 Goal LU-7 -Neighborhoods, corridors, and community subareas are well designed, and buildings, enhanced streets, and public spaces contribute to a strong sense of place. The project will redevelop an infill site with townhomes to address the diverse housing needs of the community. It will be compatible with the character of the neighborhood which consists of a mix of commercial and residential with light industrial uses further away. It will provide additional opportunities for ownership housing near employment and public transit. The project proposes an architectural style that is in keeping with the proportion, scale, and character of the neighborhood. The proposed 3-story townhomes will be a story less than the more recent 4-and 5-story multi-family residential projects built in the area. It is consistent with the development standards in the Beach and Edinger Corridors Specific Plan (BECSP) and Huntington Beach Zoning and Subdivision Ordinance (HBZSO) except for reduced parking and a concession to building separation permitted under the California Density Bonus Law. B. Housing Element Goal 2 -Provide adequate housing sites through appropriate land use, zoning and specific plan designations to accommodate Huntington Beach's share of regional housing needs. Policy 2.1. -Provide site opportunities for development of housing that responds to diverse community needs in terms of housing types, cost and location, emphasizing locations near services and transit that promote walkability. Policy 2.3 -Encourage and facilitate the provision of housing affordable to lower income households within the Beach and Edinger Corridors Specific Plan. Goal 3 -Enhance housing affordability so that modest income households can remain an integral part of the Huntington Beach community. Policy 3.1 -Encourage the production of housing that meets all economic segments of the community, including lower, moderate, and upper income households, to maintain a balanced community. Policy 3.2 -Utilize the City's lnclusionary Housing Ordinance as a tool to integrate affordable units within market rate developments. Continue to prioritize the construction of affordable units on-site, with provision of units off-site or payment of an in-lieu housing fee as a less preferred alternative. Policy 3.3 -Facilitate the development of affordable housing through regulatory incentives and concessions, and/or financial assistance, with funding priority to projects that include extremely low income units. Proactively seek out new models and approaches in the provision of affordable housing. Policy 3.4 -Explore collaborative partnerships with non-profit organizations, developers, the business community and governmental agencies in the provision of affordable housing. Policy 4.1 -Support the use of density bonuses and other incentives, such as fee deferrals/waivers and parking reductions, to offset or reduce the costs of developing affordable housing while ensuring that potential impacts are addressed. 23pcm0328 51 PC Minutes March 28, 2023 Page7 Policy 6.4 -Incorporate transit and other transportation alternatives including walking and bicycling into the design of new development, particularly in areas within a half mile of designated transit stops. The project will redevelop an underutilized commercial center with a townhome project that will provide more homeownership opportunities to address the diverse housing needs of the community. The project will comply with the City's affordable housing requirement to provide 10 percent of the proposed dwelling units as affordable units. Due to the provision of affordable housing, the applicant is entitled to reduced parking and any concession and waivers as permitted by the California Density Bonus Law. The project is located near transit, employment, and services which can facilitate alternative forms of transportation. C. Circulation Element Goal CIRC-3A -Convenient and efficient connections between regional transit and areas of employment, shopping, recreation, and housing will increase ridership and active mobility, with a focus on firsUlast mile solutions. Policy CIRC-6C -Require new commercial and residential projects to integrate with pedestrian and bicycle networks, and that necessary land area is provided for the infrastructure. The project site is located near public transportation, including the Golden West Transportation Center, as well as employment and shopping. The project will be installing Classic Boulevard frontage improvements to match recent developments in the area as required by BECSP which includes up to a 12 foot wide sidewalk along the Edinger Avenue frontage. That combined with the bike racks that will be provided onsite will facilitate active mobility and could increase transit ridership. 3. The proposed project will comply with the provisions of the BECSP and other applicable provisions in Titles 20-25 of the HBZSO with the exception of reduced parking and a concession to the required building separation permitted under the California Density Bonus Law. CONDITIONS OF APPROVAL-TENTATIVE TRACT MAP NO. 19174: 1. The Tentative Tract Map No. 19174 received September 20, 2022 shall be the approved layout. 2. Pursuant to Section 230.14 of the HBZSO, the final map for Tentative Tract Map No. 1917 4 shall not be approved by the City Council until an Affordable Housing Agreement has been approved by the City Council. 3. Prior to issuance of a grading permit and at least 14 days prior to any grading activity, the applicant/developer shall provide notice in writing to property owners of record and tenants of properties within a 500-foot radius of the project site as noticed for the public hearing. The notice shall include a general description of planned grading activities and an estimated timeline for commencement and completion of work and a contact person name with phone number. Prior to issuance of the grading permit, a copy of the notice and list of recipients shall be submitted to the Community Development Department. 4. Prior to issuance of building permits, an Affordable Housing Agreement in accordance with the Affordable Housing Program shall be submitted to the Community Development for 23pcm0328 52 PC Minutes March 28, 2023 Page8 review and approval by the City Attorney, and accepted by the City Council. Said agreement shall be recorded with the Orange County Recorder's Office prior to issuance of the first building permit for the tract. The Agreement shall comply with HBZSO Section 230.14 and include, but not be limited to, the following items: a. The duration of the affordability and the number of the affordable units onsite; b. The method in which the developer and the City are to monitor the affordability of the subject affordable units and the eligibility of the tenants or owners of those units over the period of the agreement; c. The method in which vacancies will be marketed and filled; d. A description of the location and unit type (bedrooms, floor area, etc.) of the affordable units within the project. Affordable units shall be located throughout the project and shall include a mixture of unit types in the same ratio as provided throughout the project; and e. Standards for maximum qualifying household incomes and standards for maximum rents or sales prices. 5. Prior to submittal of the final tract and at least 90 days before City Council action on the final map, Conditions Covenants & Restrictions (CC&Rs) shall be submitted to the Community Development Department, Public Works, and City Attorney's office for review and approval. The CC&Rs shall include a parking management plan to ensure the ongoing control of availability ot' on-site parking including but not limited to: the implementation of a parking permit system, restricting garages from being converted to living quarters, workshops, or storage that will preclude the parking of two vehicles, all open parking spaces within the project shall be unassigned and available for visitors and guests; no boat, trailer, camper, off-road vehicle, golf cart, commercial vehicle, mobile home, motor home, bus, or other recreational vehicle or any non-operating vehicle shall be parked or stored in any open sparking spaces; and towing of any vehicles violating the restrictions within the CC&Rs. The CC&Rs shall identify that there is a Golden West College Criminal Justice Training Center immediately to the north of the project site where training occurs and that no windows are allowed on the 2nd and 3rd story north facing elevation of the townhomes along the northern boundary of the subject site for privacy. The CC&Rs must be in recordable form prior to recordation of the map. (HBZSO Section 253.12.H and BECSP) 6. Prior to final inspection or occupancy, the Developer shall provide a Landscape Maintenance Agreement for the continuing maintenance and liability of all landscaping, irrigation, street lighting, furniture, and hardscape that is located along the project frontage within the public right of way and pedestrian access easements. The agreement shall describe all aspects of maintenance such as enhanced sidewalk cleaning, weed and pest control, trash cans, disposal of trash, signs, tree or palm replacement, and any other aspect of maintenance that is warranted by the improvements proposed. The agreement shall state that the property ownership shall be responsible for all costs associated with maintenance (including any fees for water and electrical use), repair, replacement, liability, and fees imposed by the City. (PW) 7. Block wall/fencing plans (including a site plan, section drawings, and elevations depicting the height and material of all retaining walls, walls, and fences) consistent with the grading plan shall be submitted to and approved by the Community Development Department. Double walls shall be avoided to the greatest extent feasible. Prior to the construction of any 23pcm0328 53 PCMinutes Mt:irch28, 2023 Page9 new walls;. a plan must be submitted identifying the removal of any existing walls located on the su.bj~t property,.The plans shall identify.materials, seep holes and drainage, ~. Comply with aU mitigation measures in the BECSP EIR No. 08-008. 9. Incorporating sustainable or ''green" building practices into the design of the proposed structures and assqciated site improvemen~s is highly encouraged. Sustainable building practices may include (but are not limited to) those recornrnended by the U.S. Green Builciing Council's Lead~rship lri EriE?rgy and Environrnentl:ll Desjgn (LEED) Program certification. (http://wwv,u.isgb~org/DisplayPage.aspx?Categoryl0:c19) or Build It Green's Green Building Guidelines and Rating SysteiTls (http://www:bui1d1tgreen.org/green--building-- 9,uidelines-.rating). · · · to. The development s~rvi®s dE3partments (Community Development Department; . Fite Department, and Public Works) shall be tespoh$ibfe for ensuring compliance with ~II applicable code reqUirements arid conditions of approval. The Director of Community Development may approve minor amendments tp the plans an<:1/or conditions of appr9val a~ appropriate based on changed circumstances, new information or other relevant factors. Final rnap review and permits shalf not be issued until the development services departments have revieWed and .approved the Proposed changes f<>r conformanq~ with the intent of the Planning· comrnission;s action. If the proposed chahges are of a substantial nature, an amendment to the original entmemE:nt reviewed l:>y·.the Planning Commission may be required pursuant to the provisions of HBZSO·Section 241.18. CONDITIONS OF APPROVAL w CONDITIONAL lJSE PERMIT NO. 22;;021: 1. The site plan, floor plans, elevations, and other project plc:ins received a8eptE!n1ber20, .2022 and March .20, 2023 shall be the conceptually approved design with the modification that no windows are allowed on the 2rid anq 3rcr story mirth facing elevation of the townhomes along the northern boundary of the subject site for privacy. The final design of Buildings 5. a.nd 6 shall he subJect(o, planning staff approval. ·· · · 2, Prior to issuance of a demolition permit, the required entitlement for the proposed elimination of 2 parking ,spaces on the cldjai:;ent car wash property to the east in order to provide the required fire lane for that property mu.st be approved. 3. Prior to issuance ofa grading permit, the applicant shall subrriit a ,construction management plan that .addresses c:oordiriation with the operator of the adjacent car wash during the c;ompletion oHmprc;wements Pll the i;:ar Wl:\Sh site including but not.limited to the rel9cation of the reciprocal 'access, removal of parking spaces and installation of the new car wash fire lane, and cqntinua:tion of th~ Clas.sic Boulevard. public frontage improvements to the project site ·subject to approval: bythe community Development Director, Air improvement costs on the car wash site related to. the development .of the towhhome project shall be the responsibility of the applicant. · 4. Prior to sul:lmittal for buUging permits'; the following shall be completed: a, Zoning entitlement conditions of approval, mitigation measures identified in BECSP EIR No. 08;.QQ8,. and code requk~ments provided in the letter dated bee: 1; 2022 shall be printed verbatim on one. of the first three pages of all the working drawing sets used f6r issuance of puUcUng p~rmits (architectural, structuralj electrical, mechanical and ~3pcm0328 54 PC Minutes March 28, 2023 Page 10 plumbing} and shall be referenced in the sheet index. The minimum font size utilized for printed text shall be 12 point. b. Submit three (3) copies of the site plan and floor plans and the processing fee to the Community Development Department for addressing purposes after street name approval by the Fire Department. 5. Prior to issuance of building permits, the following shall be completed: a. Block wall/fencing plans (including a site plan, section drawings, and elevations depicting the height and material of all retaining walls, walls, and fences) consistent with the grading plan shall be submitted to and approved by the Community Development Department. Double walls shall be avoided to the greatest extent feasible. Prior to the construction of any new walls, a plan must be submitted identifying the removal of any existing walls located on the subject property. The plans shall identify materials, seep holes and drainage. b. Contact the United States Postal Service for approval of mailbox location(s). c. An interim parking and building materials storage plan shall be submitted to the Community Development Department to assure adequate parking and restroom facilities are available for employees, customers, and contractors during the project's construction phase and that adjacent properties will not be impacted by their location. The plan shall also be reviewed and approved by the Fire Department and Public Works Department. The applicant shall obtain any necessary encroachment permits from the Department of Public Works. 6. During demolition, grading, site development, and/or construction, the following shall be adhered to: a. Construction equipment shall be maintained in peak operating condition to reduce emissions. b. Use low sulfur (0.5%) fuel by weight for construction equipment. c. Truck idling shall be prohibited for periods longer than 10 minutes. d. Attempt to phase and schedule activities to avoid high ozone days first stage smog alerts. e. Discontinue operation during second stage smog alerts. f. Ensure clearly visible signs are posted on the perimeter of the site identifying the name and phone number of a field supervisor to contact for information regarding the development and any construction/grading activity. g. All Huntington Beach Zoning and Subdivision Ordinance and Municipal Code requirements including the Noise Ordinance. All activities including truck deliveries associated with construction, grading, remodeling, or repair shall be limited to Monday- Saturday 7:00 AM to 7:00 PM. Such activities are prohibited Sundays and Federal holidays (HBMC 8.40.090). 23pcm0328 55 PC Minutes March 28, 2023 Page 11 7. The structure cannot be occupied, the final building permit cannot be approved, and utilities cannot be released for the first residential unit until the following have been completed: a. Compliance with all conditions of approval specified herein shall be accomplished and verified by the Community Development Department. b. The public open space and all associated private common open space and recreational amenities shall be completed. c. All building spoils, such as unusable lumber, wire, pipe, and other surplus or unusable material, shall be disposed of at an off-site facility equipped to handle them. d. All Development Impact Fees shall be paid to the Community Development Department (City of Huntington Beach Community Development Department Fee Schedule). (HBZSO Section 254.16). 8. The applicant and/or applicant's representative shall be responsible for ensuring the accuracy of all plans and information submitted to the City for review and approval. 9. Tentative Tract No. 19174 and Conditional Use Permit No. 22-021 become null and void unless exercised within two (2) years of the date of final approval. An extension of time may be granted by the Community Development Director pursuant to a written request submitted to the Planning Division a minimum 60 days prior to the expiration date. (HBZSO Section 251.14and 251.16) 10. The development services departments (Community Development Department, Fire Department, and Public Works) shall be responsible for ensuring compliance with all applicable code requirements and conditions of approval. The Director of Community Development may approve minor amendments to plans and/or conditions of approval as appropriate based on changed circumstances, new information or other relevant factors. Any proposed plan/project revisions shall be called out on the plan sets submitted for building permits. Permits shall not be issued until the Development Services Departments have reviewed and approved the proposed changes for conformance with the intent of the Planning Commission's action. If the proposed changes are of a substantial nature, an amendment to the original entitlement reviewed by the Planning Commission may be required pursuant to the provisions of HBZSO Section 241.18. INDEMNIFICATION AND HOLD HARMLESS CONDITION: The owner of the property which is the subject of this project and the project applicant if different from the property owner, and each of their heirs, successors and assigns, shall defend, indemnify and hold harmless the City of Huntington Beach and its agents, officers, and employees from any claim, action or proceedings, liability cost, including attorney's fees and costs against the City or its agents, officers or employees, to attack, set aside, void or annul any approval of the City, including but not limited to any approval granted by the City Council, Planning Commission, or Design Review Board concerning this project. The City shall promptly notify the applicant of any claim, action or proceeding and should cooperate fully in the defense thereof. 23pcm0328 56 PC Minutes March 28, 2023 Page12 CONSENT CALENDAR 23'."290 APPROVE PLANNING COMMISSION MINUTES DATED FEBRUARY 14 1 2023 Recommende.d A~tion: That the Plamiir,g Commission take the following eiction: 11 Approve the February 14, 2023, Planning Commission Minutes as sUbrnitted;0 A I\IIOTION WAS MADE f3YWOOD, SECONDED BY RODRIGUEZ, TO APPROVE THE FEBRUARY 1.4, .2023, PLANNING COMMISSION. MINUTES AS SUBMITTED, BY THE FO.LLOVVING VOTE; AYES: Kennedy, TWining, Pellman, W6od, Rodriguez, Acosta-Galvan NOES: Non~ . ,ABSENT: None AB$T /dN: Ada111 MOTION APPROVED NON-PUBLIC) HEARING ITEMS -NONE PLANNING ftEMS Matthew &chn~ider,. Planning Manager, repprted on recen.t and upcoming City Gou11cil rneeti11gs ·and teported on items scheduled for upcoming Planning Commissiotrrneetings. PLANNING' COMMISSION ITEMS CommissionerAdarns ad Rodriguez asked for.information regarding upcoming .hearir:ig items. Commissioner Kennedy thanked staff for their detaUea .. reports. Commissioner Wood thanked staff for their work and' asked Chair Pellman to ask the pqbllc speakers 'for their names. Commissioner Rodriguez thanked ,Chait Pellman for his committee assignment ahd thanked staff for his Planning Academy registratfon. Chair Pellman thanked. staff for assisting with the voting software. ADJOURNMENT: Adjourned at7:15 PIVlto the ne;xtreglilarly scheduJ~d meeting Qt' Tue~d~y; A,pril 11,202$. · · c{/~ Tracy Pellmani Chairperson 23pcm03.28 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 (Space Above For Recorder's Use) This Affordable Housing Agreement is recorded at the request and for the benefit of the City of Huntington Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH 23-12898/310834 BY AND BETWEEN CITY OF HUNTINGTON BEACH, a California Municipal Corporation and TPG AG EHC ID (LSEA) CA 3, L.P., a Delaware Limited Partnership -1-57 AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH This AFFORDABLE HOUSING AGREEMENT ("Agreement") is entered into as of the __ day of _____ � 2024 ("Effective Date") by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation ("City"), and TPG AG EHC III (LSEA) CA 3, L.P., a Delaware limited partnership ("Owner"). City and Owner are hereinafter sometimes referred to collectively as the "Parties" and individually as a "Party." RECITALS A.City is a municipal corporation and charter city organized and existing pursuant to the Constitution and laws of the State of California. B.Owner is the owner in fee of that certain real property located at 72 25 Edinger A venue, Huntington Beach, consisting of approximately 5 .6 acre lot, and more particularly described in the legal description attached hereto as Exhibit "A" (the "Property"). C.Owner has submitted to City plans to develop the Property as a one hundred and twenty- nine (129) unit townhome development, as more particularly depicted in the attached Exhibit "B" (the "Project"). Owner will build the Project in multiple construction phases and sell or rent individual units to individual homebuyers. Currently, as set forth in the Project approvals, Owner will sell the individual units in accordance with the terms and conditions herein. If Owner later desires to rent all of the units, including market rate and affordable, Owner may make this request to City and an amendment to this Agreement will be prepared by the City Attorney's Office to incorporate all of the additional required rental provisions. D.Pursuant to California Government Code Section 65915 (the "State Density Bonus Law"), as implemented under Huntington Beach Zoning and Subdivision Ordinance ("HBZSO"), Chapter 230.14, developers of housing projects that include specified levels of affordable housing are entitled to apply for and receive certain density bonuses and additional incentives in order to facilitate the economic feasibility of those projects. Owner is not proposing an increase in the number of units allowed per the State Density Bonus Law and will meet the affordability requirements as outlined in HBZSO Chapter 230.14 and Chapter 230.26. In exchange for making at least ten percent (10%) of the 129 total units affordable to Moderate Income Households per Chapter 2.2.3 of the Beach and Edinger Corridors Specific Plan (BECSP), the State Density Bonus Law provides that the developer may receive up to one "incentive or concession." (Gov't § 65915(d)(2)(A).) E.The City's Inclusionary Housing Ordinance as outlined in HBZSO Chapter 230.26 requires that ten percent (10%) of new housing within the Project be affordable to households earning not more than 120% of Orange County Median Income. In compliance with HBZSO Chapter 230.14 requirement, Owner agrees to provide as part of the one hundred and twenty-nine (129)ownership units permitted under the City development standards, thirteen (13) units to be affordable to Moderate Income Households (the "Affordable Units"). F.Pursuant to Government Code Section 65915(d), Owner has applied for one incentive or concession related to a reduction in development standards and has applied for a reduction in City parking standard ratios. Since the Project will be providing 10 percent of the total dwelling units for 23-12898/310834 -2- 58 Moderate Income Households ( 13 units), the Owner seeks relief in the form of a reduction from the City parking standards and is implementing the parking ratios for two-, three-, and four-bedroom units and guest parking under the State Density Bonus Law regulations. The Owner has applied for one incentive or concession related to the required space between buildings from 1) 20 feet to a minimum of 14 feet-9 inches between residential buildings; and 2) 20 feet to a minimum of 10 feet for common area buildings. Pursuant to Government Code Section 65915( e ), Owner has not applied for any additional waivers and/or reduction of development standards that would physically preclude the construction of the Project as approved. G.On March 28, 2023, the Planning Commission approved the Project application consisting of a 1) Tentative Tract Map No. 19174; 2) Conditional Use Permit (CUP) No. 22-021, including approval of the transfer of 129 units from Beach Boulevard to Edinger Avenue within the BECSP; and 3) finding the Project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15182 of the CEQA Guidelines and California Government Code 65457. As approved, the Project includes the aforementioned concession request and reduction in City parking standard ratios. In order to take advantage of this concession, Owner must ensure, pursuant to the terms of this Agreement, that no less than ten percent (10%) of the one hundred and twenty-nine (129) total units permitted under City development standards are affordable to Moderate Income Households. Therefore, Owner must ensure, pursuant to the terms of this Agreement, that no less than thirteen (13) residential units (rental or for sale) will be used and occupied or available for use and occupancy by Moderate Income Households as defined in Health and Safety Code Section 50093 at the time of this Agreement. H.This Agreement sets forth the terms and conditions for the implementation of the Project's requirement to provide affordable housing units in exchange for receiving the concession and reduction in City parking standard ratios as set forth herein. I.The development of the Project on the Property pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the vital and best interests of City and the welfare of its residents, and in accordance with the public purposes and provisions of applicable federal, state, and local laws and requirements. COVENANTS NOW, THEREFORE, in consideration of the above Recitals, which are incorporated herein by this reference, and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, th� Parties agree as follows: 1.DEFINITIONS AND EXHIBITS as follows: 1.1 Definitions. The following terms when used in this Agreement shall be defined 1.1.1 "Adjusted For Family Size Appropriate To The Unit" means a household of one person in the case of a studio unit, a household of two persons in the case of a one­ bedroom unit, a household of three persons in the case of a two-bedroom unit, a household of four persons in the case of a three-bedroom unit, and a household of five persons in the case of a four­ bedroom unit. 23-12898/310834 -3- 59 1.1.2 "Affordable Housing Cost" for a Moderate Income Household means that purchase price for the sale of an Affordable Unit, assuming the payment by the purchaser of a down payment in the amount of 10% of the purchase price, which would result in an annual Monthly Housing Cost which does not exceed the product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County monthly median income for a household adjusted for family size appropriate to the Unit under Health and Safety Code Section 50052.5(b)(4). Affordable Housing Cost shall be calculated pursuant to the City Housing Regulations. 1.1.3 "Affordable Units" means the thirteen (13) units, consisting of two (2) two-bedroom Units, three (3) three-bedroom Units, and eight (8) four-bedroom Units that are designated pursuant to Section 3.2 to be sold or rented to and occupied by thirteen (13) Moderate Income Households in the Project. 1.1.4 "Affordable Housing Covenant" means the Declaration of Conditions, Covenants and Restrictions for Moderate Income Affordable Housing to be recorded against each Affordable Unit in the form attached hereto as Exhibit "C." 1.1.5 "BECSP" means the Beach and Edinger Corridors Specific Plan of the City, in effect as of the Effective Date, and related certified Program EIR No. 08-008. 1.1.6 "City Housing Regulations" means the "Affordable Ownership Housing Regulations-Homeowner Requirements of the City of Huntington Beach," dated August 15, 2011, as they exist now, and as they may be amended in the future. 1.1. 7 "Condominium Map" means that certain final map for condominium purposes for Tract No. 19174 that will create the Units within the Project. 1.1.8 "Effective Date" means the date the City Council of City approves this Agreement, which date shall be inserted in the preamble to this Agreement. 1.1.9 "Household' means all persons residing in a Unit. 1.1.10 "Incentives and Concessions" means the incentives and concessions and reductions in development standards and parking ratios identified in Recital F above. 1.1.11 "MAND" means the maximum amount of net new development as that term is defined and used in the BECSP. 1.1.12 "Market Rate Units" means the Units within the Project to be rented or sold by Owner to a Household without restriction as to income levels, rental rate or sales price. 1.1.13 "Median Income" means the Orange County area median income, adjusted for household size, as established by the United States Department of Housing and Urban Development, and as published periodically by the California Department of Housing and Community Development. 1.1.14 "Moderate Income Household' means a Household whose income does not exceed the qualifying limits for moderate income households pursuant to Health and Safety Code 23-12898/310834 -4- 60 Section 50093, which is those Households whose income does not exceed one hundred twenty percent (120%) of Median Income, adjusted for family size. The income level of a Household shall be determined in accordance with the City Housing Regulations. 1.1.15 "Monthly Housing Cosf' shall include all of the following associated with the Affordable Unit: (i) principal and interest payments on a mortgage loan; (ii) property taxes and assessments; (iii) the cost of fire and casualty insurance covering replacement value of property improvements; (iv) homeowner's association fees; (v) reasonable Unit maintenance and repair costs; and (vi) reasonable utility allowance, all as determined according to the City Housing Regulations. In determining monthly housing payments, the City will assume principal and interest payments on a conventional home mortgage after paying a ten percent ( 10%) down payment. 1.1.16 "Project" means that certain housing development as more particularly described in Recital C and Section 2 of this Agreement. In the event of any inconsistency between the description of the Project in this Agreement and the Project Approvals, the Project Approvals shall govern. In no event shall any development be permitted that is not permitted under the entitlements in effect at the time of development. 1. 1. 17 "Project Approvals" means the entitlements and permits for the Project and the CEQA exemption for the Project as more particularly described in Recital G of this Agreement, as may be amended or modified upon application by Owner and approved by City. 1.1.18 "Qualified Purchaser" means a Household that complies with all income verification requirements in this Agreement, and earns not more than the qualifying limits of one hundred twenty percent (120%) of the Median Income, adjusted for family size, as established annually by HCD income regulation, for the thirteen (13) Moderate Income Household Units. 1.1.19 "State Density Bonus Law" means Government Code Sections 65915- 65918, as they exist on the Effective Date. 1.1.20 "Unif' means a residential dwelling unit within the Project to be sold or rented by Owner pursuant to this Agreement, including Affordable Units and Market Rate Units. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" -Legal Description of the Property Exhibit "B" -Depiction of the Project Exhibit "C" -Declaration of Conditions, Covenants and Restrictions for Moderate Income Affordable Housing, with attachments Exhibit "D" -Affordable Housing Agreement Release Agreement Exhibit "E" -Unit Release Agreement Exhibit "F" -Assignment Agreement 2.DEVELOPMENT OF THE PROPERTY 2.1 Project. Owner shall develop the Project as a one hundred and twenty-nine (129)unit condominium residential community in accordance with and subject to all Project 23-12898/310834 -5- 61 Approvals. The Project shall have one hundred and sixteen (116) Market Rate Units, and thirteen (13) Affordable Units. There shall be at a minimum two (2) two-bedroom, three (3) three-bedroom, and eight (8) four-bedroom Affordable Units. City acknowledges and agrees that the Project Approvals include the transfer of 129 dwelling units from Beach Boulevard to Edinger Avenue within and pursuant to the BECSP and that, in order to further assure and evidence the ability of Owner to develop the Affordable Units and the balance of the Project, City hereby certifies that Owner is entitled to the full MAND allocation of 129 Units for the Project and City shall promptly process all complete building permit applications for all such Units upon submittal of thereof by the Owner. 2.2 Market Rate Units. The Project shall have no more than One Hundred and Sixteen (116)Market Rate Units with Unit sizes as may be determined by Owner. 2.3 Affordable Units. Project shall have no less than Thirteen (13) Affordable Units pursuant to the terms and conditions of this Agreement. The Project shall have no less than Thirteen (13)Affordable Units designated for Moderate Income Households. The average square footage of the Affordable Units shall be no more than approximately 20 percent lower than the average square footage of the Market Rate Units of the same number of bedrooms. The Affordable Units shall be constructed with the same exterior appearance and interior features, fixtures, and amenities, and shall use the same type and quality of materials as the Market Rate Units in the Project. The Affordable Units shall be dispersed throughout the Project and the number of bedroom unit sizes for the Affordable Units shall be proportional to the Market Rate Units. At its discretion, Owner may increase the number of Affordable Units. 2.4 Authorized Waivers and Modifications, and Incentives and Concessions. In accordance with the State Density Bonus Law and pursuant to the entitlements for the Project, City authorized the Incentives and Concessions described in the Recitals, above. 2.5 Compliance with Laws. Owner at its sole cost and expense shall secure or cause to be secured any and all permits that may be required by City or any other federal, state, or local governmental entity having or claiming jurisdiction over the Property or Project. Upon securing any and all permits, Owner shall carry out and perform the development, and marketing of the Project in conformity with all applicable federal, state, and local laws and regulations, and all conditions of approval of Tentative Map No. 19174. 2.6 Mechanic's Liens; Indemnification. Owner shall take all actions reasonably necessary to prevent and remove any mechanic's liens or other similar liens (including design professional liens) against the Property or Project, or any part thereof, by reason of work, labor, services, or materials supplied or claimed to have been supplied to Owner or anyone holding the Property or Project, or any part thereof, through or under Owner, that arises from the original construction of the Affordable Units. In the event any such mechanics lien or other similar lien is filed against the Property or Project that arises from the original construction of the Affordable Units, Owner shall, at its sole cost and expense, bond against or discharge such lien within thirty (30) days after the initial filing of the same. Upon request by the City, Owner shall provide to the City updated information from Owner's title insurer. City hereby reserves all rights to post notices of non­ responsibility and any other notices as may be appropriate upon a filing of a mechanic's lien. Owner shall indemnify, defend (with counsel of City's choosing and the consent of Owner, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Owner's consent), 23-12898/310834 -6- 62 and hold harmless City and all of its officials, officers, employees, representatives, volunteers and agents from any and all alleged or actual claims, causes of action, liabilities, and damages from any third party by reason of a mechanic's lien or work, labor, services, or materials supplied or claimed to have been supplied to Owner or anyone holding the Property or Project, or any part thereof, through or under Owner, that arises from the original construction of the Affordable Units. 3.AFFORDABLE UNITS 3 .1 Execution and Recording of This Agreement. Owner shall execute this Agreement prior to City Council consideration of approval of this Agreement. No later than thirty (30) days after the recordation of the Condominium Map, Owner shall record an executed original of this Agreement against the Property in the Official Records for Orange County, California. 3.2 Designation of Affordable Units. At least three (3) months prior to the recordation of the Final Map with the approval of the California Department of Real Estate, Owner shall obtain the approval from the City's Housing Manager of the designation of the thirteen (13) Affordable Units. The Affordable Units shall be disbursed throughout the buildings of the Project. Immediately following the recordation of each Condominium Map for the Project, Owner shall cause the Affordable Housing Covenant (Exhibit "C") to be recorded against any Affordable Units within the Condominium Map. 3.3 Leasing of Market Rate or Affordable Units by the Owner. Owner will sell the individual units in accordance with the Project approvals and the terms and conditions herein. If Owner later desires to rent all of the units, including market rate and affordable, Owner may make this request to City and an amendment to this Agreement will be prepared by the City Attorney's Office to incorporate all of the additional required rental provisions 3.4 Term of Affordable Unit Covenants. Each Affordable Unit designated for Moderate Income Households shall be restricted for use and occupancy by Moderate Income Household, for a total period of forty-five ( 45) years, commencing on the date that the Owner conveys title to the first purchaser of each Affordable Unit. By way of explanation of the foregoing sentence, it is possible that the affordability term for one Affordable Unit will neither commence on the same date nor terminate on the same date as another Affordable Unit, and it is possible that the affordability terms for all Affordable Units will commence on different days and terminate on different days. 3 .5 Memorializing Commencement of Affordability Term. The Notice of Affordability Restrictions is attached as an exhibit to Exhibit "C", the Declaration of Conditions, Covenants, and Restrictions for Moderate Income Affordable Housing. This Notice shall be recorded concurrently with conveyance of title to the first buyer of each Affordable Unit and the affordability term for each Affordable Unit shall begin as of the recordation date of the Notice. 3.6. Sale of Affordable Units to Moderate Income Households. Wh en marketing the Affor dable Units, Owner shall comply with the City Housing Regulations. Owner shall not convey title to any Affordable Unit to a Household that the City has not verified as a Moderate Income Household, as determined pursuant the City Housing Regulations. Owner shall not convey title to any Affordable Unit to a Moderate Income Household at a price that exceeds the Affordable Housing Cost for that Affordable Unit as established by the City. In the event that Owner desires to sell an Affordable 23-12898/310834 -7- 63 Unit, Owner shall comply with the requirements of Section 6.4 of the Affordable Housing Covenant (Exhibit "C" of this Agreement). 4.TERM OF THIS AGREEMENT AND RELEASE OF UNITS 4.1 The term of this Agreement shall commence on the Effective Date and shall continue until the date Owner conveys fee title to buyers of all of the Affordable Units of the Project in accordance with the requirements of this Agreement. Upon satisfaction of the foregoing, the City shall, at the request of Owner, record a termination of this Agreement in the form of Exhibit "D" to this Agreement The recording of such a termination document shall remove this Agreement as an encumbrance upon title to the Property. Notwithstanding any other provision herein to the contrary, Owner's indemnity obligations under Sections 2.6 (Mechanic's Liens) and 5.3 (Indemnification) hereof shall survive the termination of this Agreement. 4.2 Owner shall have the right at the time that it enters into a sales agreement for each of the Units to request that City execute a Unit Release for the Unit in the form of Exhibit "E" to this Agreement. 5.DEFAULT AND TERMINATION; INDEMNIFICATION 5.1 Default. Failure or delay by any Party to perform any term or provision of this Agreement which is not cured within thirty (30) days after receipt of notice from the other Party specifying the default ( or such other period specifically provided herein) constitutes a default under this Agreement; provided, however, if such default is of the nature requiring more than thirty (30) days to cure, the defaulting Party shall avoid default hereunder by commencing to cure within such thirty (30)day period, and thereafter diligently pursuing such cure to completion within an additional sixty (60) days following the conclusion of such thirty (30) day period (for a total of ninety (90) days). Except as required to protect against further damages, the injured Party may not institute proceedings against the Party in default until the time for cure has expired. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. City also shall provide a copy of any notice of default hereunder to the Mortgagee of any Mortgage ( as defined in Section 7.20, whether or not a Subordination Agreement then exists) of which City has actual notice and City agrees to accept from any such Mortgagee a cure as set forth herein of any Owner default hereunder, but acknowledges that the Mortgagee has no obligation to cure such default. 5.2 Rights and Remedies Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 5 .3 Indemnification. In addition to any other indemnity specifically provided in this Agreement, Owner shall defend (with counsel of City's choosing and the consent of Owner, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Owner's consent), indemnify and hold harmless City and its officers, officials, agents, employees, representatives, and volunteers from and against any loss, liability, claim, or judgment arising from any act or omission of Owner in connection with its obligations under this Agreement. 23-12898/310834 -8- 64 6.ASSIGNMENT 6.1 Assignment by Owner. The qualifications and identity of Owner are of particular concern to City. It is because of those qualifications and identity that City has entered into this Agreement. Accordingly, except as otherwise expressly provided herein, Owner shall not sell, transfer, lease or assign the Property or Project in whole or in part, or transfer or assign Owner's rights and obligations in this Agreement, ( each of the foregoing, a "Transfer") without City's prior written approval. In considering whether to grant its approval of any proposed transfer or assignment by Owner of its interest in the Property, Project, or this Agreement, City shall consider factors such as the financial strength and capacity of the proposed transferee or assignee to perform Owner's obligations in this Agreement, and the proposed transferee's or assignee's experience and expertise in the planning, financing, development, and operation of similar projects. Owner shall give City no fewer than thirty (30) days' advance written notice of such Transfer ("Transfer Notice"), and (ii) the transferee identified in the Transfer Notice shall agree to assume all obligations of Owner imposed under this Agreement pursuant to an assignment agreement in recordable form in the form of Exhibit "F" attached hereto ("Assignment Agreement"), which shall be submitted by Owner to City concurrently with the Transfer Notice. City shall have thirty (30) days following its receipt of the proposed Assi gnment Agreement to review and approve and execute the Assignment Agreement, which approval and such execution shall not be unreasonably withheld, delayed or conditioned. The execution and recording of the Assignment Agreement as approved by City shall result in the release of Owner from its obligations hereunder. Notwithstanding the foregoing, Owner may make the following Transfers without any requirement for City approval or for a Transfer Notice: (a) a Transfer to a bona fide lender for purposes of security; (b) a Transfer to any entity that is an affiliate of Owner and/ or ( c) any Transfer to Landsea Homes of California LLC, a Delaware limited liability company or its affiliate ("Landsea") in connection with the transfer of all or any portion of the Property to Landsea, provided that a transferee pursuant to clause (b) or ( c) shall deliver an Assignment Agreement to the City. Upon a Transfer to Landsea under clause ( c) and delivery of an Assignment Agreement to the City, Owner shall be released from its obligations hereunder with respect to the portion of the Property transferred to Landsea. As used herein, an "affiliate of Owner" means any entity that directly or indirectly controls or is controlled by or under common control with Owner, whether through the ownership or control of voting interests, by contract, or otherwise. 6.2 Subseguent Assignment. As used in this Agreement, the term "Owner" shall be deemed to include any such transferee or assignee after the date such transfer or assignment occurs in compliance with this Agreement. 6.3 Unpermitted Assignments Void. Any sale, transfer, or assignment made in violation of this Agreement shall be null and void, and City shall have the right to pursue any right or remedy at law or in equity to enforce the provisions of the restriction against unpermitted sales, transfers, or assignments. 7.MISCELLANEOUS 7.1 Notices. As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named 23-12898/310834 -9- 65 66 below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed en velop e as either registered or certified mail w ith return receipt req uested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) five (5) days after deposit in the United States mail in a sealed envelope, first class mail and postage prepaid, and addressed to the recipient named below; or (iv) one (1) day after deposit with a known and reliable next-day document delivery service (such as FedEx), charges prepaid and delivery scheduled n ext-day to the recipient named below, provided that the sending party receives a confirmation of deli very from the de li very service provider. All notices shall be addressed as follows: Ifto CITY: C i ty of Huntington Beach 2000 Main Street Huntington B each, CA 92648 Attn: Director of Community Development & Housing Manager Ifto OWNER: TPG AG EHC ill (LSEA) CA 3, L.P. 8585 E Hartford Dr., Ste 118 Scottsdale, AZ. 85255 Attn: Steven S. Benson 7.2 Change of Address. Either Party may, by notice given at any time, require subsequent notices to be given to another person o r entity, whether a party or an officer or representative of a party, or to a different address, or bo th. Notices given before actual receipt of noti ce of change shal l not be invalidated by the change. 7.3 Entire Agreement. This Agreement and all of its Exhibits and attachments set forth and contain the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreemen ts, which are not contained or expr essly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 7.4 Amendments. The terms of this Agreement may only be modified or amended by an instrument in writing executed by each of the parties hereto; provided, however, the City Manager shall have the authority to issue interpretations, waive provisions and enter into amendments of this Agreement on behalf of City so long as such actions do not substantially change the uses or development permitted on the Property. 7.5 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the r emainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 7.6 Interpretation and Governing Law. This Agreement and any dispute arising hereunder sha11 be governed and interpreted in accordance with the laws of the State of California without regard to conflict of law principles. This Agreement shall be construed as a whole according 23-1289813 10834 -10- to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 7. 7 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 7 .8 Sin gular and Plural. As used herein, the singular of any word includes the plural, and vice versa, as context so dictates. Masculine, feminine, and neuter forms of any word include the other as context so dictates. 7. 9 Joint and Several Obligations. If at any time during the term of this Agreement the Property and/or Project is owned, in whole or in part, by more than one Owner, all obligations of such Owner under this Agreement shall be joint and several, and the default of any such Owner shall be the default of all such Owners. 7 .10 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 7 .11 Days. Unless otherwise specified in this Agreement or any Exhibit attached hereto, use of the term "days" shall mean calendar days. For purposes of this Agreement and all Exhibits attached hereto, "business days" shall mean every day of the week that City Hall of the City is open for business to the general public. 7.12 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 7.13 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, pandemics, fires, wars, riots or similar hostilities, strikes and other labor difficulties or shortages beyond the Party's control (including the Party's employment force), court actions (such as restraining orders or injunctions), government regulations, failure to act by the other Party, or other causes beyond the Party's control. If any such events shall occur and the Party whose performance is affected thereby provides written notice thereof to the other Party promptly following the occurrence of such events, the time for performance by the affected Party of any of its obligations hereunder shall be automatically extended for the period of time that such events prevented such performance. 7 .14 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 7 .15 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this 23-12898/310834 -11- 67 Agreement. All prov1s10ns of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, ( c) is binding upon each Party and each successor in interest during ownership of the Property or any portion thereof. 7.16 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or any other court in that county, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 7.17 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the development of the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the Owner of such property. 7.18 Attorneys' Fees and Costs. If either Party to this Agreement commences an action against the other Party to this Agreement arising out of or in connection with this Agreement, each party shall bear its own attorneys' fees and costs of suit. 7. 1 9 Authority to Execute. The person or persons executing this Agreement on behalf of either Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their agency, corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind the Party to the performance of its obligations hereunder. 7 .20 Subordination. This Agreement shall be senior in priority to any other private liens or encumbrances on the Property. Notwithstanding the preceding, a mortgage, deed of trust, or other form of secured financing to be obtained by Owner ( or any affiliate thereof) and necessary to finance all or any portion of the Project (each, a "Mortgage") shall, upon written request to City by Owner or the beneficiary of the Mortgage (each, a "Mortgagee"), have priority over this Agreement if: (i) Owner ( or such affiliate) or the Mortgagee obtains the written approval of the City Manager ( or the City Manager's designee ), which shall not be unreasonably withheld, delayed or conditioned, prior to executing the Mortgage, and (ii) Owner ( or such affiliate), the Mortgagee, and City execute in recordable form a written subordination agreement (or other necessary document) confirming the subordination of this Agreement to the lien of the Mortgage (each, a "Subordination Agreement"). The City Manager ( or the City Manager's designee) shall have the authority on behalf of City to execute a Subordination Agreement in such form as reasonably approved by the City Attorney. Any Subordination Agreement must preserve the affordability requirements set forth herein in the event of a default or foreclosure of the Mortgage. REST OF PAGE NOT USED 23-12898/310834 -12- 68 69 7 .21 Counterparts. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth above. "OWNER" TPG AG EHC ill (LSEA) CA 3 , L.P., a Delaware limited partnership By: Essential Housing Asset Management LLC, An Arizona limited liability company Its Au~o~~ Agent By:)-<-(.,r1-___ Steven S. Benson, its Manager 23-12898/310834 -13- "CITY" CITY OF HUNTINGTON BEACH a California municipal corporation By: ----------Name: ---------Title: ________ _ B y: ----------Name: ---------Title: --------- ATTEST: City Clerk EXHIBIT "A" TO AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH (Legal Description) That real property located in the City of Huntington Beach, County of Orange, State of California, described as follows: PARCEL 1 IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 32, PAGE 48 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTING 50% OF A 100% OF ALL MINERALS, GAS, OIL, PETROLEUM, NAPHTHA AND OTHER HYDROCARBON SUBSTANCES IN, UNDER OR THAT MAY BE PRODUCED OR RECOVERED FROM THAT PORTION OF SAID LAND BELOW A DEPTH OF 500 FEET FROM ITS SURF ACE WITH AND INCLUDING IN SUCH EXCEPTION AND RESERVATION FOR THE BENEFIT OF THOSE ENTITLED THERETO, THE RIGHT AT ANY AND ALL TIMES TO ENTER UPON AND INTO ANY AND ALL PARTS OF THE PORTION OF SAID LAND BELOW SUCH DEPTH OF 500 FEET FROM ITS SURF ACE FOR THE PURPOSE OF EXPLORING AND DRILLING FOR, MINING, DEVELOPING, REMOVING AND EXTRACTING ANY AND ALL SUCH SUBSTANCES BY SLANT OR DIRECTIONAL DRILLING OR OTHER OPERATIONS FROM OTHER LAND, ENTERING INTO AND PENETRATING THE LAND THE SUBJECT HEREOF ONLY BELOW SUCH DEPTH OF 500 FEET FROM ITS SURF ACE, BUT WITH (AND THERE SHALL BE) NO RIGHT UNDER SUCH EXCEPTION AND RESERVATION OF ENTRY UPON OR USE OF THE SURF ACE OR SUB SURF ACE TO A DEPTH OF 500 FEET BELOW THE SURFACE, AS RESERVED BY DOROTHY THAYER PECK, CHARLES H. THATCHER AND TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA CORPORATION, ALL AS TRUSTEES OF THE TRUST UNDER WRITTEN DECLARATION THEREOF BY CARRIE A. PECK, DATED DECEMBER 18, 1936,AS TO ANUNDIVIDED25%OF SAID 100%INTEREST AND BY DOROTHY T.PECK,A WIDOW, IN HER INDIVIDUAL CAPACITY, AS TO AN UNDIVIDED 25% OF SAID 100% INTEREST. APN: 142-072-06 23-12898/310834 -14- 70 23-12898/310834 EXHIBIT "B" TO AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH (Project Depiction) See Following Page(s) -15- 71 2 Bedroom Affordable Units (2 Total) 3 Bedroom Affordable Units (3 Total) 4 Bedroom Affordable Units (8 Total) 72 400·-o · 10·-o· 400·-0· EDINGER s T E p L A N \ I '\ I 22 \ I \ I \ I EVA Q I 0 PRODUCT: ROW TOWNHOUSES 71 UNITS: 27 PLAN 5 -1 , 661 SF, 4 BED , 1. '1 BA 30 PLAN 6 -1,688 SF, 4 BED , '3.'1 BA 2 PLAN 10 -1,617 SF, 4 BED , 3.'1 BA 12 PLAN 11 -1,572 SF, 3 BED , 3.5 BA Li-SHAPED CARRIAGE TOWNS -58 UNITS 4 PLAN 1X -1,097 SF, 2 BED, 2.5 BA 4 PLAN 1 -1,12 1 SF, 2 BED, 2.5 BA 6 PLAN 2 -1,292 SF, 2 BED, 2.5 BA 10 PLAN 3 -1,363 SF, 3 BED, 2.5 BA 10 PLAN 4 -1,507 SF, 3 BED, DEN , 2.5 BA 6 PLAN 7-1,866 SF, 4 BED , 3 'i BA 10 PLAN 8 -2,066 SF, 4 BED , ·~-'l BA 8 PLAN 9 -2 ,516 SF, 4 BED, BONUS , 3 + 2(1/2 ) BA 129 TOTAL EXHIBIT "C" TO AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH (Declaration of Conditions, Covenants and Restrictions for Moderate Income Affordable Housing, with attachments; Affordable Housing Covenant) 23-12898/310834 -16- 73 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 (Space Above For Recorder's Use) This Affordable Housing Agreement is recorded at the request and for the benefit of the City of Huntington Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS FOR MODERATE INCOME AFFORDABLE HOUSING ("AFFORDABLE HOUSING COVENANT") 7225 EDINGER A VENUE, HUNTINGTON BEACH This Declaration Of Conditions, Covenants And Restrictions For Moderate Income Affordable Housing ("Resale Restrictions") is made as of --� 2024, by and between _______________ ., a ____________ (the "Owner"), and the CITY OF HUNTINGTON BEACH, a California municipal corporation (the "City"), and the HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic (the "Authority"). At the option of the City and Authority, the Authority may enforce these Resale Restrictions in place of the City. RECITALS A.Owner is the owner in fee of that certain real property consisting of Units __ , , __ , , __ , __ , __ , __ , __ , , , __ , and , located at 7225 Edinger Avenue, Huntington Beach (APNs and ------�' as more particularly described in the legal description attached hereto as Exhibit "A" and are referred to herein individually as a "Restricted Unit", and collectively as the "Restricted Units". B.Owner submitted to City plans to develop the Property as a one hundred and twenty-nine (129) unit residential community to be subdivided as a condominium development ("Project"). Owner will build the Project in multiple construction phases and sell individual units to individual homebuyers. Pursuant to California Government Code Section 65915 (the "State Density Bonus Law"), as implemented under Huntington Beach Zoning and Subdivision Ordinance ("HBZSO"), Chapter 230.14, developers of housing projects that include specified 23-12898/310835 74 ) levels of affordable housing are entitled to apply for and receive certain density bonuses and additional incentives in order to facilitate the economic feasibility of those projects. Owner is not proposing an increase in the number of units allowed per the State Density Bonus Law and will meet the affordability requirements as outlined in HBZSO Chapter 230.14 and 230.26, and in accordance with Chapter 2.2.3 of the Beach and Edinger Corridors Specific Plan (BECSP). In exchange for making at least ten percent (10%) of the 129 total units affordable to Moderate Income Households per HBZSO Chapter 230.26 and Chapter 2.2.3 of the BECSP, the State Density Bonus Law provides that the developer may receive up to one "incentive or concession." (Gov't § 65915(d)(2)(A).) C.Pursuant to Government Code Section 65915(d), in-lieu of providing the affordable units or Restricted Units, Owner has applied for one incentive or concession related to a reduction in development standards and has applied for a reduction in City parking standard ratios. Since the Project will be providing 10 percent of the total dwelling units for Moderate Income Households (13 units), the Owner seeks relief in the form of a reduction from the City parking standards and is implementing the parking ratios for two-, three-, and four-bedroom units and guest parking under the State Density Bonus Law regulations. The Owner has applied for one incentive or concession related to the required space between buildings from 1) 20 feet to a minimum of 14 feet-9 inches between residential buildings; and 2) 20 feet to a minimum of 10 feet for common area buildings. D.On March 28, 2023, the Huntington Beach Planning Commission approved the Project application consisting of a 1) Tentative Tract Map No. 19174; 2) Conditional Use Permit (CUP) No. 22-021; and 3) fmding the Project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15182 of the CEQA Guidelines and California Government Code 65457. As a condition of approval of the Tentative Tract Map and CUP, the Project includes thirteen (13) units which are to be occupied by, and sold at prices affordable to Moderate Income Households for a term of 45 years (the "Affordable Units"). Tentative Tract Map No. 19174 was later recorded as Final Tract Map No. 19174 at Instrument No. ____ of the Records of Orange County, California. E.In order to secure the long-term affordability of the Affordable Units, the City and Owner entered into the "Affordable Housing Agreement for 7225 Edinger Avenue," which was recorded as Instrument No. ____ in the Records of Orange County, California (the "Affordable Housing Agreement"). The Affordable Housing Agreement provides that Owner shall designate two (2) two-bedroom units, three (3) three-bedroom units, and eight (8) four­ bedroom units as the Affordable Units or Restricted Units. NOW, THEREFORE, the Parties hereto agree and covenant as follows: 1.Affordability Covenants. Owner agrees for itself and the successors and assigns to Owner's interest in the Restricted Units, including each Moderate Income Household purchasing one of the Restricted Units, that for a term of forty-five (45) years from the date of the close of escrow for the initial sale of each such Restricted Unit, that, during the Affordability Period (as defmed in Section 4.1 below): 23-12898/310835 75 1.1 The Restricted Units shall only be owned and occupied by a Moderate Income Household, which shall mean persons or families in a Moderate Income Household earning not more than 120% of the Orange County median income, adjusted for household size as appropriate to the Unit. 1.2 The Restricted Units shall only be sold at an Affordable Housing Cost to Moderate Income Households. 2.Defmitions and Exhibits. 2.1 Definitions. In addition to the terms that may be defined elsewhere in this Covenant, the following terms when used in these Resale Restrictions shall be defined as follows: 2.1.1 "Adjusted for family size appropriate to the Unit" means a household of one person in the case of a studio unit, a household of two persons in the case of one-bedroom unit, a household of three persons in the case of a two-bedroom unit, a household of four persons in the case of a three-bedroom unit, and a household of five persons in the case of a four-bedroom unit. 2.1.2 "Affordable Housing Cost" for a Moderate Income Household means that purchase price for sale of an Affordable Unit, assuming the payment by the purchaser of a down payment in the amount of 10% of the purchase price, which would result in an annual Monthly Housing Cost which does not exceed the product of Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County monthly median income for a household adjusted for family size appropriate to the Unit under Health and Safety Code Section 50052.5(b)(4). Affordable Housing Cost shall be calculated pursuant to the City Housing Regulations. 2.1.3 "City Housing Regulations" means the "Affordable Ownership Housing Regulations-Homeowner Requirement of the City of Huntington Beach," dated August 15, 2011, as they exist now, and as they may be amended in the future. 2.1.4 "Default" means the failure of a Party to perform any action or covenant required by these Resale Restrictions within the time periods provided herein following notice and opportunity to cure. 2.1.5 "First Lien" means the lien of a primary Lender which secures the obligations of the Owner to repay amounts owed to the Lender. 2.1.6. "Lender" means a lender making a purchase money loan to the Owner for the purchase of the Affordable Unit. 2.1.7 "Median Income" means the Orange County, California area median income, adjusted for household size, as established by the United States Department of 23-12898/310835 76 23-12898/310835 Housing and Urban Development, and as published periodically by the State of California Department of Housing and Community Development. 2.1.8 “Moderate Income Household” means a Household whose income does not exceed one hundred twenty percent (120%) of Median Income, adjusted for family size. The income level of a Household shall be determined in accordance with the City Housing Regulations. 2.1.9 “Monthly Housing Cost” shall include all of the following associated with the Restricted Units: (i) principal and interest payments on a mortgage loan; (ii) property taxes and assessments; (iii) the cost of fire and casualty insurance covering replacement value of property improvements; (iv) homeowner's association fees; (v) reasonable Unit maintenance and repair costs; and (vi) reasonable utility allowance. In determining monthly housing payments, the City will assume principal and interest payments on a conventional home mortgage after paying a ten percent (10%) down payment. All Monthly Housing costs shall be determined by the City according to the City Housing Regulations. 2.1.10. “Owner” means the then-current owner of a Restricted Unit. Initially, Owner refers to TPG AG EHC III (LSEA) CA 3, L.P., a Delaware limited partnership. Subsequent to the initial sale of a Restricted Unit, Owner refers to each subsequent owner of any legal or equitable interest in a Restricted Unit. 2.1.11 “Qualified Purchaser” Means a person or family who complies with all income verification requirements of these Resale Restrictions, and earns not more than one hundred twenty percent (120%) of the Median Income, adjusted for family size, for the five Moderate Income Household Units as to be determined in accordance with the City Housing Regulations. 2.1.12 “Transfer” shall mean any sale, assignment, conveyance, lease, or transfer, voluntary or involuntary, of any interest in the Restricted Unit. Without limiting the generality of the foregoing, Transfer shall include (i) a transfer by devise, inheritance or intestacy; (ii) the creation of a life estate; (iii) the creation of a joint tenancy interest; (iv) a gift of all or any portion of the Restricted Unit; or (v) any voluntary conveyance of the Restricted Unit. 3. Attachments. The following documents are attached to, and by this reference made a part of, these Resale Restrictions: Exhibit “A” – Legal Description of Restricted Units Exhibit “B” – Notice of Affordability Restriction Exhibit “C” – Promissory Note Exhibit “D” – Affordable Housing Deed of Trust 4. Term of Resale Restrictions. 4.1 The term of these Resale Restrictions shall commence on the date of the initial sale of each Restricted Unit from Owner to a Qualified Purchaser as evidenced by a deed 77 recorded with the Orange County Recorder's Office and shall continue, with respect to each such Restricted Unit, for forty-five (45) years from said date (the "Affordability Period"). The Covenant contained in this Section shall run with each Restricted Unit and shall automatically terminate and be of no further force or effect upon the expiration of the Affordability Period. By way of explanation of the foregoing sentence, it is possible that the affordability term for one Restricted Unit will neither commence on the same date nor terminate on the same date as another Restricted Unit, and it is possible that the affordability terms for all Restricted Units will commence on different days and terminate on different days. The beginning and expiration dates of the Affordability Period for each Restricted Unit shall be established by the City by recording a Notice of Affordability Covenant (Exhibit "B") in connection with the first sale of such Restricted Unit. 4.2 Prior to the termination of the Affordability period, each Qualified Purchaser of a Restricted Unit shall enter into a Notice of Affordability Restriction, Promissory Note and Deed of Trust in the forms attached as Exhibits "B", "C", and "D" to these Resale Restrictions. 5. Covenant Regarding Use and Sale of Restricted Units. During the Affordability Period, the Restricted Units shall be owned and occupied as the principal residence of a Moderate Income Household, and in no event may the Restricted Unit be leased to a third party. During the Affordability Period, no transfer of a Restricted Unit shall occur until the City determines that: (a) the proposed purchaser intends to occupy the Restricted Unit as the proposed purchaser's principal residence; (b) the proposed purchaser is a Moderate Income Household; and ( c) the proposed transfer occurs at an Affordable Housing Cost. 6.Permitted and Prohibited Transfers of Restricted Units. 6.1 The following Transfers, made in compliance with the terms and conditions of these Resale Restrictions and the City Housing Regulations, shall constitute "Permitted Transfers": (i) a Transfer to a surviving joint tenant or other permitted co-Owner of the Restricted Unit by devise, descent, or operation of law on the death of an Owner; (ii) a Transfer to a spouse such that the spouses become co-Owners of the Restricted Unit; (iii) a Transfer by decree of dissolution, legal separation agreement, or from an incidental property settlement by which the spouse becomes an Owner of the Restricted Unit, provided that in each case the transferee spouse occupies or will occupy the Restricted Unit; (iv) a Transfer to an inter vivos trust in which Owner is and remains the beneficiary and occupant of the Restricted Unit; and (v) a Transfer to a Moderate Income Household at Affordable Housing Cost. A Transfer that is not a Permitted Transfer specified above is a "Prohibited Transfer." During the Affordability Period, the occurrence of a Prohibited Transfer is a Default under these Resale Restrictions. 6.2 All Transfers Prohibited Without City Approval. During the Affordability Period, Owner shall not sell, transfer, use as security for any loan, or convey any interest in a Restricted Unit, except with the express written consent of the City, which consent shall be given only if the Transfer is a Permitted Transfer and in strict compliance with the provisions of this Section 6. 23-12898/310835 78 6.3 Maximum Sale Price of Restricted Unit. In the event that Owner decides to sell or otherwise Transfer the Restricted Unit, Owner shall contact the City to obtain the current Affordable Housing Cost, which shall be the maximum sales price of the Restricted Unit. City shall provide the Affordable Housing Cost pursuant to its current Affordable Housing Regulations. Regarding the Affordable Housing Cost, Owner acknowledges that: OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER, UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF A PROPOSED SALE OR OTHER TRANSFER OF THE RESTRICTED UNIT, TAKING INTO CONSIDERATION PREVAILING INTEREST RATES, THE OFFERED TERMS OF SALE, THE ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE SAME OR OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY TIDS COVENANT. OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER, FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND THESE RESALE RESTRICTIONS IS TO PROVIDE HOUSING TO A MODERATE INCOME HOUSEHOLDS AT AN AFFORDABLE HOUSING COST. Owner's Initials 6.4 Procedure to Verify a Proposed Transfer. In the event that Owner desires to sell the Restricted Unit, Owner shall send written notice thereof to the City at the following address: City of Huntington Beach 2000 Main Street, 5 th Floor Huntington Beach, CA 92648 Attention: Housing Manager City shall process the sale of the Restricted Unit pursuant to the City Housing Regulations within thirty (30) days after receipt of such written notice from Owner notifying City of Owner's desire to sell such Restricted Unit. The City shall not be obligated to approve a transfer unless and until the proposed purchaser has submitted to the City such information and completed such forms as necessary to verify the proposed purchaser's intent with respect to his/her/its residency of the Restricted Unit, his/her/its gross income, and an affidavit of the proposed purchaser disclosing and certifying the amount of the proposed purchase price. 23-12898/310835 79 Prior to conveyance of the Restricted Unit, each approved purchaser shall also submit to the City an executed disclosure statement which certifies that the purchaser is aware that: (i) the purchaser buying the Restricted Unit may only sell the Restricted Unit at an Affordable Housing Cost to a Moderate Income Household as provided in Section 1 above, (ii) the maximum permitted sales price may be less than fair market value and (iii) the Restricted Unit must be owner-occupied at all times and cannot be rented or leased. The approved purchaser shall also submit an executed promissory, trust deed, notice documents, and any other documentation reasonably required by the City to effectuate the Affordable Housing Program. Owner shall cooperate with the City in providing such forms to proposed purchasers and in assisting proposed purchasers to prepare such forms and to provide any required information to the City in connection with only the Owner's sale of the Restricted Unit. 7. Non-Discrimination Covenants. Owner covenants by and for itself, it successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability, in the sale, transfer, use, occupancy, tenure or enjoyment of the Restricted Unit, nor shall Owner itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, subtenants, or vendees in the Restricted Unit. Owner and its successors and assigns shall refrain from restricting the sale of the Restricted Unit on the basis of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability, of any person. All such deeds or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clause: (a)In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability, in the sale, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (b)In contracts: "There shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability, in the sale, transfer, use, 23-12898/310835 80 occupancy, tenure or enjoyment of the premises, nor shall the transferor himself or herself of any person claiming under or though him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use of occupancy of tenants, subtenants or vendee of the premises." ( c)In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assignees, and all persons claiming under or though him or her, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or though him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, sublessees, subtenants, or vendees in the premises herein leased." Nothing in this Section 7 shall be construed to authorize the rental or lease of the Restricted Unit if such rental or lease is not otherwise permitted. 8.Encumbrances. 8.1 Financings on Transfer. This Section 8 shall not prohibit the encumbering of title for the sole purpose of securing financing of the purchase price of the Restricted Unit upon a Transfer thereof; however, any such financing shall be for the Owner and (i)must be a First Lien, (ii) must not be in excess of the Affordable Housing Cost of the Restricted Unit as of date of approval for the financing, (iii) must be in compliance with these Resale Restrictions and the Affordable Housing Deed of Trust, and (iv) shall be subordinate to these Resale Restrictions. 8.2 Subordination. These Resale Restrictions shall have priority over all monetary liens and encumbrances for the Affordability Period. However, the Affordable Housing Deed of Trust only may be subordinated to a First Lien on the Restricted Unit that secures the payment of a principal amount that is not in excess, as of the date of approval for said financing, of the Affordable Housing Cost of the Restricted Unit. The City shall execute a written instrument for the subordination of its rights under the Affordable Housing Deed of Trust in the form approved by the City Attorney as may reasonably be requested by the Lender. The City's agreement to so subordinate its rights is subject to agreement in writing by the Lender providing the City the following rights: 23-12898/310835 81 (a)Upon the occurrence of a Default under any of the First Lien documents, the holder of the First Lien shall promptly notify the City of the occurrence of such Default, which notification shall be provided to the City contemporaneously" with the delivery to Owner of any notice of Default under any of the First Lien documents; and (b)The City shall have the right, during the cure periods which apply to the Owner pursuant to the First Lien documents and any cure period which may apply to the City under applicable law, to cure the Owner's Default relative to the First Lien; and ( c)After a Default on any of the First Lien documents but prior to a foreclosure sale or deed in lieu assignment of the Restricted Unit, the City shall have the right to take title to the Restricted Unit and cure the Default relative to the First Lien documents, without the holder of the First Lien exercising any right it might otherwise have to accelerate the obligations secured by the First Lien by reason of such title transfer, so long as the City promptly cures any such Default upon taking title to the Restricted Unit. 8.3 Request for Notice of Default. The City may cause a Request for Notice to be recorded on the Restricted Unit subsequent to the recordation of the First Lien deed of trust or mortgage requesting a statutory notice of Default as set forth in California Civil Code Section 2924b. 8.4 Further Encumbrances Prohibited. Owner shall not record or cause or permit the recordation of any deed of trust, mortgage, lien or other instrument creating a security interest in or to the Restricted Unit (a "Further Encumbrance") other than these Resale Restrictions, the First Lien and the Affordable Housing Deed of Trust. 9.Uses. The Restricted Unit shall be used as the principal residence of Owner and owner's family and may not be rented or leased. Owner covenants and agrees to devote, use, and maintain the Restricted Unit in accordance with these Resale Restrictions. All uses conducted on the Restricted Unit, including, without limitation, all activities undertaken by the Owner pursuant to these Resale Restrictions, shall conform to all applicable provisions of federal, state, and local laws, including the Huntington Beach Municipal Code, and the City Housing Regulations. 10.Maintenance of Unit. Owner shall maintain the Restricted Unit in a manner consistent with community standards, which will uphold the value of the Restricted Unit, in accordance with the Huntington Beach Municipal Code. Owner also shall comply with all applicable federal, state and local laws. 11.Effect of Violation of the Terms and Provisions of These Resale Restrictions. 11.1 Covenants Run with the Land. These Resale Restrictions are designed to create equitable servitudes and covenants running with the Restricted Unit, in accordance with the provisions of Civil Code Section 1468, and the State Density Bonus Law and the Huntington Beach Zoning and Subdivision Ordinance. The covenants, conditions, restrictions, 23-12898/310835 82 reservations, equitable servitudes, liens and charges set forth herein shall run with the Restricted Unit and shall be binding upon all persons having any right, title or interest in the leasehold interest in the Restricted Unit, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of the City and its successors and assigns, shall be binding upon Owner, and its successors and assigns; and may be enforced by City and its successors and assigns. Owner hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that the Owner's interest in the Restricted Unit is rendered less valuable thereby. Owner hereby further declares its understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Restricted Unit by Owner, and by furthering public purposes for City. In amplification and not in restriction of the provisions hereinabove, it is intended and agreed that City is deemed a beneficiary of the agreements and covenants provided herein both for and in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of City and such covenants shall run in favor of City for the entire period during which such covenants shall be in force and effect, without regard to whether City is or remains an owner of any land or interest therein to which such covenants relate. However, all such covenants and restrictions shall be deemed to run in favor of all real property owned by the City which real property shall be deemed the benefited property of such covenants. Furthermore, all of the covenants, conditions, and restrictions contained herein shall also constitute easements in gross running in favor of the City. City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant. 11.2 Notice of Default. Failure or delay by Owner to perform any term or provision of these Resale Restrictions which is not cured within thirty (30) days after receipt of notice from the City constitutes a Default under these Resale Restrictions; provided, however, if such Default is of the nature requiring more than thirty (30) days to cure, Owner may avoid Default hereunder by immediately commencing to cure within such thirty (30) day period, and thereafter diligently pursuing such cure to completion within sixty (60) days after the expiration of the initial thirty (30) day period, for a total of ninety (90) days. Failure or delay in giving notice by the City shall not constitute a waiver of any Default, nor shall it change the time of Default. 11.3 City's Remedies. Upon the declaration of a Default, the City may (i)apply to a court of competent jurisdiction for specific performance, for an injunction prohibiting any act or omission in violation of these Resale Restrictions, or for any such other relief as may be appropriate, (ii) exercise the City's rights under these Resale Restrictions and the Affordable Housing Deed of Trust, including, without limitation, foreclosure of the Restricted Unit, and (iii) pursue such other rights and remedies permitted under these Resale Restrictions and by applicable law. 23-12898/310835 83 11.4 Prohibited Transfers Void. Any attempt by the Owner to make a Prohibited Transfer of title to or any interest in the Restricted Unit in violation of these Resale Restrictions shall be void and subject to rescission, specific performance, or any other right or remedy available at law or in equity. 12.Governing Law. Owner hereby agrees to comply with all ordinances, rules and regulations of the City, including the City Housing Regulations. Nothing in these Resale Restrictions is intended to be, nor shall it be deemed to be, a waiver of any City ordinance, rule or regulation. These Resale Restrictions shall be governed by the laws of the State of California without regard to conflict of law principles. Any legal action brought under these Resale Restrictions must be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. 13.Attorneys' Fees and Costs. If either Party to these Resale Restrictions institutes any action against the other Party arising out of or in connection with to these Resale Restrictions, each Party shall bear its own attorney's fees and costs of suit. 14.Severability. So long as the material bargain of the Parties may be preserved, any provision of these Resale Restrictions that is deemed to be illegal, invalid or unenforceable by an arbitrator or court of competent jurisdiction shall be ineffective to the extent of the invalidity or unenforceability of such provision and shall be deemed stricken from these Resale Restrictions. Any stricken provision shall not affect the legality, enforceability or validity of the remainder of these Resale Restrictions. If any provision of these Resale Restrictions is stricken in accordance with the provisions of this Section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable and valid provision that is as similar in tenor and intent to the stricken provision as is legally possible. Any such invalidity or unenforceability of any provision in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 15.Exhibits. Each of the Attachments referenced in these Resale Restrictions and attached hereto is incorporated into these Resale Restrictions by this reference as though fully set forth in this Section. 16.Counterparts. This Resale Restrictions may be executed by the Owner, City, and Authority in counterparts, which counterparts shall be construed together and have the same effect as if the Owner, City, and Authority had executed the same instrument. IN WITNESS WHEREOF, the Parties have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized as of the date set forth above. 23-12898/310835 84 OWNER: A By: ___________ _ Its: ------------- By: ____________ _ Its: ------------- CITY: CITY OF HUNTINGTON BEACH, a California municipal corporation Mayor ATTEST: City Clerk AUTHORITY: HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: ___________ _ Chairperson 23-12898/310835 85 ATTEST: Authority Clerk APPROVED AS TO FORM: City Attorney/ Authority Counsel INITIATED AND APPROVED: City Manager 23-12898/310835 86 EXHIBIT "A" LEGAL DESCRIPTION OF THE THIRTEEN AFFORDABLE UNITS AT 7225 EDINGER AVENUE, HUNTINGTON BEACH SUBJECT TO THE AFFORDABLE HOUSING COVENANT FOR 7225 EDINGER AVENUE, HUNTINGTON BEACH (The Affordable Housing Covenant Is Exhibit "C" to the Affordable Housing Agreement for 7225 Edinger Avenue, Huntington Beach) 23-12898/310835 87 23-12898/310835 EXHIBIT "B" NOTICE OF AFFORDABILITY RESTRICTION (The Notice is an Exhibit to the Affordable Housing Covenant, which is Exhibit "C" to the Affordable Housing Agreement for 7225 Edinger Avenue, Huntington Beach) 88 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 (Space Above For Recorder's Use) This Affordable Housing Agreement is recorded at the request and for the benefit of the City of Huntington Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Unit_, 7225 Edinger Avenue, Huntington Beach, CA 92647) NOTICE IS HEREBY GIVEN by _____ ("Owner"), owner of the property located at 7225 Edinger Lane, Unit _, Huntington Beach, California 9264 7, Assessor's Parcel Map No. ___ _., and more particularly described in Exhibit "A" attached hereto (the "Property"), that: 1.On ______ , 202_, the "Declaration of Conditions, Covenants and Restrictions," were recorded against the Property as Instrument No. _______ in the Office of the County Recorder of the County of Orange (the "Resale Restrictions"). Further, concurrently with this Notice, a "Deed of Trust with Assignments of Rents to Secure the Affordability Restrictions on Transfer of the Property" ("Deed of Trust") was recorded concurrently with this Notice. Among other things, the Resale Restrictions, as amended by the Deed of Trust, limit the price that the Property may be sold to an "Affordable Housing Cost" for "Moderate Income Households," as those terms are defined in the Resale Restrictions, and further defined in the current Affordable Housing Regulations of the City of Huntington Beach and the Deed of Trust. 2.The administration of the Resale Restrictions shall be governed by the Affordable Housing Regulations of the City of Huntington Beach, dated August 15, 2011, as they exist now and may be amended in the future. 3.In summary, the Property may only be sold to a "Moderate Income Household" at a price that does not exceed the "Affordable Housing Cost." The Affordable Housing Cost is the purchase price for the sale of the Property, assuming the payment by the 1 89 purchaser of a down payment in the amount of 10% of the purchase price, that results in monthly housing payments which do not exceed Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County monthly median income for a household equal to the number of bedrooms in the unit plus one (1) person. In determining monthly housing payments, the City will assume principal and interest payments on a conventional home mortgage after paying a ten percent (10%) down payment. The mortgage interest rate will be the prevailing Fannie Mae thirty (30) year mortgage rate, or a City-selected equivalent. Monthly housing costs will also include homeowner's association dues, utilities, homeowner's insurance, maintenance costs and property taxes. Further, a qualifying buyer of the Property shall be a "Moderate Income Household" whose income does not exceed One Hundred Twenty Percent (120%) of the current Orange County monthly median income for a household equal to the number of bedrooms in the unit plus one (1) person. 4.The effect of relying on prevailing interest rates to determine the Affordable Housing Cost is to make the resale price of the Property sensitive to interest rates. For example, if interest rates rise, the resale price will fall, and if interest rates fall, the resale price will rise. This could result in the Affordable Housing Cost decreasing below the original purchase price. 5.In the event that Owner decides to sell or otherwise Transfer of the Property, Owner shall contact the City to obtain the current Affordable Housing Cost, which shall be the maximum sales price of the Property. City shall provide the Affordable Housing Cost pursuant to its current Affordable Housing Regulations. Regarding the Affordable Housing Cost, Owner acknowledges that: OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER, UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF A PROPOSED SALE OR OTHER TRANSFER OF THE RESTRICTED UNIT, TAKING INTO CONSIDERATION PREVAILING INTEREST RATES, THE OFFERED TERMS OF SALE, THE ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE SAME OR SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS COVENANT. OWNER, AND EACH SUCCESSOR, HEIR OR ASSIGN OF OWNER, FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE TRANSFER PRICE, THE PRIMARY OBJECTIVE OF THE CITY AND THESE RESALE RESTRICTIONS IS TO PROVIDE HOUSING TO MODERATE INCOME HOUSEHOLDS AT AN AFFORDABLE HOUSING COST. 2 90 Owner's Initials 6.The City shall approve a Transfer of the Property if such Transfer complies with the Resale Restrictions. 7.The Property shall be owner-occupied at all times and shall not be leased or rented. 8.The Resale Restrictions imposed on the Property began on--� 20_ and expire forty-five years later, on _____ ___, 20 . This Notice is recorded for the purpose of providing notice only and does not modify the provisions of the Resale Restrictions or the Deed of Trust. Dated: ----------By: _______________ _ APPROVED AS TO FORM: Dated: --------By:--------------City Attorney 3 91 Exhibit "A" Legal Description 4 92 EXHIBIT "C" PROMISSORY NOTE (The Promissory Note is an Exhibit to the Affordable Housing Covenant, which is Exhibit "C" to the Affordable Housing Agreement for 7225 Edinger Avenue, Huntington Beach} 23-12898/310835 93 PROMISSORY NOTE TO SECURE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Unit_, 7225 Edinger Avenue, Huntington Beach, CA 92647) THIS PROMISSORY NOTE (the "Note") is dated this __ day of ____ _ 2023, between ________ ("Promissor") and the Housing Authority of the City of Huntington Beach ("Authority") with reference to the following facts: A.This Promissory Note is made in reference to that property in the City of Huntington Beach, County of Orange, State of California, with the street address Unit __ _ 7225 Edinger Avenue, Huntington Beach, California 92647, and the Assessor's Parcel Map No. _____ (the "Property"). B.On _____ , 2024, the "Declaration of Conditions, Covenants and Restrictions for Property," were recorded against the Property as Instrument No. ________ in the Office of the County Recorder of the County of Orange (the "Resale Restrictions"). Among other things, the Resale Restrictions limit the price that the Property may be sold to an "Affordable Housing Cost" to "Moderate Income Households," as that term is defined in the Resale Restrictions, and further defined in the Affordable Housing Regulations. The Affordable Housing Regulations, as they may be amended from time to time, are utilized to implement the provisions of the Resale Restrictions. C.The Affordable Sales Price pursuant to the Resale Restrictions shall be the purchase price for the sale of the Property, assuming the payment by the purchaser of a down payment in the amount of 10% of the purchase price, that would result in monthly housing payments for a Moderate Income Household that does not exceed Thirty-Five Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County monthly median income for a household equal to the number of bedrooms in the Property plus one (1) person. In determining monthly housing payments, the City will assume principal and interest payments on a conventional home mortgage after paying a ten percent (10%) down payment. The mortgage interest rate will be the prevailing Fannie Mae or Freddie Mac thirty (30) year mortgage rate, or a City-selected equivalent. Monthly housing costs will also include homeowner' s association dues, utilities, homeowner's insurance, maintenance costs and property taxes. Further, a qualifying buyer of the Property shall be a "Moderate Income Household" whose income does not exceed One Hundred Twenty Percent (120%) of the current Orange County monthly median income for a household equal to the number of bedrooms in the unit plus one (1) person. The effect of relying on prevailing interest rates to determine the Affordable Housing Cost is to make the resale price of the Property sensitive to interest rates. For example, if interest rates rise, the resale price will fall, and if interest rates fall, the resale price will rise. This could result in the Affordable Housing Cost decreasing below the original purchase price. D.The Resale Restrictions imposed on the Property began on ___ , 20_, and expire forty-five (45) years later, on ____ ., 20_. E.The administration of the Resale Restrictions shall be governed by the Affordable Housing Regulations of the City of Huntington Beach, dated August 15, 2011, as they exist now and may be amended in the future. 23-12898/310836 1 94 F.Concurrently with executing this Note, Promissor has executed a Deed of Trust securing and amending the Resale Restrictions (the "Authority of Deed of Trust"). G.Pursuant to the Resale Restrictions, the City has approved the transfer of the Property to Promissor at an Affordable Housing Cost. To insure that any further sale, transfer or assignment of the Property occurs with the City's approval and at an Affordable Housing Cost, the City has required as a condition of the Promissor' s transfer of the Property that Promissor execute this Note. AGREEMENT NOW, THEREFORE, the parties agree as follows: 1.Incorporation of Recitals. The recitals set forth above are incorporated by reference as though fully set forth herein. 2.Amount of the Note. The Amount of this Note is the "Transfer Price" of the Property, less the "Affordable Housing Cost." The Transfer Price shall be determined according to the circumstances that cause the Amount of the Note to become due pursuant to Section 3 of this Note. In the case of the sale of the Property without the City's consent, the Transfer Price shall be the market sales price. In the case of the financing or refinancing of the Property without the City's consent, the Transfer Price shall be the loan amount in excess of the last loan balance on the First Mortgage that the City previously approved. In all other cases, the Transfer Price shall be the fair market value of the Property as established by the Director of Community Development of the City pursuant to an appraisal. The term "Affordable Housing Cost" shall be defined according to the current Affordable Housing Regulations as adopted by the City of Huntington Beach. Promissor promises to pay the Amount of this Note when due to the Housing Authority at 2000 Main Street, P.O. Box 190, Huntington Beach, California 92648, or at such other address as Authority may direct from time to time in writing. All sums hereunder shall be payable in lawful money of the United States of America and all sums shall be credited first to interest then due and the balance to principal. 3.Due on Sale, Transfer or Refinancing. Promissor agrees to notify the Authority not less than thirty (30) days prior to (i) the sale or transfer of the Property or (ii) any financing or refinancing of the Property. This Note shall be due and payable upon (i) such sale or transfer without the City's consent, (ii) the financing or refinancing of the Property without the City's consent, (iii) Promissor is no longer an occupant of the Property, or (iv) Promissor is in material default of any other obligation under the Resale Restrictions, or the Authority Deed of Trust. 4.Expiration of the Note Obligation. In the event Promissor does not sell or transfer the Property, does not fail to occupy the Property, does not refinance, or is not in material breach of any other provision of the Resale Restrictions or the Authority Deed of Trust before the forty­ fifth (45th) anniversary of the date of this Note, Promissor shall have no obligation to pay the Note Amount to Authority upon later sale, transfer or refinancing of the Property. 5.Default. The entire unpaid Amount of this Note shall be due and payable in full in the event of a default. The following shall be deemed to be an event of default: 23-12898/310836 2 95 (i.) The City determines that the Promissor has made a misrepresentation to obtain the benefits of purchase of the Property or in connection with its obligations under the Resale Restrictions; (ii.) The Promissor fails to occupy the Property as required pursuant to the Resale Restrictions and the Authority Deed of Trust, and such failure continues following written notice by the City and sixty (60) days opportunity to cure following the date of such notice; (iii.) The Promissor rents the Property in violation of the Resale Restrictions and the Authority Deed of Trust, and such failure continues following written notice by the City and sixty (60) days opportunity to cure; (iv.) The Promissor fails to provide information to the City necessary to determine Promissor's compliance with the requirements of the Resale Restrictions; (v.) The Promissor makes a transfer of the Property in violation of the Resale Restrictions; (vi.) The Promissor otherwise fails to comply with the requirements of the Resale Restrictions, and such violation is not corrected to the satisfaction of the City within thirty (30) days after the date of written notice by the City to the Trustor of such violation; (vii.) A notice of default is issued under the First Mortgage Loan or other financing secured by the Property; (viii.) A lien is recorded against the Property other than the lien of a bona fide mortgage loan. (ix.) Promissor places a mortgage on the Property without the pnor approval of the Authority. (x.) Promissor declares bankruptcy or makes an assignment of assets for the benefit of creditors. (xi.) The Promissor fails to pay any real property taxes or insurance premiums on the Property as they become due. (xii.) Promissor continues to materially breach the Resale Restrictions or the Authority Deed of Trust, following the City or the Authority giving notice of the breach and an opportunity to cure. (viii.) Promissor fails to pay the Note Amount when due. 6.This Note is secured by a concurrently executed Deed of Trust, to the City of Huntington Beach, as Trustee, executed by Promissor in favor of the Authority. 7.Notice. All payments, notices, consents, waivers and other communications under this Agreement must be in writing and shall be deemed to have been given when (a) 23-12898/310836 3 96 delivered by hand, or, (b) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case addressed as set forth below: If to PRO MIS SOR: 7225 Edinger Avenue, Unit_ Huntington Beach, CA 9264 7 Ifto AUTHORITY: Housing Authority of the City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: City Clerk and Deputy Director of Community Development City of Huntington Beach 2000 Main Street, 5 th Floor Huntington Beach, CA 92648 8.Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of California without giving effect to the conflict of laws principles thereof. The parties agree to personal jurisdiction in the State Courts in Orange County, California and specifically waive any claims of forum non-conveniens. 9.Modification. This Agreement shall not be amended or modified, except in writing, signed by both parties. 10.Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns under this Note. This Note shall not be assigned without the express written consent of Authority. Dated: ---------- Dated: ---------- Dated: ---------- 23-12898/31083 6 PROMISSOR: By: ____________ _ HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH: By: _______________ _ Deputy Director of Community Development APPROVED AS TO FORM: By: ____________ _ City Attorney 4 97 EXHIBIT "D" AFFORDABLE HOUSING DEED OF TRUST (The Affordable Housing Deed of Trust is an Exhibit to the Affordable Housing Covenant, which is Exhibit "C" to the Affordable Housing Agreement for 7225 Edinger Avenue, Huntington Beach) 23-12898/310835 98 OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 Recording Requested By: Housing Authority of City of Huntington Beach 2000 Main Street, 5 th Floor Huntington Beach, California 92648 Attention: Community Enhancement SPACE ABOVE THIS LINE FOR RECORDER'S USE DEED OF TRUST WITH ASSIGNMENTS OF RENTS TO SECURE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Unit_, 7225 Edinger Avenue, Huntington Beach, CA 92647) THIS DEED OF TRUST is made this __ day of _____ _, 202 _ by and among ________ (the "Trustor"), whose address is Unit -� 7225 Edinger Avenue, California 92647 ("Trustor") and the CITY OF HUNTINGTON BEACH, a municipal corporation (the "Trustee") and the HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic (the "Beneficiary"), whose address is 2000 Main Street, Huntington Beach, California 92648, with reference to the following facts: A.This Deed of Trust is made in reference to that property in the City of Huntington Beach, County of Orange, State of California, described legally in the Legal Description attached hereto as Exhibit "A" and incorporated herein with the street address Unit __ , 7225 Edinger A venue, Huntington Beach, California, 9264 7, and the Assessor's Parcel Map No. _____ (the "Property"). B.The City has adopted an Inclusionary Housing Ordinance (the "Inclusionary Ordinance," currently Section 230.26 of the City Zoning Code). C.On ____ _,, 2023, the "Declaration of Conditions, Covenants and Restrictions for Property," was recorded against the Property as Instrument No. _______ in the Office of the County Recorder of the County of Orange (the "Resale Restrictions"). Among other things, the Resale Restrictions limit the price that the Property may be sold to an "Affordable Housing Cost" to "Moderate Income Households," as that term is defined in the Resale Restrictions, and further defined in the Affordable Housing Regulations. The Affordable Housing Regulations, as they may be amended from time to time, are utilized to implement the provisions of the Resale Restrictions. D.The Affordable Sales Price pursuant to the Resale Restrictions shall be the purchase price for the sale of the Property, assuming the payment by the purchaser of a down payment in the amount of 10% of the purchase price, that would result in monthly housing payments for a Moderate Income Household that does not exceed the product of Thirty-Five 23-12898/310838 1 99 Percent (35%) of One Hundred Ten Percent (110%) of the current Orange County monthly median income for a household equal to the number of bedrooms in the Property plus one (1) person. In determining monthly housing payments, the City will assume principal and interest payments on a conventional home mortgage after paying a ten percent (10%) downpayment. The mortgage interest rate will be the prevailing Fannie Mae or Freddie Mac thirty (30) year mortgage rate, or a City-selected equivalent. Monthly housing costs will also include homeowner's association dues, utilities, homeowner's insurance, maintenance costs and property taxes. Further, a qualifying buyer of the Property shall be a "Moderate Income Household" whose income does not exceed One Hundred Twenty Percent (120%) of the current Orange County monthly median income adjusted for household size. The effect of relying on prevailing interest rates to determine the Affordable Sales Price is to make the resale price of the Property sensitive to interest rates. For example, if interest rates rise, the resale price will fall, and if interest rates fall, the resale price will rise. This could result in the Affordable Sales Price decreasing below the original purchase price. E.The administration of the Resale Restrictions, as modified by this Deed of Trust, shall be governed by the Affordable Housing Regulations of the City of Huntington Beach, as they exist now and may be amended in the future. F.Pursuant to this Deed of Trust, the Resale Restrictions expire on ___ , 20_ (the "Expiration Date"). NOW, THEREFORE, TRUSTOR HEREBY irrevocably grants, transfers and assigns, to Trustee, in trust, with power of sale of the Property, together with (a) all buildings, improvements and fixtures, now or hereafter placed thereon, it being understood and agreed that all classes of property attached or unattached used in connection herewith shall be deemed fixtures, (b) rents, issues and profits thereof, ( c) any water rights and/or stock are appurtenant or pertain to said land, and ( d) all sums of money payable on the purchase price of the Property secured by a lien thereon or payable under any agreement for the sale thereof, SUBJECT, HOWEVER, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits, and all sums of money payable on the purchase price of the Property secured by a lien thereon or payable under any agreement. A.FOR THE PURPOSE OF SECURING: 1.Payment of the indebtedness evidenced by a promissory note executed by Trustor concurrently with this Deed of Trust (the "City Note"). The Amount of the City Note is the "Transfer Price" of the Property, less the "Affordable Housing Cost." The calculation of the Amount is set forth with specificity in the Note, which is on file with the Community Development Department of the City of Huntington Beach. 2.Performance of each and every obligation, covenant, promise and agreement of the Resale Restrictions. 23-12898/310838 2 100 B.TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES: 1.Restriction on Resale or Transfer of Property. Trustor agrees for itself, and its successors and assigns, and every successor to Trustor's interest in the Property, or any part thereof until the Expiration Date, to perform all obligations due under the Resale Restrictions, as those obligations are restated and modified as set forth below: (a)The Property shall only be owned and occupied by persons or families of "Moderate Income." "Moderate Income" shall mean persons or families earning one hundred twenty percent (120%) or less of Orange County median income, adjusted for appropriate family size. (b)The Property may only be sold to "Moderate Income" households at an "Affordable Housing Cost," as that term is further defined in Affordable Housing Regulations. Generally, those Regulations define Affordable Housing Cost to mean that purchase price for the sale of Property, assuming the payment by the purchaser of a down payment in the amount of 10% of the purchase price, which would result in monthly housing payments, which do not exceed the product of Thirty-Five Percent (35%) times One Hundred Ten Percent (110%) for Moderate Income Households of the current Orange County monthly median income for a household equal to the number of bedrooms in the unit plus one (1) person. In determining monthly housing payments, the City will assume principal and interest payments on a conventional home mortgage after paying a ten percent (10%) downpayment. The mortgage interest rate will be the prevailing Fannie Mae thirty (30) year mortgage rate, or a City-selected equivalent. Monthly housing costs will also include homeowner' s association dues, utilities, homeowner' s insurance, maintenance costs and property taxes. The effect of relying on prevailing interest rates to determine the Affordable Housing Cost is to make the resale price of the Property sensitive to interest rates. For example, if interest rates rise, the resale price will fall, and if interest rates fall, the resale price will rise. This could result in the Affordable Housing Cost decreasing below the original purchase price of the Property. Regulations. ( c)The Trustor shall further comply with the Affordable Housing (d)No transfer of the Property shall occur until the City of Huntington Beach determines (a) that the proposed purchaser intends to occupy the Property as the proposed purchaser's principal residence, (b) that the proposed purchaser is a person or family of Moderate Income, and ( c) that the proposed transfer occurs at an Affordable Housing Cost. The City of Huntington Beach shall not be obligated to approve a transfer until and unless the proposed purchaser has submitted to the City of Huntington Beach such information and completed such forms as the City of Huntington Beach shall request to certify the proposed purchaser's intent with respect to its residency of the Property and its gross income, and the proposed purchaser has 23-12898/310838 3 101 submitted an affidavit disclosing and certifying the amount of the proposed purchase price. Prior to conveyance of the Property, each approved purchaser shall submit to the City of Huntington Beach an executed disclosure statement which certifies that the purchaser is aware that the purchaser may only sell the unit at an Affordable Housing Cost to a Moderate Income person or family, that the maximum permitted sales price may be less than fair market value and that the unit must be owner-occupied at all times and cannot be rented or leased. TRUSTOR AND EACH SUCCESSOR, HEIR OR ASSIGN OF TRUSTOR UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, THE TERMS OF SALE OFFERED TO AND THE ECONOMIC CIRCUMSTANCES OF THE PROPOSED PURCHASER AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE PROPERTY AND MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. TRUSTOR AND EACH SUCCESSOR, HEIR OR ASSIGN OF TRUSTOR FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE TRANSFER PRICE THE PRIMARY OBJECTIVE OF THE BENEFICIARY AND THIS DEED OF TRUST IS TO PROVIDE HOUSING TO ELIGIBLE PERSONS OR F AMILIES AT AN AFFORDABLE HOUSING COST. Trustor Initials ( e)The City of Huntington Beach may impose any conditions on the approval of any transfer of the Property as it determines are reasonably necessary for the effective administration of its Affordable Housing Program. Such conditions may include, but are not limited to, requiring the prospective purchaser to sign: (i) a promissory note in favor of the City by which he or she agrees to pay any excess proceeds of sale or in excess rental proceeds to the City, and (ii) a deed of trust on the Property securing both the Resale Restrictions and the promissory note. (f)The Trustor shall occupy the Property as the Trustor's principal place of residence and shall not lease or rent the Property. The Trustor shall provide an annual written certification to the City that the Trustor is occupying the Property as his or her principal place of residence, and that the Trustor is not renting the Property to another party. (g)The Resale Restrictions shall run with the land and shall automatically terminate and be of no further force or effect on ____ _, 20 . 2.Defaults. 23-12898/310838 4 102 (a)The following events shall constitute a Default by the Trustor under the Resale Restrictions: (1)The City determines that the Trustor has made a misrepresentation to obtain the benefits of purchase of the Property or in connection with its obligations under the Resale Restrictions; (2)The Trustor fails to occupy the Property as his or her principal place of residence as required pursuant to Section l(f) above, and such failure continues following written notice by the City and sixty (60) days opportunity to cure following the date of such notice; (3)The Trustor rents the Property in violation of Section l(f) above, and such failure continues following written notice by the City and sixty (60) days opportunity to cure; ( 4)The Trustor fails to provide information to the City necessary to determine Trustor's compliance with the requirements of the Resale Restrictions; Restrictions; ( 5)The Trustor transfers the Property in violation of the Resale (6)The Trustor otherwise fails to comply with the requirements of the Resale Restrictions, and such violation is not corrected to the satisfaction of the City within thirty (30) days after the date of written notice by the City to the Trustor of such violation; (7)A notice of default is issued under the First Mortgage Loan or other financing secured by the Property; bona fide mortgage loan. Section 9 below; or (8)A lien is recorded against the Property other than the lien of a (9)Trustor places a mortgage on the Property in violation of (10)Trustor declares bankruptcy or makes an assignment of assets for the benefit of creditors. (b)Upon a declaration of Default by the City under the Resale Restrictions, the City may exercise any remedies at law or in equity, including without limitation, any or all of the following, none of which shall be an exclusive remedy: (1)Declare the City Note due and payable without further demand and accelerate payments due under the City Note; (2)Invoke the power of sale under this Deed of Trust; 23-12898/310838 5 103 (3)Apply to a court of competent jurisdiction for such relief at law or in equity as may be appropriate; (4)Take such enforcement action as 1s authorized under the Huntington Beach Municipal Code; and (5)Declare a Default under the City Note and this Deed of Trust and pursue all City remedies under the City Note and the City Deed of Trust. 3.Notice of Default and Foreclosure. A request for notice of default and any notice of sale under any deed of trust or mortgage with power of sale encumbering the Property shall be recorded by the City in the Office of the Recorder of the County of Orange. The City may declare a Default under this Resale Agreement upon receipt of any notice given to the City pursuant to Civil Code section 29246, and may exercise its rights as provided in Sections 2 and 4. In the event of default and foreclosure, the City shall have the same right as the Trustor to cure defaults and redeem the Property prior to the foreclosure sale. Nothing herein shall be construed as creating any obligation of the City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions of the underlying deed of trust or mortgage. If the City failed to file the request for notice of default, the City's right to purchase the Property shall commence from the date a notice of default is given by the City to the Trustor. 4.Purchase Option Upon Default. Notwithstanding, and in addition to the remedies provided the City in Section 2, the Trustor hereby grants to the City the option to purchase the Property following written notice by the City to the Trustor of the declaration of a Default by the City under the Resale Restrictions. This option to purchase is given in consideration of the economic benefits received by the Trustor resulting from ownership of the Property made possible by the City's Affordable Housing Program. The City shall have thirty (30) days after a Default is declared to notify the Trustor and the First Lender of its decision to exercise its option to purchase under this Section 4. Not later than ninety (90) days after the notice is given by the City to the Trustor of the City's intent to exercise its option under this Section 4, the City shall purchase the Property for the Affordable Housing Cost calculated in the manner set forth in Section 1. 5.Restrictions on Foreclosure Proceeds. If a creditor acquires title to the Property through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the Trustor shall not be entitled to the proceeds of sale to the extent that such proceeds otherwise payable to the Trustor when added to the proceeds paid or credited to the creditor exceed the Affordable Housing Cost. The Trustor shall instruct the 23-12898/310838 6 104 holder of such excess proceeds to pay such proceeds to the City in consideration of the benefits received by the City through purchase of the Property under the City's Inclusionary Housing Program. 6.Restrictions on Insurance Proceeds. If the Property is damaged or destroyed and the Trustor elects not to rebuild the Property, the Trustor shall pay the City the portion of any insurance proceeds received by the Trustor for such destruction or damage, which is in excess of the Affordable Housing Cost calculated pursuant to Section 1 above. 7.Superiority of Resale Restrictions. The Trustor covenants that he or she shall has not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions hereon, and that, in any event, the Resale Restrictions are controlling as to the rights and obligations between and among the Trustor, the City and their respective successors. 8.Subordination. (a)Notwithstanding any prov1s10n herein, the Resale Restrictions shall not diminish or affect the rights of the First Lender under the First Lender Deed of Trust or any subsequent First Lender Deeds of trust hereafter recorded against the Property in compliance with the Resale Restrictions. (b)The City may subordinate the Resale Restrictions and this Deed of Trust to the lien of a First Lender Deed of Trust, in which case the Resale Restrictions and this Deed of Trust shall not impair the rights of the First Lender, or such lender's assignee or successor in interest, to exercise its remedies under the First Lender Deed of Trust by the Trustor. Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, the Resale Restrictions and this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquires title to the Property pursuant to a deed or assignment in lieu of foreclosure, the Resale Restrictions and this Deed of Trust shall automatically terminate upon such acquisition of title, only if (i) the City has been given written notice of default under such First Lender Deed of Trust with a sixty (60) day cure period, (ii) the City shall not have cured the default within such sixty (60) day period or commenced to cure and given its firm commitment to complete the cure in form and substance acceptable to the first lender, or (iii) the City shall not have exercised its option to purchase the Property pursuant to Section 4 above within such sixty (60) day period and then proceeded diligently to cure the default within sixty (60) days of acquiring title to the Property. 9.Refinance of First Mortgage Loan; Further Encumbrance of Property. Trustor may not refinance of the first mortgage on the Property and/or add a second mortgage on the Property without approval of the City. The City shall only approve refinancing in compliance with the Affordable Housing Regulations. 23-12898/310838 7 105 10.Interpretation of Resale Restrictions. The terms of the Resale Restrictions shall be interpreted so as to avoid speculation on the Property and to ensure to the extent possible that its sales price and mortgage payments remain affordable to Moderate Income Households. 11.Covenants Running with the Land. (a)Truster hereby subjects the Property to the covenants and restrictions set forth in the Resale Restrictions. Truster hereby declares its express intent that the covenants and restrictions set forth in the Resale Restrictions shall be deemed covenants running with the land in perpetuity, shall pass to, and be binding upon all parties having any interest in the Property throughout the term of the Resale Restrictions. Each and every contract, deed, lease or other instrument covering, conveying or otherwise transferring the Property or any interest therein, as the case may be, shall conclusively be held to have been executed, delivered and accepted subject to the Resale Restrictions regardless of whether the other party or parties to such contract have actual knowledge of such Resale Restrictions. (b)The Truster and the City hereby declare their understanding and intent that: (i) the covenants and restrictions contained in the Resale Restrictions shall be construed as covenants running with the land pursuant to California Civil Code section 1468 and not as conditions which might result in forfeiture of title by Truster; (ii) the burden of the covenants and restrictions set forth in the Resale Restrictions touch and concern the Property in that the Truster's legal interest in the Property may be rendered less valuable thereby; and (iii) the benefit of the covenants and restrictions set forth in the Resale Restrictions touch and concern the land by enhancing and increasing the enjoyment and use of the Property by eligible purchasers, the intended beneficiaries of such covenants and restrictions. ( c)All covenants and restrictions contained herein in the Resale Restrictions without regard to technical classification or designation shall be binding upon Truster for the benefit of the City and eligible purchasers and such covenants and restrictions shall run in favor of such parties for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is the owner of any land or interest therein to which such covenants and restrictions relate. 12.Truster's Acknowledgement of Resale Restrictions. Truster hereby acknowledges and agrees that: (1)Truster hereby subjects the Property to certain restrictions and limits the price for which Truster may sell the Property and the persons to whom Truster may sell the Property. The Affordable Housing Cost and other provisions contained in the Resale Restrictions restrict the full benefits of owning the Property. Truster may not enjoy the same economic or 23-12898/310838 8 106 other benefits from owning the Property that Trustor would enjoy if the Resale Restrictions did not exist. (2)Absent the provisions of the Inclusionary Ordinance and the provisions of the Resale Restrictions, the Property could not be made available to Moderate Income Households at the Affordable Housing Cost, including Trustor. (3)Trustor understands all of the provisions of the Resale Restrictions. In recognition of the acknowledgments and agreements stated in this Section 12, Trustor accepts and agrees to the provisions of the Resale Restrictions with the understanding that upon the transfer of the Property, the Resale Restrictions will expire on _____ , 20_, and will remain in full force and effect as to the Property until such expiration date. 13.Non-Discrimination. Trustor Initials (a)Trustor covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the said property, nor shall Trustor itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. (b)Trustor and its successors and assigns, shall refrain from restricting the rental or lease (if permitted by Trustor) or sale of the Property on the basis of race, color, religion, sex, marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (1)In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (2)In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under 23-12898/310838 9 107 or through him or her, and this lease is made and accepted upon and subject to the following conditions: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under to through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." (3)In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, religion, sex, sexual orientation, creed, ancestry, national or ethnic origin, age, family or marital status, handicap or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees of the premises." ( c)Nothing in this Section 13 shall be construed to authorize the rental or lease of the Property if such rental or lease is not otherwise permitted. (d)The covenants in this paragraph shall run with the land in perpetuity. 14.No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Deed of Trust shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest. 15.Trustor has made certain representations and disclosures as a requirement under the Resale Restrictions in order to induce Beneficiary to approve the sale of the Property to Trustor. In the event that Trustor has made any material misrepresentation or failed to disclose any material fact regarding said transaction, Beneficiary at its option and without notice, shall have the right to declare a material breach of the Resale Restrictions and the Note. Beneficiary may make a written declaration of default and demand for sale as to paragraph No. 17 herein set forth. Trustee, upon presentation to it of an affidavit signed by Beneficiary setting forth facts showing a default by Trustor under this paragraph, is authorized to accept as true and conclusive all facts and statements therein, and to act thereon hereunder. 16.All covenants without regard to technical classification or designation shall be binding for the benefit of the Beneficiary and such covenants shall run in favor of the Beneficiary for the entire period during which some covenants shall be in force and effect, without regard to whether the Beneficiary is or remains an owner of any land or interest therein to which such right 23-12898/310838 10 108 to exercise all the rights and remedies and to maintain any action at law or suits in equity or other proper legal proceedings to enforce and to cure such breach to which it or any other beneficiaries of those covenants against discrimination which may be enforced at law or in equity at any time in perpetuity. 17.Upon default by Trustor in the obligations of the City Note, in the performance of any obligation under this Deed of Trust, the Resale Restrictions, or under the terms of any First Lender's Deed of Trust which is or appears to be prior or superior to this Deed of Trust, Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustee of a written declaration of default and demand for sale and a written notice of default and election to sell the Property. Default in the payment of any indebtedness secured by this Deed of Trust, in the obligation of the Note, or in the performance of any agreement under this Deed of Trust constitutes a default only under this Deed of Trust and the Note and does not constitute a default under the First Deed of Trust. Trustee shall cause the notice of default to be recorded. Beneficiary also shall deposit with Trustee this Deed of Trust, the Note, and all documents evidencing any additional expenditures secured by this Deed of Trust. After the lapse of such time as then may be required by law following recordation of such notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in such notice of sale, whether as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder qualified under said Resale Restrictions and this Deed of Trust in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its Deed conveying the Property so sold, but without any covenant or warranty, express or implied. The recital in such Deed of any matters of fact shall be conclusive of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale. Trustee may also sell at any such sale and as part thereof any shares of corporate stock securing the obligations secured hereby, and Trustor waives demand and notice of such sale. (Beneficiary at its option may also foreclose on such shares by independent pledge sale, and Trustor waives demand and notice of such sale.) After deducting all costs, fees and expenses of Trustee, and of this Trust, including cost of evidence of title in connection with this sale, Trustee shall apply the proceeds of sale to payment, first; all sums expended under the terms hereof, not then repaid, with accrued interest at the rate then payable under the First Lender Deed of Trust secured hereby, and then of all other sums secured hereby, and, if there are any proceeds remaining, shall distribute them to the person or persons legally entitled thereto. 18.Trustor shall keep the Property in good condition and repair; to allow Beneficiary or its representatives to enter and inspect the Property at all reasonable times and access thereto, shall be permitted for that purpose; not to remove or demolish any building thereon; not to make alterations thereto without the consent of the Beneficiary; to suffer or permit no change in the general nature of the occupancy of the Property without Beneficiary's written consent; to complete or restore promptly and in good workmanlike manner any building which may be constructed, damaged or destroyed thereon, including, without restricting the generality of the foregoing, damage from termites and dry-rot; to pay when due all claims for labor performed 23-12898/31083 8 11 109 and materials furnished in connection with the Property and not to permit any mechanic's lien against the Property; to comply with all laws affecting the Property or requiring any alterations or improvements to be made thereon; not to initiate or acquiesce in any zoning reclassification without Beneficiary's written consent; not to commit or permit waste thereon; not to commit, suffer or permit any act upon the Property in violation of the law; to paint, cultivate, irrigate, fertilize, fumigate, prune, and do all other acts that from the character or use of the Property may be reasonably necessary; and to promptly pay all amounts due others upon agreements of lease or conditional sale of all fixtures, furnishings and equipment located thereon. 19.Truster shall provide, and maintain in force at all times with respect to the Property, fire and other types of insurance as may be required by Beneficiary. All of such insurance shall have a loss payable endorsement in favor of Beneficiary, shall be for a term and in form, content, amount and in such companies as may be satisfactory to Beneficiary, and the policies therefore shall be delivered to and remain in possession of Beneficiary as further security for the faithful performance of these trusts. At least thirty (30) days prior to the expiration of any such insurance policy, a policy or policies renewing or extending such expiring insurance shall be delivered to Beneficiary together with written evidence showing payment of the premium therefore and, in the event any such insurance policy and evidence of the payment of the premium therefore are not so delivered by Truster to Beneficiary, Truster by executing this Deed of Trust specifically requests Beneficiary to obtain such insurance and Beneficiary, without obligation to do so, without notice to or demand upon Truster and without releasing Truster from any obligation hereof, may obtain such insurance through or from any insurance agency or company acceptable to it, pay the premium thereof, and may add the amount thereof to the indebtedness secured hereby, which amount shall bear a like rate of interest. Beneficiary may furnish to any insurance agency or company, or any other person, any information contained in or extracted from any insurance policy delivered to Beneficiary pursuant hereto and any information concerning the loan secured hereby. Neither Trustee nor Beneficiary shall be responsible for such insurance or for the collection of any insurance monies, or for any insolvency of any insurer or insurance underwriter. In case of insurance loss, Beneficiary is hereby authorized either (a) to settle and adjust any claim under the insurance policies provided for in this document without the consent of the Truster, or (b) to allow Truster to agree with the insurance company or companies on the amount to be paid upon the loss. In either case, the Beneficiary is authorized to collect and make receipt of any such insurance money. If Truster is obligated to restore or replace the damaged or destroyed buildings or improvements under the terms of any lease or leases which are or may be prior to the lien of this Deed of Trust and such damage or destruction does not result in cancellation or termination of such lease, such proceeds, after deducting therefrom any expenses incurred in the collection thereof, shall be used to reimburse the Truster for the cost of rebuilding or restoring the buildings or improvements on said premises. In all other cases, such insurance proceeds shall either be applied for the cost of the rebuilding or restoring the buildings or improvements on said premises. Such buildings and improvements shall be so restored or rebuilt as to be of at least equal value and substantially the same character as prior to the damage or destruction, and shall be in a condition satisfactory to Beneficiary. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. Any and all unexpired insurance shall inure to the benefit of, and pass to the purchaser of, the property conveyed at any Trustee sale held hereunder. 23-12898/310838 12 110 20.Trustor shall pay: (a) at least ten (10) days before delinquency, all general and special City and County taxes, and all assessments on appurtenant water stock, affecting the Property, (b) when done, all special assessments for public improvements, without permitting any improvement bond to issue for any special assessment, ( c) when done, all encumbrances, charges and lines, with interest, on the Property, or any part thereof, which are or appears to be prior to superior hereto, ( d) if the security of this Deed of Trust is leasehold estate, to make any payment or do any act required of the Lessee or its successor in interest under the terms of the instrument or instruments creating said leasehold, (e) all costs, fees and expenses of this trust, (f) for any statement regarding the obligation secured hereby any amount demanded by Beneficiary not to exceed the maximum allowed by law thereof at the time when such request is made, (g) such other charges for services rendered by Beneficiary and furnished at Trustor's request or that of any successor in interest to Trustor as the Beneficiary may deem reasonable. 21.Should Trustor fail to make any payment or do any act as provided in this Deed of Trust, the Beneficiary or Trustee, but without obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may (a) make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon the Property for such purposes, (b) commence, appear in, or defend any action or proceeding purporting to affect the security hereof or the property covered by this Deed of Trust, or the rights or powers of Beneficiary or Trustee, (c) pay, purchase, contest or compromise any encumbrance, charge or lien, which in the judgment of either is or appears to be prior or superior hereto, and ( d) in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees. Trustor agrees to repay any amount so expended on demand of Beneficiary, and any amount so expended may be added by Beneficiary to the indebtedness secured hereby and shall bear a like rate of interest. 22.Trustor shall appear in and defend any action or proceeding purporting to affect the security hereof or the Property which is covered by this Deed of Trust, or the rights or powers of Beneficiary or Trustee, and whether or not Trustor so appears or defends, to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear by virtue of being made a party defendant or otherwise irrespective of whether the interest of Beneficiary or Trustee in the Property is directly questioned by such action, including any action for the condemnation or partition of said premises, and in any suit brought by Beneficiary to foreclose this Deed of Trust. 23.Trustor shall pay immediately and without demand, all sums expended under the terms of this Deed of Trust by Beneficiary or Trustee, with interest from the date of expenditure at the rate, which the principal obligation secured hereby bears at the time such payment is made, and the repayment of such sums shall be secured hereby. 24.Should Trustor or any successor in interest to Trustor in the Property drill or extract, or enter into a lease for drilling or extraction of oil, gas or other hydrocarbon substances or any mineral of any kind or character, or sell, convey, further encumber, or alienate the Property, or any party thereof, or any interest therein, or be divested of his title or any interest therein in any manner or way, whether voluntarily or involuntarily, Beneficiary shall have the 23-12898/310838 13 111 right, at its option, to declare any obligations secured hereby irrespective of the maturity date specified in any Note evidencing the same, immediately due and payable, and no waiver of this right shall be effective unless in writing. 25.Any award, settlement or damages for injury or damages to the Property, or in construction with the transaction financed by such loan, and any award of damages in connection with any condemnation for public use of or injury to the Property, or any part thereof, is hereby assigned and shall be paid to Beneficiary, who may apply or release such monies received by it in such manner and with the same effect as above provided for the disposition of proceeds of fire or other insurance. 26.By accepting payment of any sums secured by this Deed of Trust after its due date, or by making any payment, performing any act on behalf of Truster, that Truster was obligated hereunder, but failed, to make, or perform, or by adding any payment so made by Beneficiary to the indebtedness secured hereby, Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare a default for failure so to pay. 27.At any time, or from time to time, without liability of the Beneficiary or Trustee thereof, and without notice, upon written request of Beneficiary and presentation of this Deed of Trust and the Note secured hereby for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, or the lien of the Deed of Trust upon the remainder of the Property for the full amount of the indebtedness then or thereafter secured hereby, or the rights or powers of Beneficiary or the Trustee with respect to the remainder of the Property, Trustee may: (a) reconvey any part of the Property, (b) consent to the making of any map or plat thereof, (c) join in granting any easement thereon, (d) join in any agreement subordinating the lien or charge hereof. 28.The lien hereof shall remain in full force and effect during any postponement or extension of time of payment of the indebtedness secured hereby, or any part thereof. 29.As additional security, Truster irrevocably assigns to Beneficiary the rents, issues, and profits of the Property for the purposes and upon the terms and conditions set forth below. This assignment shall not impose upon Beneficiary any duty to produce rents from the property affected by this Deed of Trust, or cause Beneficiary to be (a) "mortgages in possession" for any purpose; (b) responsible for performing any of the obligations of the lessor under any lease; or ( c) responsible for any waste committed by lessees or any other parties, for any dangerous or defective condition of the property affected by this Deed of Trust, or for any negligence in the management, upkeep, or control of such rights to rents, issues and profits is not contingent upon, and may be exercised without possession of, the property affected by this Deed of Trust. Beneficiary confers upon Truster a license ("License") to collect and retain the rents, issues and profits of the property affected by this Deed of Trust as they become due and payable, until the occurrence of a default hereunder. Upon such default, the License shall be automatically revoked and Beneficiary may collect and retain the rents, issues and profits without notice and 23-12898/310838 14 112 without taking possessions of the property affected by this Deed of Trust. This right to collect rents, issues and profits shall not grant to Beneficiary or Trustee the right to possession, except as otherwise provided herein; and neither said right, nor termination of the License, shall impose upon Beneficiary or Trustee the duty to produce rents, issues or profits or maintain all or any part of the Property affected by this Trust Deed. If Trustor shall default as aforesaid, Trustor' s right to collect any such money shall cease and Beneficiary shall have the right, with or without taking possession of the property affected hereby, to collect all rents, issues, royalties and profits and shall be authorized to, and may, without notice and irrespective of whether declaration of default has been delivered to Trustee and without regard to the adequacy of the security for the indebtedness secured hereby, either personally or by attorney or agent without bringing any action or proceeding, or by receiver to be appointed by the Court, enter into possession and hold, occupy, possess and enjoy the Property, make, cancel, enforce and modify leases, obtain and eject tenants, and set and modify rents and terms of rents, and to sue, and to take, receive and collect all or any part of the said rents, issues, and profits of the property affected hereby, and after paying such costs of maintenance, operation of the Property, and of collection including reasonable attorneys' fees, as in its judgment it may deem proper, to apply the balance upon any indebtedness then secured hereby, the rents, issues, royalties and profits of the Property being hereby assigned to Beneficiary for said purposes. The acceptance of such rents, issues, royalties and profits shall not constitute a waiver of any other right, which Trustee or Beneficiary may enjoy under this Deed of Trust or under the laws of California. Failure of or discontinuance by Beneficiary at any time, or from time to time, to collect any such rents, issues, royalties or profits shall not in any manner affect the subsequent enforcement by Beneficiary of the right, power and authority to collect the same. The receipt and application by said Beneficiary of all such rents, issues, royalties and profits pursuant hereto, after execution and delivery of declaration of default and demand for sale as hereinafter provided, or during the pendency of Trustee's sale proceedings hereunder, shall not cure such breach or default nor affect sale proceedings, or any sale made pursuant thereto, but such rents, issues, royalties and profits, less all costs of operation, maintenance, collection and reasonable attorneys' fees, when received by Beneficiary, shall be applied in reduction of the indebtedness secured hereby, from time to time, in such order as Beneficiary may determine. Nothing contained herein, nor the exercise of the right by Beneficiary to collect, shall be, or be construed to be, an affirmation by Beneficiary of any tenancy, lease or option, nor an assumption of liability under, nor subordination of the lien or charge of this Deed of Trust to, any such tenancy, lease or option. 30.If the security of this Deed of Trust is a leasehold estate, the Trustor agrees that: (a) the term "Lease" as used herein shall mean the lease creating the "leasehold estate"' (b) Trustor shall not amend, change or modify his leasehold interest, or the Lease, or agree to do so, without the written consent of the Beneficiary; ( c) Trustor will promptly advise Beneficiary regarding any notice, request or demand received by him from the lessor under the Lease and promptly furnish Beneficiary with a copy of any such notice, request or demand; ( d) as long as any of the indebtedness secured hereby shall remain unpaid, unless the Beneficiary shall otherwise consent thereto in writing, the leasehold estate shall not merge with the fee title but shall always be kept separate and distinct, notwithstanding the union of said estates in any party; ( e) Trustor agrees that it will promptly, strictly, and faithfully perform, fulfill, and comply with all covenants, agreements, terms, conditions and provisions under any lease affecting the premises and to neither do anything, nor to permit anything to be done which may cause modification or termination of 23-12898/310838 15 113 any such lease or of the obligations of any lessee or person claiming through such lease or the rents provided for therein or the interest of the lessor or the Beneficiary therein or thereunder. Trustor further agrees he will not execute a Deed of Trust or mortgage, which may be or become superior to any leasehold estate that is security for this Deed of Trust. In the event of a violation of any of the covenants set forth in this paragraph, Beneficiary shall have the right, at its option, to declare all sums secured hereby immediately due and payable. Consent to or waiver of one of said violations shall not be deemed to be a consent to or waiver of any other violation. If the security for this Deed of Trust is a leasehold estate, the term "property" as used in this Deed of Trust shall be deemed to mean the leasehold estate whenever the context so requires for the protection of the Beneficiary. 31.Trustor waives, to the fullest extent permissible by law, the right to plead any statute of limitations as a defense to any demand secured hereby. 32.Beneficiary may, from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed and acknowledged by Beneficiary and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of property substitution of such successor Trustee or Trustees, who shall, without conveyances from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties, including but not limited to the power to reconvey the whole or any part of the property covered by this Deed of Trust. Such instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded. If notice of default shall have been recorded, this power of substitution cannot be exercised until after the costs, fees and expenses of the then acting Trustee shall have been paid to such Trustee, who shall endorse receipt thereof upon such instrument. The procedures herein provided for substitution of Trustee shall not be exclusive of other provisions for substitution provided by law. 33.This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term "Beneficiary" shall mean the owner and holder, including pledgee, of the Note secured hereby, whether or not names as Beneficiary herein. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 34.That in the event of a demand for, and the preparation and delivery of a written statement regarding the obligations secured by this Deed of Trust pursuant to Sections 2943 and 2954 of the Civil Code of California, Beneficiary shall be entitled to make a reasonable charge, not exceeding the maximum amount which is permitted by law at the time the statement is furnished. Beneficiary may also charge Trustor a reasonable fee for any other services rendered to Trustor or rendered in Trustor' s behalf in connection with the Property of this Deed of Trust, including changing Beneficiary's records, pertaining to this Deed of Trust in connection with the transfer of the Property, or releasing an existing policy of fire insurance or other casualty insurance held by Beneficiary and replacing the same with another such policy. 23-12898/310838 16 114 35.Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 36.Any notice, which any party hereto may desire or be required to give to the other party, shall be in writing. The mailing thereof must be certified mail addressed to the Trustor at his address hereinabove set forth or to the Beneficiary at his office or at such other place as such parties hereto may designate in writing. THE UNDERSIGNED TRUSTOR REQUESTS that a copy of any notice of default and of any notice of sale hereunder be mailed to him at his address hereinbefore set forth. Dated: -------- Dated: -------- Dated: ------- 23-12898/310838 17 TRUSTOR By: _____________ _ HOUSING AUTHORITY OF THE CITY OF HUNTINGTON BEACH By: _____________ _ Deputy Director of Community Development CITY OF HUNTINGTON BEACH By: ___________ _ Deputy Director of Community Development APPROVED AS TO FORM: By: ___________ _ City Attorney 115 23-12898/310838 EXHIBIT A Legal Description 18 116 EXHIBIT "D" TO AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH (Affordable Housing Agreement Release Agreement) 23-12898/310834 -17- 117 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Be ach, CA 92648 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) This Release of Affordable Housfog Agreement is recorded at the request and for the benefit of the City of Huntington Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. RELEASE OF AFFORDABLE HOUSING AGREEMENT This RELEASE (the "Release") is being entered into by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation (the "City"), and -------------�a ___________ (the "Owner"). City and Owner are hereinafter sometimes referred to collectively as the "Parties" and individually as a "Party." RECITALS: A.City is a municip al corporation and charter city organized and existing pursuant to the Constitution and l aws of the State of California. B.Owner and/or its successors and assigns is the owner in fee of that certain re al property located at 72 2 5 Edinger A venue, Huntington Be ach, and more particularly described in the legal description attached hereto as Exhibit "A" (the "Property"). C.On or about ____ , 2024, Owner and City entered into that certain Affordable Housing Agreement (the "Affordable Housing Agreement") relating to the Property, recorded on _____ , 2024, as Instrument No. _____ of the Official Records for Orange County, California. Pursuant to the Agreement, Owner has developed the Property as a one hundred and Twenty-nine (129) unit residential community to be subdivided as a condominium development ("Project"). Owner will build the Project in multiple construction phases and sell or rent individual units to individual homebuyers. Currently, as set forth in the Project approvals, Owner will sell the individual units in accordance with the terms and conditions of the Afford able Housing Agreement. If Owner later desires to rent all of the units, including market rate and affordable, Owner may make this request to City and an amendment to the Afford able Housing Agreement will be prepared to incorporate all of the additional required rental provisions. D.Further, the Owner agreed to include in the Project thirteen (13) units that will be sold or rented at an Affordable Housing Cost to Moderate Income Households if ownership units and Low Income Households if rental units, consisting of two (2) two-bedroom units, three (3) three-bedroom units, and eight (8) four-bedroom units, with the remaining units to be sold or 23-12898/310839 -1-118 rented at market prices. E.Pursuant to the Affordable Housing Agreement, when the Owner has sold all of the Affordable Units on the Property pursuant to the terms and conditions of the Affordable Housing Agreement, Owner and City may execute and record or cause to be executed and recorded for the benefit of Owner and/or its successors and assigns this Release, whereupon the Property would be released from the terms and conditions of the Affordable Housing Agreement. COVENANTS: Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, Owner and City agree as follows: 1.From and after the date that this Release is recorded, the Property shall be released from, not be burdened by any of the provisions of the Affordable Housing Agreement. 2.Nothing in this Release terminates or releases, or shall be deemed or construed to terminate or release, the Affordable Housing Covenant recorded against each Affordable Unit owned in fee by a Qualified Purchaser or said Qualified Purchaser's successor m interest or assignee. 3.This Release shall not constitute evidence of compliance with or satisfaction of any obligation of Owner to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to fmance the construction or operation of work on Property, or any part thereof. 4.No later than ten (10) days after receipt by Owner of a conformed copy of the executed Release from the Orange County Recorder's Office, Owner shall deliver a copy of said conformed copy to City at the address identified in the Affordable Housing Agreement for delivery of notices. IN WITNESS WHEREOF, City has executed this Release as of this __ day of_� 20 CITY OF HUNTINGTON BEACH, a California municipal corporation By: ______________ _ Its: --------------- ATTEST: City Clerk 23-12898/310839 -2-119 APPROVED AS TO FORM: OFFICE OF HUNTINGTON BEACH CITY ATTORNEY MICHAELE. GATES, City Attorney 23-12898/310839 Dated: ____ , 20_ -3-120 EXHIBIT "E" TO AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH (Unit Release Agreement) 23-12898/310834 -18- 121 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: Director of Community Development (Space Above For Recorder's Use) This Unit Release Agreement is recorded at the request and for the benefit of the City of Huntington Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. UNIT RELEASE AGREEMENT This Unit Release Agreement ("Release") is entered into as of _____ ., 202_, by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation (the "City"), and _____________ ., a____________ (the "Owner") (City and Owner are hereinafter referred to collectively as the "Parties"). RECITALS A.City and Owner have entered into an Affordable Housing Agreement for 7225 Edinger Avenue, Huntington Beach, dated ______ ., 2024 (the "Agreement"), which was recorded in the official records of Orange County on ________ ., 2024, as Document No. B.The Agreement requires Owner to develop a one hundred and twenty-nine (129) unit condominium residential community (the "Project") on certain real property located at 7225 Edinger Avenue, Huntington Beach, California, as described in the Agreement (the "Property"). The Agreement requires that thirteen (13) condominium units in the Project (the "Affordable Units") be sold or rented at an Affordable Housing Cost to Moderate Income Households (as that term is defined in the Agreement). The other one hundred and sixteen (116) condominium units in the Project may be sold or rented at a market rate purchase price without any maximum income requirements as to the purchasers (the "Market Rate Units"). C.The Agreement provides that City will sign and record a release of the Agreement as to the Market Rate Units, at the request of Owner. D.In order to facilitate the sale of completed Market Rate Units to homebuyers, Owner has requested that the Agreement be released with respect to the following Market Rate Unit(s): ____________ (the "Released Parcel(s)"). E.The Parties desire to memorialize the release of the Agreement from the Released Parcel(s). 23-12898/310834 -19- 122 NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Owner agree as follows: 1.Release. From and after the date that this Release is recorded, the Agreement is hereby released as to the Released Parcel(s), and no portion of the Released Parcel(s) shall thereafter be bound or burdened by the Agreement. 2.No Release of Remainder of Property. Nothing in this Release terminates or releases, or shall be deemed or construed to terminate or release, any portion of the Property or Project other than the Released Parcel from the Agreement, which shall remain in effect in accordance with its terms. IN WITNESS WHEREOF, City and Owner have executed this Release as of the date set forth in the preamble above. OWNER: By: ______________ _ Its: By: ______________ _ Its: ATTEST: City Clerk 23-12898/310834 CITY: CITY OF HUNTINGTON BEACH, a California municipal corporation By: ______________ _ City Manager APPROVED AS TO FORM: City Attorney -20- 123 23-12898/310839 ATTACHMENT 1 TO UNIT RELEASE LEGAL DESCRIPTION OF RELEASED UNIT(S) -4-124 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 ) ) ss. COUNTY OF ORANGE ) On ____________ �before me,, __________ _ _____________ _, Notary Public, personally appeared __ _ ______________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public 23-12898/310839 -5-125 EXHIBIT "F" TO AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH (Assignment Agreement) 23-12898/310834 -21- 126 RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 APN: _______ _ This Assignment and Assumption of Affordable Housing Agreement is recorded at the request and for the benefit of the City of Huntington Beach and is exempt from the payment of a recording fee pursuant to Government Code Sections 6103 and 27383. (Space Above For Recorder's Use) AGREEMENT FOR ASSIGNMENT AND ASSUMPTION OF AFFORDABLE HOUSING AGREEMENT FOR 7225 EDINGER A VENUE, HUNTINGTON BEACH This Agreement for Assignment and Assumption of Affordable Housing Agreement for 7225 Edinger Avenue, Huntington Beach (this "Assignment Agreement"), dated as of _____ , 20_ (the "Effective Date"), is entered into by and between _______ . a _____ ("Assignor"), and _______ ., a _____ ("Assignee") with reference to the facts set forth in the Recitals below. Assignor and Assignor are hereinafter sometimes referred to individually as a "Party" and collectively as the "Parties." All capitalized terms used herein, and not otherwise defined herein, shall have the meanings set forth in the Affordable Housing Agreement (as defined below). RECITALS A.Assignor and the City of Huntington Beach ("City") are parties to that certain "Affordable Housing Agreement for 7225 Edinger Avenue," dated as of _____ 202_, which was recorded as Instrument No. ______ in the Official Records of Orange County, California (the "Affordable Housing Agreement"), with respect to the real property located within City and more particularly described therein (the "Property"). B.Assignor desires to Transfer the Property to Assignee pursuant to separate agreement and, in connection therewith, Assignor desires to assign to Assignee all of Assignor's rights and obligations under the Affordable Housing Agreement, and Assignee desires to accept such assignment and assume all obligations of Assignor under the Affordable Housing Agreement, pursuant to the provisions of this Assignment Agreement. C.Pursuant to Section 6.1 of the Affordable Housing Agreement, the Transfer of the Property from Assignor to Assignor is subject to City's prior written approval of such Transfer 1 127 and this Assignment Agreement. Prior to City's approval of this Assignment Agreement, evidenced by the approval and signature below on behalf of City, Assignor and/or Assignee provided to City, and City reviewed, all required information regarding the proposed Transfer and Assignee. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein, and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: AGREEMENT 1.Assignment. Assignor hereby assigns, transfers, and conveys to Assignee all of Assignor's right, title, and interest in, to and under the Affordable Housing Agreement effective as of the Effective Date. 2.Assumption. Assignee hereby accepts the assignment of all of Assignor's right, title, and interest in, to and under the Affordable Housing Agreement effective as of the Effective Date, and agrees to assume and perform all of Assignor's duties and obligations under the Affordable Housing Agreement effective as of the Effective Date. 3.Release and Indemnity. Assignee hereby releases and Assignee shall indemnify, defend (with counsel reasonably acceptable to Assignor) and hold harmless Assignor from and against any and all claims, demands, actions, causes of action, liabilities, losses, damages, penalties, costs and expenses (including attorneys' fees), of any nature whatsoever, directly or indirectly relating to, resulting from, or arising out of the Affordable Housing Agreement. 4. Transfer. This Assignment Agreement reflects and effectuates a Transfer contemplated by, and is executed in accordance with, the Affordable Housing Agreement. Nothing contained in this Assignment Agreement shall be treated as superseding, modifying, or amending any of the terms of the Affordable Housing Agreement or any rights or obligations of City or Assignee under the Affordable Housing Agreement. In the event of any conflict between this Assignment Agreement and the Affordable Housing Agreement, the terms of the Affordable Housing Agreement shall prevail. 4.Governing Law. This Assignment Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California without regard to conflict of law principles. 5.Jurisdiction and Venue. Any action at law or in equity arising under this Assignment Agreement or brought. by a Party for the purpose of enforcing, construing or determining the validity of any provision of this Assignment Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or any other court in that county, and the Parties waive all provisions of law providing for the filing, removal or change of venue to any other court. 6.Attorneys' Fees and Costs. The prevailing Party in any action or proceeding arising out of or in connection with this Assignment Agreement shall be entitled to recover from the other Party its cost and expenses, including reasonable attorneys' fees, incurred in such action or proceeding. 2 #231075204 vl 128 7.Counterparts. This Assignment Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment Agreement as of the Effective Date. ASSIGNOR: a ____________ _ By:----------­Name: ------------Title: ___________ _ #231075204 vl 3 ASSIGNEE: a ____________ _ By: -----------­Name: -----------Title: __________ _ ASSIGNMENT AGREEMENT AND PROPERTY TRANSFER HEREBY APPROVED BY CITY: CITY OF HUNTINGTON BEACH a California municipal corporation By:-------------Name: __________ _ Title: ___________ _ By: ____________ _ Name: -----------Title: ___________ _ ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 129 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 this __ day of ______ , 201_, before me, __________ _, Notary Public, personally appeared ______ who provided to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: _________ (Seal) #231075204 vl 130 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 this __ day of ______ , 201_, before me, ___________ , Notary Public, personally appeared ______ who provided to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: __________ (Seal) #231075204_vl 131 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 this __ day of ______ , 201_, before me, ___________ , Notary Public, personally appeared ______ who provided to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/ she/they executed the same in his/her/their authorized capacity(ies ), and that by his/her/their signature( s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: __________ (Seal) #231075204 vl 132 Affordable Housing Agreement – 7225 Edinger Avenue City Council June 18, 2024 133 .-...::::-__ _ - --------------.-= ------ ~ Background •129-unit ownership townhome project located at 7225 Edinger Avenue •Project is located within the Beach and Edinger Corridors Specific Plan (BECSP) and conforms to the provisions outlined in the BECSP. •On March 28, 2023, Planning Commission approved the Project (Tentative Tract Map No. 19174 and CUP No. 22-021). •129 total units on 5.6 acres consisting of 16 three-story buildings. 134 Background (cont.) •13 affordable units (2 two-bedroom, 3 three-bedroom, and 8 four-bedroom units) •All 13 ownership affordable units will be available to “moderate income” households (not to exceed 120% of area median income) •45-year affordability covenant •Housing Authority oversees and monitors the City’s existing affordable housing inventory and is therefore party to certain underlying documents within the Agreement 135 7225 Edinger Avenue Project 136 STREET VIEW A P.1 7225 Edinger Avenue Project 137 PASEOSVIEW 7225 Edinger Avenue Project 138 DRIVE ISLE VIEW AP .3 Project Approvals and Status ▪Per State Density Bonus Law, project is eligible for waivers, concessions, and reduced parking standards prescribed by state law. ▪Project was granted one concession and state law parking standards in conjunction with the CUP and Tentative Tract Map approvals; zero waivers •Concession: reduced space between buildings •14 feet, 9 inches between residential buildings in lieu of required 20 feet; 10 feet of separation to a common area building. •Parking: project subject to parking ratios prescribed in State law •State Law parking requirement: 277 spaces •Project parking spaces proposed: 314 spaces, including 2-car garage for each unit ▪Status: project is in grading plan check and has applied for demo permits; currently under review by the City 139 Recommendations •Approve the Affordable Housing Agreement by and between the City and Developer for the development of 13 affordable ownership units at 7225 Edinger Avenue; and, •Authorize the City Manager or their designee to implement and execute the Affordable Housing Agreement for the Project, including all necessary related documents; and, •Authorize the Housing Authority Executive Director or their designee to execute all necessary implementing agreements and related documents. 140 Questions? 141 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-434 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Eric G. Parra, Interim City Manager VIA:Eric Parra, Chief of Police PREPARED BY:Lt. Thoby Archer and Exec. Asst. Ingrid Ono Subject: Approve and authorize execution of a one-year agreement with the Riverside County Sheriff’s Department to participate in Operation Stonegarden Statement of Issue: The Huntington Beach Police Department (HBPD) received a grant from the Department of Homeland Security, which is administered via the San Diego Sheriff’s Department to detect, prevent, and investigate incidents of human trafficking and the trafficking of illicit narcotics. This fiscal year, the HBPD will continue to partner with the Riverside County Sheriff’s Department and the Department of Homeland Security to provide the same enforcement through Operation Stonegarden. The project period for this grant began on September 1, 2023, and ends on May 31, 2026. Financial Impact: The proposed agreement would provide the HBPD with $199,000 in grant funding to fund extra patrol shifts to accomplish the goals outlined in the mission of Operation Stonegarden. The agreement would also provide $26,000 in reimbursable costs for airframe time when a HBPD helicopter is utilized. Recommended Action: A) Approve and authorize Police Chief Eric G. Parra to execute the “Agreement for Fiscal Year 2023 Operation Stonegarden (OPSG);” and, B) Appropriate $225,000 in grant funding for Operation Stonegarden. Alternative Action(s): City of Huntington Beach Printed on 6/12/2024Page 1 of 2 powered by Legistar™142 File #:24-434 MEETING DATE:6/18/2024 Do not approve the recommended action and direct staff accordingly. Analysis: The Riverside County Sheriff’s Department applied for and received grant funds from the Department of Homeland Security to participate in Operation Stonegarden (OPSG). The funds are distributed by the California Governor’s Office of Emergency Services (CALOES) to local agencies to fund their participation in OPSG. The HBPD’s role in OPSG would be to detect, prevent, and investigate incidents of human trafficking and the trafficking of illicit narcotics. At no time will the HBPD violate SB 54 or assist in any immigration operations with Federal entities. This will be the fourth year the HBPD will have participated in these operations. Environmental Status: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Strategic Plan Goal: Goal 8 - Public Safety, Strategy A - Community-wide comprehensive risk reduction program to optimize public safety's emergency response and reduce the number of calls. Attachment(s): 1. Agreement FY2023 OPSG City of Huntington Beach Printed on 6/12/2024Page 2 of 2 powered by Legistar™143 144 AGREEMENT FOR FISCAL YEAR 2023 OPERATION STONEGARDEN (OPSG) 1. PARTIES TO THE AGREEMENT This Agreement is between the COUNTY OF RIVERSIDE ("COUNTY"), the COUNTY OF LOS ANGELES ("LAC"), the CITY OF COSTA MESA, CITY OF HAWTHORNE, CITY OF HUNTINGTON BEACH, CITY OF LA HABRA, CITY OF LAGUNA BEACH, CITY OF NEWPORT BEACH, and CITY OF SEAL BEACH (collectively the "CITIES"), each a "PARTY" and collectively the "PARTIES", for support of the Operation Stonegarden ("OPSG") program. 1.1 Party Departments or Agencies Participating In The Agreement 1.1.1 For the COUNTY, participating agency is the Sheriff's Office ("SHERIFF"). 1.1.2 For the CITIES, participating agencies are their respective police department. 1.1.3 For LAC, participating agency is their respective Sheriff's department. 2. RECITALS 2.1 WHEREAS, COUNTY through SHERIFF applied for, and was awarded grant funds from the U.S. Department of Homeland Security ("DHS") passed through the California Governor's Office of Emergency Services ("Cal OES"), under the Fiscal Year (FY) 2023 Operation Stonegarden (OPSG) grant program. As an applicant for the San Diego Border Patrol Sector, SHERIFF shall be the lead agency to manage the OPSG program. 2.2 WHEREAS, funds shall be used to support the OPSG program to enhance law enforcement preparedness and operational readiness along the land and water borders of the United States. 2.3 WHEREAS, Government Code §55632 authorizes COUNTY and PARTIES to contract for provision of joint law enforcement services. 2.4 WHEREAS, PARTIES desire to enter into an agreement with provisions concerning the nature and extent of OPSG collaboration, services rendered, and compensation. 2.5 WHEREAS, COUNTY, by action of the Board of Supervisors Agenda Item 3.30 on January 23, 2024, approved the application, appropriation, and use of FY 2023 OPSG funds to reimburse PARTIES for program related overtime and fringe benefits; equipment purchases and maintenance costs; fuel; mileage; flight; and management and administration costs incurred not to exceed the amounts described in Exhibit A -FY 2023 OPSG Budget 1 145 Worksheet in paragraph 2.9 (a) below, during the period ofperfotmance (POP) September I, 2023 through May 31, 2026 but, the operational project period for PAR TIES shall be the date ofFEMA's approval, March 25, 2024 through February 28, 2026. 2.6 WHEREAS, PARTIES shall retain documentation supporting all expenditures reimbursed from OPSG grant funds, ensure all expenditures are allowable under grant requirements, adhere to the federal procurement standards found in Title 2 of the Code of Federal Regulations, Part 200, Subpart D, Section §200.317-200.327, and comply with the Single Audit Act Amendments of 1996 and Title 2 of the Code of Federal Regulations, Part 200, Subpart F -Audit Requirements regarding organization-wide financial and compliance audit reports if $750,000 or more of OPSG federal funds are expended in a fiscal year. 2.6.1 Documentation shall be retained in accordance with the FEMA Preparedness Grants Manual and other OPSG grant requirements and shall be available for audit and inspection. 2.7 WHEREAS, PARTIES agree that this Agreement does not provide Federal authority to PARTIES to enforce immigration laws (Title 8 USC). 2.8 WHEREAS, PARTIES acknowledge the following information for the OPSG grant program: (a) Federal Grantor Agency: U. S. Department of Homeland Security (DHS) (b) Administrative Authority: Federal Emergency Management Agency (FEMA) (c) Operational Oversight: U.S. Customs and Border Protection (CBP) ( d) State Administrative Agency (SAA) or Pass-Through Agency: California Governor's Office of Emergency Services (Cal OES) (e) Program Title: Homeland Security Grant Program (HSGP) Operation Stonegarden (OPSG) (t) Grant Identification Number: 2023-0042 (g) Federal CFDA Number: 97.067 2.9 WHEREAS, PARTIES agree and shall utilize and adhere to the following Exhibits attached hereto and/or available using the referenced link: (a) Exhibit A -FY 2023 OPSG Budget Worksheet (b) Exhibit B -FY 2023 OPSG Standard Assurances (c) Exhibit C -FY 2023 OPSG Byrd Anti-Lobbying Certification Form (d) Exhibit D -FY 2023 OPSG Operations Order (CONFIDENTIAL, for Official Use Only/Law Enforcement Sensitive) (e) Exhibit E -Title 2 of the Code of Federal Regulations Part 200, (t) Exhibit F -Federal Contract Provisions (language to be developed and incorporated within a contract) (g) Exhibit G -FY 2023 Homeland Security Grant Program {HSGP) Notice of Funding Opportunity {NOFO) 2 146 (h) Exhibit H -FY 2023 Homeland Security Grant Program (HSGP) California Supplement to the Federal NOFO (i) Exhibit I -FEMA Preparedness Grants Manual Nothing in the Exhibits above shall limit the requirements of this Agreement. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PARTIES jointly intend that COUNTY will reimburse, and PARTIES will provide, a level of OPSG services as set forth in this Agreement. 3. PURPOSE AND INTENT The purpose of this Agreement is to satisfy the OPSG grant program proposal awarded by the DHS and passed through to the Cal OES, under the FY 2023 Operation Stonegarden grant program. 4. SCOPE OF SERVICES 4.1 Method of Service Delivery SHERIFF shall manage the OPSG grant program, oversee the funding allocation of the PARTIES, and be administratively responsible for coordination of PARTIES' obligations under this Agreement. The SHERIFF's OPSG grant program team will be staffed as described in paragraph 6. STANDARDS OF SERVICE: OBLIGATIONS OF THE PARTIES. 4,2 Overview of Basic Services PARTIES shall perform OPSG Operations ("Operations") by increasing law enforcement presence in each PARTY's designated jurisdiction and in coordination with other OPSG partner agencies to support the U. S. Customs and Border Protection (CBP) efforts to improve border security in the region. PARTIES will enforce local and state laws within their designated jurisdiction subject to the California Values Act (SB 54; Chapter 495) and shall not enforce or aid in the enforcement of immigration laws on behalf of U. S. Customs and Border Protection (CBP) and U. S. Border Patrol (BP). This Agreement does not provide Federal authority to PARTIES to enforce immigration laws (Title 8 USC). 5. TERM OF AGREEMENT The OPSG grant program period of performance (POP) is September I, 2023 through May 31, 2026, but the operational project period for PARTIES shall be the date of FEMA's approval, March 25, 2024 through February 28, 2026. 5.1 Initial Term 3 147 The term of this Agreement shall be retroactive to 12:01 a.m. on March 25, 2024 and shall continue in effect through and terminate at midnight on May 31, 2026; subject to the termination provision in paragraph 5.3. 5.2 Option to Extend Renewal or extension of the Agreement beyond May 31, 2026 shall be subject to remaining grant funds and to a time extension approved by Cal OES. Any PARTY that does not agree to renew shall terminate its participation at the end of the term of this Agreement. 5.3 Termination Subject to the applicable provisions of state law, each PARTY may terminate its participation in this Agreement upon ninety (90) days minimum written notice to the other PARTIES. 5.3.1 A PARTY may terminate its participation in this Agreement immediately upon written notice to the other PARTIES in the event it becomes ineligible to receive grant funds under this Agreement. 5.3.2 As the lead agency, SHERIFF, with approval from either FEMA, CBP, and/or Cal OES as needed, may require the termination ofa PARTY's participation ifit is determined that the PARTY has violated the provisions of this Agreement, including failure to provide the Anticipated Outcome set forth in section 6.3. 6. STANDARDS OF SERVICE: OBLIGATIONS OF THE PARTIES 6.1 Suspension and Debarment SHERIFF will request, and PARTIES shall provide a copy of the SAM.gov repo1i for their agency which shows their Active and Inactive Exclusions. Any PARTY with Active Exclusions at the onset of, or any time during, the te1m of this Agreement is not eligible to participate as set forth in Executive Orders 12549 and 12689, 2 CFR 200.214, and codified in 2 CFR Part 180, and shall terminate its participation in this Agreement as provided for in paragraph 5.3 Termination. 6.2 Byrd Anti-Lobbying Amendment PARTIES that receive an award greater than $100,000 shall certify to SHERIFF on the Byrd Anti-Lobbying Certification Form attached hereto as Exhibit C, that it will not and has not used federally appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each PARTY shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from agency to agency up to the recipient who in turn will forward the certifications to the federal awarding agency. 4 148 6.3 Anticipated Outcome The anticipated outcome of Operations to be performed by PARTIES under this Agreement is increased law enforcement presence in each PARTY's designated jurisdiction to support U. S. DHS and U. S. CBP efforts in the region to improve border security and reduce border related crime. The anticipated outcome will be reached by achieving the goals and accomplishing the missions set forth below by PARTIES and in Exhibit D -FY 2023 OPSG Operations Order. 6.3.1 PARTIES shall provide enhanced enforcement by increasing patrol presence in proximity to the border and/or routes of ingress from the border, including the water borders. In addition, PARTIES shall utilize their unique investigatory areas of expertise in operations. 6.3.2 Increase intelligence/information sharing among PARTIES, including but not limited to: (a) Conducting bi-monthly meetings with a minimum of one representative from each PARTY. (b) Increasing information sharing during operations. 6.3.3 Prior to Operations, PARTIES' Designated Operations Coordinator, in paragraph 6.4.3, shall submit an operational plan and schedule to the Integrated Planning Team (IPT) at least 72 hours prior to the operation. 6.3.3.1 The IPT is comprised of SHERIFF and CBP sworn personnel. 6.3.3.2 The role of the IPT is to provide support and guidance to the local, state, and federal law enforcement stakeholders within the grant. 6.3.4 Within 48 hours following the conclusion of each Operation: 6.3.4.1 Each PARTY shall complete a Daily Activity Report (DAR) form in Excel format, which will be submitted as supporting documentation for any reimbursement request. Infmmation entered in the Nanative section of the DAR form shall include statistical data and report from Field Interviews (Fis), Arrest Reports, and/or Citations. 6.3.4.2 PARTIES' Designated Operations Coordinator in paragraph 6.4.3, or designee, shall enter and submit the same DAR information directly into DHS's Homeland Security Information Network (HSIN). 6.3.4.3 PARTIES' Designated Operations Coordinator or designee shall ensure DAR information entered in HSIN is correct and shall make necessary corrections until it is processed for approval. 6.4 Personnel Qualifications and Assignment 5 149 6.4.1 Qualifications Each PARTY shall ensure that personnel assigned to perform Operations pursuant to this Agreement meet the minimum qualifications for their specific classification. 6.4.2 Management, Direction, and Supervision; Independent Contractors The hiring, firing, management, direction, and supervision of each PARTY's personnel, the standards of performance, the discipline of each P ARTY's personnel, and all other matters incident to the perfo1mance of such services, shall be performed by and be the responsibility of each PARTY in each PARTY's sole but reasonable judgment and in accord with the provisions of applicable labor agreements. Each PARTY shall be the appointing authority for all its personnel provided to OPSG by this Agreement. PARTIES shall have no liability for any direct payment of salary, wages, indemnity, or other compensation or benefit to any other PARTY's personnel. Each PARTY and its respective officers, agents, and employees are independent contractors and are not officers, agents, and employees of any other PARTY. Each PARTY's personnel are under the direct and exclusive supervision of that PARTY, and each PARTY assumes full responsibility for the performance of its own personnel in connection with this Agreement. No PARTY has the authority to bind any other PARTY. 6.4.3 Designated Operations Coordinators SHERIFF shall select a Designated Operations Coordinator, at the rank of Sheriffs Lieutenant or higher, who shall manage and direct OPSG operations. All other PAR TIES shall select a Designated Operations Coordinator for their respective agency under this Agreement. The Designated Operations Coordinator for each PARTY shall serve as their agency contact and shall implement, as needed, appropriate procedures governing the performance of all requirements under this Agreement and shall be responsible for meeting and conferring in good faith to address any disputes which may arise concerning implementation of this Agreement. 6.4.4 Staffing for Basic Services PAR TIES shall ensure that adequate numbers of their qualified respective personnel are always provided to Operations during the term of this Agreement to meet the Basic Services, Scope of Services, and Standards of Service commitments set forth herein. 6.4.5 Equipment and Supplies COUNTY will provide SHERIFF OPSG personnel with all supplies and/or prescribed safety gear, body armor, and/or standard issue equipment necessary to perform Operations. Similarly, all other PARTIES will provide their respective OPSG personnel with all supplies and/or prescribed safety gear, body armor, and/or standard 6 150 issue equipment necessary to perform Operations unless othe1wise specified in Exhibit D -FY 2023 OPSG Operations Order. 6.4.5.1 PARTIES are responsible for the procurement of their own equipment to be used in Operations. 6.4.5.2 PARTIES shall maintain an inventory list of all equipment purchased with OPSG funds and when practicable, equipment shall be labeled with: "Purchased with funds provided by the U. S. Department of Homeland Security". 7. COST OF SERVICES/CONSIDERATION 7.1 General 7.1.1 As full consideration for the satisfactory performance and completion by PAR TIES of Operations set forth in this Agreement, COUNTY shall reimburse PARTIES for personnel assigned to perform Operations on the basis of claims and submittals as set forth hereunder. Such payments by COUNTY are dependent on the continued availability of funds from the DHS passed through the Cal OES. 7.1.2 PARTIES agree that awarded funds identified as allowable costs, as set forth in Exhibit G -FY 2023 Homeland Security Grant Program Notice of Funding Opportunity (HSGP NOFO), shall be expended only for approved Operations operating expenses, and equipment as detailed in Exhibit A-FY 2023 OPSG Budget Worksheet, and that unallowable costs are not reimbursable as set forth in Exhibit G -FY 2023 HSGPNOFO. 7.1.3 No reimbursement shall be made to a PARTY during any period of time within which that PARTY is in default on filing any informational or financial reports required by SHERlFF. SHERIFF shall make any necessary adjustments to PARTY claims to correct for overpayments, underpayments, or disallowances. 7.2 Project Costs/Rate of Compensation SHERIFF shall reimburse PARTIES for overtime worked by personnel assigned to perform Operations and shall reimburse for costs approved in Exhibit D -FY 2023 OPSG Operations Order, based upon available funding and the actual costs incurred by PARTIES to provide Operations. 7.3 Method of Payment PARTIES shall submit to SHERIFF, accurate and complete reimbursement forms, labor reports, timesheets, DARs, equipment and equipment maintenance invoices, procurement documents, purchase orders and/or contracts, and proof of payment, that represent amounts to be reimbursed under this Agreement within ninety (90) days from the date when expenditure was incurred. All requests for reimbursement shall be sent to: 7 151 Riverside County Sheriffs Office Irina Sandoval / OPSG Grants Unit 1500 Castellano Rd Riverside, CA 92509 7.3.1 Reimbursement forms and invoices must have the signature of PARTY's Authorized Agent, ce1iifying that the invoice and substantiating documentation, e.g., DARs, timesheets, payroll and labor reports, procurement documents, etc., are true and correct. 7.3.2 PARTIES shall provide payroll records for each person whose costs are reimbursable under this Agreement, to include, at a minimum, the person's name, classification, duty position, task, regular hourly rate, ove1iime hourly rate, overtime hours worked, date(s) overtime worked, and fringe benefit rate and cost. 7.3.2.1 PARTIES shall make available to SHERIFF for inspection, upon request, all payroll records and any other records that relate to the Basic Services provided under this Agreement. 7.3.3 PARTIES shall submit to SHERIFF, verifiable and complete supporting documentation to substantiate reimbursement requests for service maintenance and/or equipment purchase, to include the equipment invento1y ledger, certified copies of invoice, purchase order, proof of payment to vendor and procurement documentation. 7.3.3.1 PARTIES shall provide procurement records that show proof of compliance to 2 CFR 200.317-200.327 requirements, and documents that substantiate full and open competition, to include but not limited to copies of solicitation (RFQ, RFB, RFP), rationale for the method of procurement, contract policy, basis for the contract type and price, purchase request, statement of work and other pre-solicitation documents, cost/price analysis (if applicable), profit negotiation (if applicable), purchase orders, federal contract provisions with required language incorporated within contracts under federal award (as directed herein by Exhibit F -Federal Contract Provision), notice of award, record of protest, performance or other bond documents, specialized endorsements, suspension and debarment listing, etc. 7.3.3.2 PARTIES shall make available to SHERIFF for inspection and upon request, all procurement records that provide historical and background information to answer inquiries pe1iaining to the acquisition of service maintenance and/or equipment that may arise in a review or audit or until the grant record retention period expires. 7 .3.4 PARTIES shall ensure awareness, understanding and compliance to all grant rules and procurement requirements. PARTIES shall be responsible in making sure that proper authorization are in place for any OPSG equipment purchase that require 8 152 specialized endorsement or approvals, including waiver request forms or Environmental Planning and Historic Preservation (EHP) compliance. 7.3.5 Noncompetitive procurements of equipment exceeding the $250,000 simplified acquisition threshold established by Federal Acquisition Regulation (FAR) 48 CFR Subpart 2.1, in accordance with 41 U.S.C. 1908, will require prior written approval from Cal OES. 7.3.5.1 Prior to purchasing equipment determined to be noncompetitive, PARTIES shall provide SHERIFF by email a copy of their Purchasing Agent's approval for the noncompetitive procurement which SHERIFF will submit to Cal OES for approval. 7.3.6 PARTIES shall obtain a performance bond from vendors prior to procuring equipment items costing over $250,000, or any vehicle, aircraft, or watercraft, to be paid at the time of purchase, in order to ensure delivery of the equipment within ninety (90) days of the performance period end date. 7.3.6.1 Performance bond shall be included for reimbursement with invoice. 7.3.7 Within ninety (90) business days upon receipt of valid invoice and supporting documentation specified in subparagraphs under 7.3, SHERIFF will reimburse PARTIES for the Basic Services agreed to. 7.3.8 Each PARTY shall manage their allocation and track their claims to ensure they remain within their allocated amount as specified in Exhibit A -FY 2023 OPSG Budget Worksheet. 7.4 Reimbursement Disallowances PARTIES not in compliance with procedures in paragraph 7.3 above risk having incurred expenditures disallowed for reimbursement by SHERIFF. PARTIES that fail to submit claims for reimbursement within ninety (90) days will be notified in writing by SHERIFF that the claim( s) is/are past due, and funds allocated to the PARTY for that time period may be redistributed among other PARTIES. 8. PROGRAM/FINANCIAL ADMINISTRATION 8.1 PARTIES shall use as the primary reference in all programmatic, financial, and grant administration matters and adhere to the policies and regulations in Exhibit E -Title 2 of the Code of Federal Regulations Pait 200 (2 CFR Patt 200), Exhibit G-FY 2023 HSGP NOFO, Exhibit H -FY 2023 HSGP CA Supplement to the NOFO, and Exhibit I-FEMA Preparedness Grants Manual, in conjunction with updates issued by the Office of Management and Budget (0MB), Grants & Training (G&T) information bulletins, and Cal OES policy, regulations, and statutes. 9 153 8,1.l Contract Provisions PARTIES shall ensure that all contracts adhere to all applicable contract provisions stated in 2 CFR 200.317-200.327 and found in Appendix II -Contract Provisions for Non-Federal Entity Contracts under Federal Awards. Reimbursement claims associated with contracts that are found to be in noncompliance will be denied. 8.1.2 Methods of Procurement PARTIES shall adhere to the procurement methods found in 2 CFR 200, Subpart D, Section 200.320. 9. REPAYMENT OF REIMBURSEMENTS 9.1 Any PARTY found tlu·ough compliance assessments, audits, or monitoring site visits, to be out of compliance with paragraphs 7.3 and 8 above, shall retroactively repay SHERIFF, within ninety (90) days of notification, any reimbursement found out of compliance which was paid to PARTY during the term of, and even after the term, of this Agreement. This provision shall survive termination or expiration of this Agreement. 10. INDEMNIFICATION -WORKERS' COMPENSATION, EMPLOYMENT AND CLAIMS AND LIABILITY ISSUES 10.1 The COUNTY shall fully indemnify and hold harmless non-County PARTIES and their respective officers, employees and agents, from any claims, losses, fines, expenses (including attorneys' fees and court costs and/or arbitration costs), costs, damages or liabilities arising from or related to (1) any workers' compensation claim or demand or other workers' compensation proceeding arising from or related to, or claimed to arise from or relate to, employment which is brought by an employee of the COUNTY or any contract labor provider retained by the COUNTY, or (2) any claim, demand, suit, or other proceeding arising from or related to, or claimed to arise from or relate to, the status of employment (including without limitation, compensation, demotion, promotion, discipline, termination, hiring, work assignment, transfer, disability, leave or other such matters) which is brought by an employee of the COUNTY or any contract labor provider retained by the COUNTY. 10.2 Each non-County PARTY shall fully indemnify and hold harmless the COUNTY, its officers, employees, and agents, from any claims, losses, fines, expenses (including attorneys' fees and court costs or arbitration costs), costs, damages or liabilities arising from or related to (1) any workers' compensation claim or demand or other workers' compensation proceeding arising from or related to, or claimed to arise from or relate to, employment which is brought by an employee of that respective non-County PARTY or any contract labor provider retained by non-County PARTY, or (2) any claim, demand, suit, or other proceeding arising from or related to, or claimed to arise from or relate to, the status of employment (including without limitation, compensation, demotion, promotion, discipline, termination, hiring, work assignment, transfer, disability, leave or other such matters) which is brought by an employee of that respective non-County PARTY or any contract labor provider retained by the non-County PARTY. 10 154 10.3 Each non-County PARTY shall fully indemnify and hold harmless the other non- County PARTIES, its officers, employees, and agents, from any claims, losses, fines, expenses (including attorneys' fees and court costs or arbitration costs), costs, damages or liabilities arising from or related to (1) any workers' compensation claim or demand or other workers' compensation proceeding arising from or related to, or claimed to arise from or relate to, employment which is brought by an employee of that respective non-County PARTY or any contract labor provider retained by non-County PARTY, or (2) any claim, demand, suit, or other proceeding arising from or related to, or claimed to arise from or relate to, the status of employment (including without limitation, compensation, demotion, promotion, discipline, termination, hiring, work assignment, transfer, disability, leave or other such matters) which is brought by an employee of that respective non-County PARTY or any contract labor provider retained by the non-County PARTY. 11. INDEMNIFICATION RELATED TO ACTS OR OMISSIONS; NEGLIGENCE 11.1 Claims Arising from Sole Acts or Omissions of a PARTY Each PARTY to this Agreement hereby agrees to defend and indemnify the other PARTIES to this Agreement, their agents, officers, and employees, from any claim, action, or proceeding against the other PARTIES, arising solely out of its own acts or omissions in the performance of this Agreement. At each PARTY's sole discretion, each PARTY may participate at its own expense in the defense of any claim, action, or proceeding, but such pa1ticipation shall not relieve any PARTY of any obligation imposed by this Agreement. PARTIES shall notify each other promptly of any claim, action, or proceeding and cooperate fully in the defense. 11.2 Claims Arising from Concurrent Acts or Omissions The PAR TIES hereby agree to defend themselves from any claim, action, or proceeding arising out of the concurrent acts or omissions of the PAR TIES. In such cases, PARTIES agree to retain their own legal counsel, bear their own defense costs, and waive their right to seek reimbursement of such costs, except as provided in paragraph 11.4 below. 11.3 Joint Defense Notwithstanding paragraph 11.2 above, in cases where PARTIES agree in writing to a joint defense, PARTIES may appoint joint defense counsel to defend the claim, action, or proceeding arising out of the concurrent acts or omissions of PARTIES. Joint defense counsel shall be selected by mutual agreement of PARTIES. PARTIES agree to share the costs of such joint defense and any agreed settlement in equal amounts, except as provided in paragraph 11.4 below. PARTIES further agree that no PARTY may bind the others to a settlement agreement without the written consent of the others. 11.4 Reimbursement and/or Reallocation Where a trial verdict or arbitration award allocates or determines the comparative fault of the parties, PARTIES may seek reimbursement and/or reallocation of defense costs, settlement payments, judgments, and awards, consistent with such comparative fault. 11 155 12. GENERAL PROVISIONS 12.1 Notices Any notice, request, demand, or other communication required or permitted hereunder shall be in writing and may be personally delivered or given as of the date of mailing by depositing such notice in the United States mail, first-class postage prepaid and addressed as follows, or, to such other place as each PARTY may designate by subsequent written notice to each other: To SHERIFF: Sheriff Riverside County Sheriffs Office 4095 Lemon Street Riverside, CA 92501 To Non-County PARTIES: Chief of Police Costa Mesa Police Department 99 Fair Drive Costa Mesa, CA 92626 Chief of Police Huntington Beach Police Department 2000 Main Street Huntington Beach, CA 92648 Chief of Police Laguna Beach Police Department 505 Forest Ave Laguna Beach, CA 92651 Chief of Police Seal Beach Police Depaiiment 911 Seal Beach Blvd Seal Beach, CA 90740 Chief of Police Hawthorne Police Department 12501 Hawthorne Blvd Hawthorne, CA 90250 Chief of Police La Habra Police Department 150 N Euclid Street La Habra, CA 90631 Chief of Police Newport Beach Police Department 870 Santa Barbara Drive Newp011 Beach, CA 92660 Sheriff Los Angeles County Sheriffs Dept. Special Enforcement Bureau 1060 North Eastern Avenue Los Angeles, CA 90063 A notice shall be effective on the date of personal delivery if personally delivered before 5:00 p.m. on a business day or otherwise on the first business day following personal delivery; or two (2) business days following the date the notice is postmarked, if mailed; or on the first business day following delivery to the applicable overnight courier, if sent by overnight courier for next business day delivery and otherwise when received. 12 156 12.2 Amendment; Assignment This Agreement may be modified or amended only by a written document signed by the COUNTY through SHERIFF and the affected PARTY or PARTIES, and no oral understanding or agreement shall be binding on any PARTY or PARTIES. No PARTY shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other PARTIES. 12.3 Entire Agreement This Agreement constitutes the complete and exclusive statement of agreement between the COUNTY and non-County PARTIES with respect to the subject matter hereto. As such, all prior written and oral understandings are superseded in total by this Agreement. 12.4 Construction This Agreement will be deemed to have been made and shall be construed, interpreted, governed, and enforced pursuant to, and in accordance with, the laws of the State of California. The headings and captions used in this Agreement are for convenience and ease of reference only and shall not be used to construe, interpret, expand, or limit the terms of the Agreement and shall not be construed against any one PARTY. 12.5 Waiver A waiver by COUNTY or non-County PARTIES ofa breach of any of the covenants to be performed by COUNTY or non-County PARTIES shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions, or conditions of this Agreement. In addition, the failure of any PARTY to insist upon strict compliance with any provision of this Agreement shall not be considered a waiver of any right to do so, whether for that breach or any subsequent breach. The acceptance by COUNTY or non- County PARTIES of either performance or payment shall not be considered a waiver of P ARTY's preceding breach of this Agreement. 12.6 Authority to Enter Agreement COUNTY and non-County PARTIES have all requisite power and authority to conduct their respective business and to execute, deliver, and perform the Agreement. Each PARTY warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective PARTY. 12. 7 Cooperation COUNTY through SHERIFF and Non-County PARTIES will cooperate in good faith to implement this Agreement. 12.8 Counterparts This Agreement may be executed in one or more counterpaits, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. SHERIFF will provide each PARTY with a copy of this Agreement once fully executed. 13 157 12.9 Severability This Agreement is subject to all applicable laws and regulations. If any provision of this Agreement is found by any Court or other legal authority, or is agreed upon by the PARTIES, to be in conflict with any law or regulation, then the conflicting provision shall be considered null and void. If the effect of nullifying any conflicting provision is such that a material benefit of this Agreement to any PARTY is lost, then the Agreement may be terminated at the option of the affected PARTY, with the notice as required in this Agreement. In all other cases, the remainder of this Agreement shall be severable and shall continue in full force and effect. 12.10 Legislative Changes If any changes are made to regulations pursuant to which this Agreement is made or to any successor legislation or regulations, or if the DHS imposes any budget requirements or limitations applicable to this Agreement and the services to be provided hereunder, then (I) to the extent any of the changes are ofmandatoty application, such change(s) shall apply to the PARTIES in this Agreement, and this Agreement shall be deemed to be amended to be consistent with such changes(s) except to the extent that such change(s) alter(s) a material provision of this Agreement in which case such material provision shall be voidable and the PARTIES will negotiate in good faith to amend the Agreement as necessary, and (2) to the extent any of the changes are not of mandatory application, such change(s) shall not affect this Agreement or the right or obligations of COUNTY and non-COUNTY under this Agreement unless the PARTIES mutually agree to subject themselves to such changes(s). 12.11 Representation Each PARTIES' Chief, and/or Sheriff, or their respective designee, shall represent its PARTY in all discussions pe1iaining to this Agreement. SHERIFF, or his or her designee, shall represent COUNTY in all discussions pertaining to this Agreement. 12.12 Dispute Resolution Concerning Services and Payment In the event of any dispute concerning services and payment arising from this Agreement, representatives described in paragraph 12.11, will meet, and confer within ten (I 0) business days after receiving notice of the dispute to resolve the dispute. 12.13 Termination of Funding If funding for reimbursement of costs related to Operations is terminated by the DHS, this Agreement in its entirety shall be considered null and void and COUNTY through SHERJFF and PAR TIES shall no longer be required to provide Operations as described herein. In such event, PARTIES shall meet immediately, and if agreed upon by the PARTIES, mutually develop and implement within a reasonable time frame, a transition plan for the provision of Operations through alternate means. 12.14 Obligation This Agreement shall be binding upon the successors of the PARTIES. 14 158 12.15 California Law This Agreement is executed and delivered within the State of California and the rights and obligations of the PARTIES hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California. IN WITNESS WHEREOF, the PARTIES hereto approve and agree to the te1ms of this Agreement, such Agreement being effective March 25, 2024, unless otherwise specified. RIVERSIDE COUNTY SHERIFF'S OFFICE Chad Bianco Sheriff-Coroner COSTA MESA POLICE DEPARTMENT Ron Lawrence Chief HUNTINGTON BEACH POLICE DEPARTMENT Eric G. Parra Chief LAGUNA BEACH POLICE DEPARTMENT Jeff Calvert Chief ::~ROVED AS TO FORc,.c/1 MICHAEL E. GATES / l CITY ATTORNEY CITY OF HUNTINGTON Bi;l,CI-' 15 Approved as to form and legality: Minh C. Tran OFFICE OF COUNTY COUNSEL COUNTY OF RIVERSIDE Amrit P. Dhillon Deputy County Counsel HAWTHORNE POLICE DEPARTMENT Gary Tomatani Chief LA HABRA POLICE DEPARTMENT Adam Foster Chief NEWPORT BEACH POLICE DEPARTMENT Joe Cartwright Chief 159 SEAL BEACH POLICE DEPARTMENT Michael Henderson Chief LOS ANGELES COUNTY SHERIFF'S DEPARTMENT Robert G. Luna Sheriff 16 Approved as to form: DA WYN R. HARRISON OFFICE OF THE COUNTY COUNSEL COUNTY OF LOS ANGELES Michele Jackson Principal Deputy County Counsel 16 0 FY 2023 OPERATION STONEGARDEN RIVERSIDE COUNTY SHERIFF'S OFFICE -SUB-RECIPIENT SUMMARY A ... B .. · C AGENCY NAME I Operational OT Fringe-aenefits Vehide/Ve$sel · ;;_--__ ·: Maint RIV"erside County Sheriff's Dei:iartment -------- $ 259,436 $ 12,354 $ - Costa Mesa Police Decartment $ 116,263 $ -$ - Hawthorne Police Deoartment $ 106,000 $ -$ - Huntinaton Beach Police Department $ 199,000 $ -$ - La Habra Police Deoartment $ 65,776 $ 7,652 $ - Laouna Beach Police Decartment $ 35,572 $ 515 $ - Los Anoeles Countv Sheriff's Oecartment $ 885,000 $ -$ - Newoort Beach Police Deoartment $ 93,642 $ 1,358 $ - Seal Beach Police Department $ 102,161 $ 1,481 $ - ™ iiclffi& ·. $ $ $ $ $ $ $ $ $ EXHIBIT A Budget Narrative Category 0 .. .. E . F G H . . Equip Malnt·--New/Reptaee Fuel Costs MTie8.ge Flight Costs M&A TOTAL .. . . /._--Equip'_· -$ 399,200 $ -$ 27,510 $ -$ 145,000 $ 843,500 -$ 72,000 $ -$ 2,737 $ -$ -$ 191,000 -$ -$ -$ -$ -$ -$ 106,000 -$ -$ -$ -$ 26,000 $ -$ 225,000 -$ 133,500 $ -$ 1,572 $ -$ -$ 208,500 -$ 80,000 $ -$ 4,913 $ -$ -$ 121,000 -$ -$ -$ -$ -$ -$ 885,000 -$ 30,000 $ -$ -$ -$ -$ 125,000 -$ 89,000 $ -$ 2,358 $ -$ -$ 195,000 a1m1a fiMi& ti¥MHl'..ECJIBifiiiWt11II 161 EXHIBITS Homeland Security Grant Program -Operation Stonegarden Grant (OPSG) FY 2023 Standard Assurances (All OPSG Participating Agencies) Name of Agency:----------------------------------- Address: ------------------------------------ City: ______________ _ State: _____ _ Zip Code: _____ _ As the duly authorized representative of the Agency ("Agency") named above, I hereby certify that the Agency has the legal authority to apply for federal assistance and has the institutional, managerial and financial capability (including sufficient funds to pay any non-federal share of project cost or to retroactively repay any reimbursement found out of compliance which was paid to Agency, for as long as the grant is active) to ensure proper planning, management and completion of the project described in this application, within prescribed timelines. I further aclmowledge that the Agency is responsible for reviewing and adhering to all requirements within the: (a) Applicable Federal Regulations (see below); (b) Federal Program Notice of Funding Oppmtunity (NOFO); (c) Federal Preparedness Grants Manual; (d) HSGP California State Supplement to the NOFO; and (e) Federal and State Grant Program Guidelines. Federal Regulations Government cost principles, uniform administrative requirements and audit requirements for federal grant programs are set fmth in Title 2, Part 200 of the Code of Federal Regulations (C.F.R.). Updates are issued by the Office of Management and Budget {0MB) and can be found at http://www.whitehouse.gov/omb/. Significant state and federal grant award requirements (some of which appear in the documents listed above) are set forth below. The Agency hereby agrees to comply with the following: 1. Proof of Authority The Agency will obtain written authorization from the city council, governing board or authorized body in suppott of this project. This written authorization must specify that the Agency and the city council, governing board or authorized body agree: (a) To provide all matching funds required for said project and that any cash match will be appropriated as required; (b) That any liability arising out of the performance of this agreement shall be the responsibility of the Agency and the city council, governing board or authorized body; (c) That grant funds shall not be used to supplant expenditures controlled by the city council, governing board or authorized body; FY 2023 Operation Stonegarden Grant • Standard Assurances Page 1 of9 Initials 162 (d) That the Agency is authorized by the city council, governing body, or authorized body to apply for federal assistance, and the institutional, managerial and financial capability (including funds sufficient to pay the non-federal share of project cost, if any, or to retroactively repay any reimbursement found out of compliance which was paid to Agency, for as long as the grant is active) to ensure proper planning, management and completion of the project described in this application; and ( e) That the official executing this agreement is, in fact, authorized to do so. This Proof of Authority must be maintained on file and readily available upon request. 2. Period of Performance The Agency is only authorized to perform allowable activities approved under the award, within the period of performance specified in the grant. Allowable activities may be initiated after approval of the award. 3. Lobbying and Political Activities As required by Section 1352, Title 31 of the U.S. Code (U.S.C.), for persons entering into a contract, grant, loan or cooperative agreement from an agency or requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan, the Agency ce1tifies that: (a) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. (b) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. ( c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all Agencies shall ce1tify and disclose accordingly. The Agency will also comply with provisions of the Hatch Act (5 U.S.C. §§1501-1508 and §§7324-7328) which limit the political activities of employees whose principal employment activities are funded in whole or in pait with federal funds. Finally, the Agency agrees that federal funds will not be used, directly or indirectly, to support the enactment, repeal, modification or adoption of any law, regulation or policy without the express written approval from the California Governor's Office of Emergency Services (Cal OES) or the federal awarding agency. 4. Debarment and Suspension As required by Executive Orders (EO) 12549 and 12689, and 2 C.F.R §200.213 and codified in 2 C.F.R Part 180, Debarment and Suspension, the Agency will provide protection against waste, fraud and abuse by debarring or suspending those persons deemed irresponsible in their dealings with the federal government. The Agency ce1tifies that it and its principals, contractors, or subcontractors: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal depa11ment or agency; (b) Have not within a three-year period preceding this application been convicted ofor had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribe1y, falsification or destruction of records, making false statements, FY 2023 Operation Stonegarden Grant M Standard Assurances Page 2 of9 hutials 163 or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (2)(b) of this certification; and (d) Have not within a three-year period preceding this application had one or more public transaction (Federal, State, or local) terminated for cause or default. Where the Agency is unable to certify to any of the statements in this ce11ification, he or she shall attach an explanation to this application. 5, Non-Discl'imination and Equal Employment Opportunity The Agency will comply with all state and federal statutes relating to non-discrimination. These include, but are not limited to the following: (a) Title VI of the Civil Rights Act of 1964 (Public Law (P.L.) 88-352 and 42 U.S.C. § 2000d et. seq.) which prohibits discrimination on the basis of race, color or national origin and requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP) to their programs and services; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex in any federally funded educational program or activity; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination against those with disabilities or access and functional needs; (d) Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, and requires buildings and structures be accessible to those with disabilities and access and functional needs (42 U.S.C. § 12101-12213); (e) Age Discrimination Act of 1975, (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age; (t) Public Health Service Act of 1912 (42 U.S.C. §§ 290 dd ---2), relating to confidentiality of patient records regarding substance abuse treatment; (g) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), relating to nondiscrimination in the sale, rental or financing of housing as implemented by the Department of Housing and Urban Development at 24 C.F.R Pait 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units ---i.e., the public and common use areas and individual apa11ment units (all units in buildings with elevators and ground- floor units in buildings without elevators) ---be designed and constructed with ce1tain accessible features (See 24 C.F.R § 100.201); (h) Executive Order (E.O.) 11246, which prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identification, or national origin; (i) Executive Order (E.O.) 11375, which bans discrimination on the basis of race, color, religion, sex, sexual orientation, gender identification, or national origin in hiring and employment in both the United States federal workforce and on the pait of government contractors; (j) California Public Contract Code § 10295.3, which prohibits discrimination based on domestic partnerships and those in same sex marriages; (k) OHS policy to ensure the equal treatment of faith-based organizations, under which all recipients must comply with equal treatment policies and requirements contained in 6 C.F.R. Part 19; (I) The Agency will comply with California's Fair Employment and Housing Act (FEHA) (California Government Code § 12940, 12945, 42945.2), as applicable. FEHA prohibits harassment and discrimination in employment because of anceslly, familial status, race, color, religious creed (including religious dress and grooming practices), sex (which includes pregnancy, childbi1th, FY 2023 Operation Stonegarden Grant ~ Standard Assurances Page3 of9 hutials 164 breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, genetic information, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave, military and veteran status, and/or retaliation for protesting illegal discrimination related to one of these categories, or for repmting patient abuse in tax supported institutions; (m) Any other nondiscrimination provisions in the specific statute(s) under which application for federal assistance is being made; and (n) The requirements of any other nondiscrimination statute(s) which may apply to the application. 6, Drug-Free Workplace As required by the Drug-Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.), the Agency ce1tifies that it will maintain a drug-free workplace and a drug-free awareness program as outlined in the Act. 7. Environmental Standards The Agency will comply with State and Federal environmental standards, including: (a) California Environmental Quality Act (CEQA) (California Public Resources Code §§ 21000-21177), to include coordination with the city or county planning agency; (b) CEQA Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, §§ 15000-15387); (c) Federal Clean Water Act (CWA) (33 U.S.C. § 125 I et seq.), which establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters; (d) Federal Clean Air Act of 1955 (42 U.S.C. § 7401), which regulates air emissions from stationa1y and mobile sources; (e) Institution of environmental quality control measures under the National Environmental Policy Act (NEPA) of 1969 (P.L. 91-190); the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA; and Executive Orders (EO) 12898 which focuses on the environmental and human health effects of federal actions on minority and low-income populations with the goal of achieving environmental protection for all communities; (f) Evaluation of flood hazards in floodplains in accordance with Executive Order (EO) 11988 (g) Executive Order (EO) 11514 which sets forth national environmental standards; (h) Executive Order (EO) 11738 instituted to assure that each federal agency empowered to enter into contracts for the procurement of goods, materials, or services and each federal agency empowered to extend federal assistance by way of grant, loan, or contract shall undertake such procurement and assistance activities in a manner that will result in effective enforcement of the Clean Air Act and the Federal Water Pollution Control Act Executive Order (EO) 11990 which requires preservation of wetlands; (i) The Safe Drinking Water Act of 1974, (P.L. 93-523); G) The Endangered Species Act of 1973, (P.L. 93-205); (k) Assurance of project consistency with the approved state management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. §§ 1451 et seq.); (I) Conformity of Federal Actions to State (Clear Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. §§ 7401 etseq.); (111) Wild and Scenic Rivers Act of 1968 (16 U.S.C. § 1271 et seq.) related to protecting components or potential components of the national wild and scenic rivers system. The Agency shall not be: 1) in violation of any order or resolution promulgated by the State Air Resources Board or an air pollution district; 2) subject to a cease and desist order pursuant to§ 13301 of the California Water Code for violation of waste discharge requirements or discharge prohibitions; or 3) determined to be in violation of federal law relating to air or water pollution. FY 2023 Operation Stoncgarden Grant -Standard Assurances Page 4 of9 Initials 165 8. Audits For grant recipients expending $750,000 or more in federal grant funds annually, the Agency will cause to be performed the required financial and compliance audits in accordance with the Single Audit Act Amendments of 1996 and Title 2 of the Code of Federal Regulations, Part 200, Subpart F Audit Requirements. 9. Access to Records In accordance with 2 C.F.R § 200.336, the Agency will give the awarding agency, the Comptroller General of the United States and, if appropriate, the State, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award. The Agency will require any subrecipients, contractors, successors, transferees and assignees to acknowledge and agree to comply with this provision. 10. Conflict oflnterest The Agency will establish safeguards to prohibit the Agency's employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain. 11. Financial Management False Claims for Payment-The Agency will comply with 31 U.S.C § 3729-3733 which sets forth that no subgrantee, recipient or subrecipient shall submit a false claim for payment, reimbursement or advance. 12. Reporting -Accountability The Agency agrees to comply with applicable provisions of the Federal Funding Accountability and Transparency Act (FFATA) (P.L. 109-282), specifically (a) the rep01ting of subawards obligating $25,000 or more in federal funds and (b) executive compensation data for first-tier subawards. This includes the provisions ofFFATA, which includes requirements for executive compensation, and also requirements implementing the Act for the non-federal entity at 2 C.F.R. patt 25 Financial Assistance Use of Universal Identifier and Central Contractor Registration and 2 C.F.R. part 170 Repmting Subaward and Executive Compensation Information. 13. Whistleblower Protections The Agency also must comply with statutmy requirements for whistleblower protections at 10 U.S.C. § 2409, 41 U.S.C. § 4712, and IO U.S.C. § 2324, 41 U.S.C. § 4304 and§ 4310. 14. Human Trafficking The Agency will comply with the requirements of Section 106(g) of the Trafficking Victims Protection Act {TVPA) of 2000, as amended (22 U.S.C. § 7104) which prohibits grant award recipients or a subrecipient from: (1) engaging in trafficking in persons during the period of time that the award is in effect; (2) procuring a commercial sex act during the period of time that the award is in effect; or (3) using forced labor in the performance of the award or subawards under the award. 15. Labor Standards The Agency will comply with the following federal labor standards: (a) The Davis-Bacon Act (40 U.S.C. §§ 276a to 276a-7), as applicable, and the Copeland Act (40 U.S.C. § 3145 and 18 U.S.C. § 874) and the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327- 333), regarding labor standards for federally-assisted construction contracts or subcontracts, and (b) The Federal Fair Labor Standards Act (29 U.S.C. § 201 et al.) as they apply to employees of institutes of higher learning (IHE), hospitals and other non-profit organizations. 16. Worker's Compensation The Agency must comply with provisions which require evety employer to be insured to protect workers who may be injured on the job at all times during the performance of the work of this Agreement, as per the workers compensation laws set fotth in California Labor Code§§ 3700 et seq. FY 2023 Operation Stoncgarden Grant ~ Standard Assurances Page 5 of9 Imtials 166 17. Property-Related If applicable to the type of project funded by this federal award, the Agency will: (a) Comply with the requirements of Titles II and llI of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P .L. 91-646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of federal or federally-assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of federal participation in purchase; (b) Comply with flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234) which requires Agencies in a special flood hazard area to pmticipate in the program and to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more; (c) Assist the awarding agency in assuring compliance with Section I 06 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. § 470), Executive Order (EO) 11593 (identification and protection of historic pro petties), and the Archaeological and Historic Preservation Act of 1974 ( 16 U.S.C. § 469a-l et seq.); and (d) Comply with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. § 4831 and 24 C.F.R. Part 35) which prohibits the use of lead-based paint in construction or rehabilitation of residence structures. 18. Certifications Applicable Only to Federally Funded Construction Projects For all construction projects, the Agency will: (a) Not dispose of, modify the use of, or change the terms of the real property title or other interest in the site and facilities without permission and instructions from the awarding agency. Will record the federal awarding agency directives and will include a covenant in the title of real propetiy acquired in whole or in part with federal assistance funds to assure nondiscrimination during the useful life of the project. (b) Comply with the requirements of the awarding agency with regard to the drafting, review and approval of construction plans and specifications; and ( c) Provide and maintain competent and adequate engineering supervision at the construction site to ensure that the complete work conforms to the approved plans and specifications and will furnish progressive reports and such other information as may be required by the assistance awarding agency or State. 19. Use of Cellular Device While Driving is Prohibited Agencies are required to comply with California Vehicle Code sections 23123 and 23123.5. These laws prohibit driving motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication. Drivers are also prohibited from the use of a wireless telephone without hands-free listening and talking, unless to make an emergency call to 911, law enforcement, or similar services. 20. California Public Records Act and Freedom of Information Act The Agency acknowledges that all information submitted in the course of applying for funding under this program, or provided in the course of an entity's grant management activities that are under federal control, is subject to the Freedom oflnformation Act (FOIA), 5 U.S.C. § 552, and the California Public Records Act, California Government Code section 6250 et seq. The Agency should consider these laws and consult its own State and local laws and regulations regarding the release of information when repmting sensitive matters in the grant application, needs assessment, and strategic planning process. FY 2023 Operation Stonegardcn Grant -Standard Assurances Page 6 of9 Initials 167 HOMELAND SECURITY GRANT PROGRAM (HSGP) - PROGRAM SPECIFIC ASSURANCES/ CERTIFICATIONS 21. Acknowledgement of Federal Funding from DHS All Agencies must acknowledge their use of federal funding when issuing statements, press releases, requests for proposal, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds. 22. Activities Conducted Abroad All Agencies must ensure that project activities carried on outside the United States are coordinated as necessaiy with appropriate government authorities and that appropriate licenses, permits, or approvals are obtained. 23. Best Practices for Collection and Use of Personally Identifiable Information(PII) OHS defines personally identifiable information (PII) as any information that permits the identity of an individual to be directly or indirectly inferred, including any information that is linked or linkable to that individual. All Agencies who collect PII are required to have a publicly available privacy policy that describes standards on the usage and maintenance of PII they collect. Agencies may also find the OHS Privacy Impact Assessments: Privacy Guidance and Privacy template a useful resource respectively. 24. Copyright All Agencies must affix the applicable copyright notices of 17 U.S.C. §§ 40 I or 402 and an acknowledgement of U.S. Government sponsorship (including the award number) to any work first produced under federal financial assistance awards. 25. Duplication of Benefits Any cost allocable to a particular federal financial assistance award provided for in 2 C.F.R. Part 200, Subpatt E may not be charged to other federal financial assistance awards to overcome fund deficiencies, to avoid restrictions imposed by federal statutes, regulations, or federal financial assistance award terms and conditions, or for other reasons. However, these prohibitions would not preclude Agencies from shifting costs that are allowable under two or more awards in accordance with existing federal statutes, regulations, or the federal financial assistance award terms and conditions. 26. Energy Policy and Conservation Act All Agencies must comply with the requirements of 42 U.S.C. § 620 I which contain policies relating to energy efficiency that are defined in the state energy conservation plan issued in compliance with this Act. 27. Federal Debt Status All Agencies are required to be non-delinquent in their repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowances, and benefit overpayments. See 0MB Circular A- 129. 28. Fly America Act of 1974 All Agencies must comply with Preference for U.S. Flag Air Carriers: (air carriers holding ce1tificates under 49 U.S.C. § 41102) for international air transp01tation of people and prope1ty to the extent that such service is available, in accordance with the International Air Transp01tation Fair Competitive Practices Act of 1974 (49 U.S.C. § 40118) and the interpretative guidelines issued by the Comptroller General of the United States in the March 31, 1981, amendment to Comptroller General Decision B-138942. FY 2023 Operation Stonegarden Grant -Standard Assurances Page 7 of9 Initials 168 29. Hotel and Motel Fire Safety Act of1990 In accordance with Section 6 of the Hotel and Motel Fire Safety Act of 1990, all Agencies must ensure that all conference, meeting, convention, or training space funded in whole or in patt with federal funds complies with the fire prevention and control guidelines of the Federal Fire Prevention and Control Act of 1974, as amended, 15 U.S.C. § 2225a. 30. Non-supplanting Requirement All Agencies who receive federal financial assistance awards made under programs that prohibit supplanting by law must ensure that federal funds do not replace (supplant) funds that have been budgeted for the same purpose through non-federal sources. 31. Patents and Intellectual Property Rights Unless otherwise provided by law, Agencies are subject to the Bayh-Oole Act, Pub. L. No. 96-517, as amended, and codified in 35 U.S.C. § 200 et seq. All Agencies are subject to the specific requirements governing the development, repmting, and disposition of rights to inventions and patents resulting from financial assistance awards located at 37 C.F.R. Patt 401 and the standard patent rights clause located at 37 C.F.R. § 401.14. 32.SAFECOM All Agencies who receive federal financial assistance awards made under programs that provide emergency communication equipment and its related activities must comply with the SAFECOM Guidance for Emergency Communication Grants, including provisions on technical standards that ensure and enhance interoperable communications. 33. Terrorist Financing All Agencies must comply with Executive Order (EO) 13224 and U.S. law that prohibit transactions with, and the provisions ofresources and support to, individuals and organizations associated with terrorism. Agencies are legally responsible to ensure compliance with the EO and laws. 34. Reporting of Matters Related to Subrecipient Integrity and Performance If the total value of the Agency's currently active grants, cooperative agreements, and procurement contracts from all federal assistance offices exceeds $10,000,000 for any period of time during the period of performance of this federal financial assistance award, you must comply with the requirements set fotth in the government-wide Award Term and Condition for Recipient Integrity and Performance Matters located at 2 C.F.R. Patt 200, Appendix XII, the full text of which is incorporated here by reference in the award terms and conditions. 35. USA Patriot Act of2001 All Agencies must comply with the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S.C. §§ l 75-l 75c. 36. Use ofDHS Seal, Logo, and Flags All Agencies must obtain permission from OHS Financial Assistance Office, prior to using the OHS seal(s), logos, crests or reproductions of flags or likenesses of OHS agency officials, including use of the United States Coast Guard seal, logo, crests or reproductions of flags or likenesses of Coast Guard officials. FY 2023 Operation Stonegardcn Grant • Standard Assurances Page 8 of9 lmtials 169 IMPORTANT The purpose of the assurance is to obtain federal and state financial assistance, including any and all federal and state grants, loans, reimbursement, contracts, etc. The Agency recognizes and agrees that state financial assistance will be extended based on the representations made in this assurance. This assurance is binding on the Agency, its successors, transferees, assignees, etc. Failure to comply with any of the above assurances may result in suspension, termination, or reduction of grant funds. All appropriate documentation, as outlined above, must be maintained on file by the Agency and available for Cal OES or public scrutiny upon request. Failure to comply with these requirements may result in suspension of payments under the grant or termination of the grant or both and the Agency may be ineligible for award of any future grants if Cal OES determines that any of the following has occurred: (I) the Agency has made false ce1tification, or (2) violates the ce1tification by failing to cany out the requirements as noted above. All of the language contained within this document must be included in the award documents for all subawards at all tiers. All Agencies are bound by the Depaitment of Homeland Security Standard Terms and Conditions 2023, Version 2, hereby incorporated by reference, which can be found at: https://www.dhs.gov/publication/fyl 5-dhs- standard-terms-and-conditions. The undersigned represents that he/she is authorized to enter into this agreement for and on behalf of the above-named Agency. Name of Agency: Signature of Authorized Agent: Printed Name of Authorized Agent: ___________________ _ Title: ______________ _ Date: Email Address: _________________________ _ FY 2023 Operation Stonegarden Grant ~ Standard Assurances Page 9 of9 Initials 170 EXHIBIT C Homeland Security Grant Program -Operation Stonegarden Grant (OPSG) CERTIFICATION REGARDING LOBBYING UNDER FY2023 OPSG (All OPSG Participating Agencies) Certification for Contracts. Grants. Loans and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form- LLL, 'Disclosure of Lobbying Activities,' in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. FY 2023 Operation Stonegarden Grant -Certification Regarding Lobbying Pagell2 171 Homeland Security Grant Program -Operation Stonegarden Grant (OPSG) CERTIFICATION REGARDING LOBBYING UNDER FY2023 OPSG (All OPSG Participating Agencies) The Subrecipient, as identified below, certifies, or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Subrecipient understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any. Name of Agency: _________________________ _ Signature of Authorized Agent: __________________ _ Printed Name of Authorized Agent: ________________ _ Title: _______________ Date: ___________ _ FY 2023 Operaflon Sfonegarden Gran! -Cerfificafion Regarding Lobbying Poge 2\2 172 APPENDIX A U.S. Department of Homeland Security U.S. Customs and Border Protection Operations Order Report Op Order Name: SDC/RCSD OPERATION STONEGARDEN (OPSG) FY2023 Op Order Number: 23-SDCSDC-08-002 Op Dates: From: 09/01/2023 To: 08/31/2026 (POP) Report Date: 08/21/2023 EXHIBIT D {U) Warning: The information contained herein remains under the control of the Depar(ment of Homeland Security (OHS), through U.S. Customs and Border Protection (CBP). Dissemination is for authorized law enforcement purposes only. (U) This document contains information that is UNCLASSIFIED//FOR OFFICIAL USE ONLY (U//FOUO). It contains information that may be exempt from public release under the Freedom of Information Act (S l).S.C. § 552). It is to be controlled, ston;d, handled, transmitted, distributed, and disposed ofin accordance with DHS Policy relating to FOUO information and is not to be released to the public, the media, or other personnel who do not have a valid needMtoMknow without prior approval of an authorized CBP official. (U) Privacy Act 5 U.S.C. § 552a(b) "No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursu'ant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 excePtions]." OOs and OPSG Operational documents contain shared intelligence, information, targeted enforcement information, Personally Identifiable Information (Pl!) ofUSBP and partner State, Local, and Tribal law enforcement entities. Pl! should not be released as it places public safety officials in danger from illicit actors and shared intelligence and information should not be disclosed without notice and per111ission from the contributing law enforcement agencies." EXECUTIVE SUMMARY Law enforcement pminerships between federal, state, and local entities are critical to improving operational control of the border. Grant funding in the amount of $2,900,000 via Operation Stonegarden (OPSG) will be utilized by a total of 6 partner law enforcement agencies from local units of government within the San Diego Sector Area of Responsibility, including Sheriffs Departments from Riverside and Los Angeles Counties, as well as California State Agencies to target border-related crime in the U.S./Mexico Border area and the California coastline. The Riverside County Sheriffs Depmiment (RCSD) will be the OPSG Grant Administrator. The point-of contact.(POC) will be Lieutenant James Kaffka. The USBP San Diego Sector Chief Patrol Agent will have operational oversight. The POC will be Special Operations Supervisor Anna Sofchek. The USBP San Diego Sector Chief Patrol Agent, in coordination/collaboration with OPSG stakeholders, will determine which areas will be the focus of operations. Security threats and operational hours/activities will be determined jointly between the San Diego Sector unified command staff and the OPSG Integrated Planning Team (IPT). Maritime-specific operations will be coordinated jointly with the San Diego Regional Coordinating Mechanism (ReCoM), Los Angeles/Long Beach ReCoM, Central California Maritime Agency Coordination Group (CenCal MAC), and the San Francisco ReCoM. Utilizing an all-threats approach in collaboration with U.S. Customs and Border Protection (CBP) / U.S. Border Patrol (USBP), state and local law enforcement agencies will exercise their 173 unique jurisdictional capabilities in order to collaboratively address border security issues. Historically, the San Diego Sector AOR has been a highly favored operational area for crime and drug smuggling organizations. The close proximity of Tijuana, Mexico to San Diego, California, population density, significant coastline, and extensive transportation networks leading to the interior immediately north of the border make San Diego a consistently lucrative target. Now, as the maritime smuggling threat increases, these organizations are looking for smuggling opportunities beyond San Diego County as demonstrated by Pangas being discovered more than 400 miles no11h in San Mateo County. Border-related crime represents an all-threat environment in that the primary criminal activity ( drug/human smuggling) often results in cross-border criminal organizations and individuals undertaking secondary and frequently, tertiary \:riminal activities that involve a wider range of crimes (kidnappings, assaults, murders, money laundering, cross-border weapons trafficking, etc.). These criminal activities, when undertaken in the U.S., constitute a threat to domestic security, subsequently triggering involvement by state and local law enforcement. I. SITUATION A. General Situation: San Diego County includes approximately 60 miles of international land border and the responsibility of the San Diego Sector (SDC) includes the 931 miles of coastal border of the State of California, including beaches and bays. SDC has an effective level of security that is commensurate with known and identified risks associated with criminal organizations. The incidence of border violence associated with competing drug cartels in the Tijuana/Tecate areas has continued and still has great potential to spread into the United States. Frequent assaults against Border Patrol Agents are a common diversionary tactic utilized by smuggling organizations to further their criminal activity. During a particularly volatile situation on July 23, 2009, Border Patrol Agent Robert Rosas was murdered in close proximity to the border fence while responding to an incursion in the Campo Station AOR. As security of the border is established and/or expanded within key target zones, criminal organizations resort to increasingly elaborate smuggling methods such as sophisticated cross-border tunnels, watercraft in the maritime environment, and ultra-light aircraft. U.S. Border Patrol (USBP) San Diego Sector Operation Division will address specific threats posed by such organizations and aggressively integrate OPSG assets to reduce violent crime along the border, increase border security, and improve the quality of life within affected communities throughout the San Diego Sector operational AOR. As the maritime threat continues to increase in San Diego Sector's AOR, it has been necessary to provide additional funding and support along the coast to address emerging maritime Panga smuggling events approximately 489 miles north in Monterey, Santa Cruz, and San Mateo counties. Since its inception, the intent of OPSG has been to enhance law enforcement preparedness and operational readiness along the nation's borders. The Depa1iment of Homeland Security Appropriations Act 20 IO (PL 111-83), via the Homeland Security Grant Program, allocated $90 million in FY 2023 OPSG grant 2 174 funds for use by local units of government to increase coordination and enforcement capabilities in support of Department of Homeland Security (DHS) goals including those outlined in the Border Patrol National Strategy. For this grant year, the San Diego Sector has been awarded $2,900,000 in FY 2023 OPSG Homeland Security Grant funds. B. Terrain/Weather: Terrain features within the San Diego Sector include beaches, estuaries, coastal plains, steep canyons and ravines, high desert, and mountains over six thousand feet in elevation. There are numerous environmentally sensitive and protected areas. Dense, low lying brush and scrub trees cover much of the rural terrain throughout. Riverside County, the fourth largest in the state of California, is home to twenty high-transit interstates and state routes commonly used for illegal trafficking operations. Orange County and Los Angeles County represents a rugged coastline along with varying weather. Los Angeles County also includes the Islands of Catalina and San Clemente. These islands are remote and desolate and represent an area of great concern for the San Diego Sector. Weather conditions vary greatly throughout the San Diego Sector. The western corridor generally maintains year-round mild temperatures that average 50 to 80 degrees. The central and eastern co1Tidors can experience extremes in temperatures ranging from subfreezing to well over I 00 degrees. Eastern portions of the County can experience occasional snowfall and high winds. In addition, the western portion of the San Diego Sector experiences frequent coastal eddies ( a combination of low clouds and fog), which extend several miles inland. Wildfires are a very real and persistent tlueat throughout the San Diego Sector. The fire season extends from May through November. Historically, wildfires have resulted in the devastating loss oflife and property. The combination of climatic extremes, rugged terrain, dense urban corridors, and protected environmental areas presents a complex challenge to conducting daily operations. As such, enforcement entities operating within the counties utilize considerable ingenuity and flexibility in order to achieve their missions. C. Criminal Element: Drug smuggling organizations continue to pose significant threats throughout the area. These organizations have become increasingly sophisticated and use counter surveillance, diversionary tactics, night vision devices, and secure 3 175 communications while conducting operations. Human trafficking, trans-border kidnappings, extortion, murder, and intimidation are common results of cartel competition for lucrative territory. Criminal debriefings, examination of pocket trash, and officer observations indicate substantial intelligence gathering efforts against Jaw enforcement operations by area criminal organizations. Smugglers frequently utilize dangerous tactics in order to further their cargo into the United States. Among these are failures to yield when vehicle or checkpoint stops are initiated, abandonment of the smuggling vehicle by the driver while it is still in motion, wrong-way driving on freeways north through the Mexican Port of Entry into the southbound Janes oflnterstate 5, and the overloading of boats with human cargo. The abandonment of individuals or entire groups by their guides in remote, inhospitable environments is not uncommon and has resulted in a significant number of deaths. Smuggling organizations using these, and other tactics, have been historically responsible for several assaults on Border Patrol Agents and local Jaw enforcement officers. D. Friendly Forces: Riverside County Sheriffs Department Huntington Beach Police Department Seal Beach Police Department Los Angeles County Sheriffs Department Laguna Beach Police Department Newport Beach Police Department Costa Mesa Police Department La Habra Police Department Hawthorne Police Department II. MISSION Department of Homeland Security, CBP/Border Patrol, state, and local law enforcement agencies operating in Riverside, Orange, and Los Angeles Counties will collaborate to raise border security by: • Disrupting and degrading targeted transnational criminal organizations (TCO' s) • Enhancing land/coastal border detection and interdiction capabilities • Expanding formal communication, intelligence protocols, and nontraditional intelligence/fusion opportunities III. EXECUTION A. Management/Supervisor Intent: Participating OPSG law enforcement agencies will enforce local/state laws within their jurisdiction and will not enforce immigration laws (Title 8 USC) on behalf ofCBP/Border Patrol. Each participating agency will conduct enforcement 4 176 activities that have a nexus and contribute to border security as described in the "Specific Responsibilities" section of this plan. B. General Concept: OPSG operational activities will emphasize those measures that increase border security in direct collaboration with CBP/Border Patrol. Participating agencies will utilize their unique areas of expertise and jurisdictional authority to patrol targeted areas within the county and participate in special operations targeting border nexus crime. Border security threat and operational hours/activities will be determined jointly between the San Diego Sector unified command staff and the OPSG Integrated Planning Team (!PT). Maritime-specific operations will be coordinated jointly with the San Diego Regional Coordinating Mechanism (ReCoM), Los Angeles/Long Beach ReCoM, CenCal MAC, and the San Francisco ReCoM. This operational concept does notresult in a change or extension of Federal authority to state or local law enforcement agencies to enforce Federal immigration laws (Title 8 USC). It is anticipated however, that increased enforcement activities under OPSG will reduce the threat of border incursions and also significantly impact the ability of criminal organizations to operate from the U.S. Mexico border in San Diego n01ih along the coast to San Mateo County. Participating agencies will utilize OPSG funding for overtime, fuel, mileage, vehicle/vessel maintenance, air support, and equipment in order to support enforcement operations as identified in the quarterly OPSG Operational Plan(s). If Federal immigration violations are encountered, state and local agencies will follow current local and state laws, policies and practices. This plan is subject to approval by the Chief Patrol Agent (CPA) of San Diego Sector (SDC) and the Office of Border Patrol (OBP) prior to release of OPSG funds. C. Specific Responsibilities: The main objective is to raise the level of U.S. border and California coastline security to reduce the threat of border-related crime by increasing law enforcement presence and special operations in rural and coastal areas, communities, and routes ofland and marine egress throughout the San Diego Sector AOR, including Riverside, Orange, and Los Angeles Counties. The participating agencies below will not enforce Title 8 (US Immigration law). They will each enforce state law and local ordinances against violators in target areas to help reduce criminal activity associated with transnational criminal organizations. Participating agencies will utilize OPSG funding for operational overtime, fuel, mileage, vehicle/vessel maintenance, air support, and equipment in order to support operations. Participating agencies may conduct intelligence-driven operations and perform coordinated cyclical intelligence based criminal interdiction operations as necessary in collaboration with the OPSG !PT. Operations described as follows 5 177 may be modified in order to facilitate additional enforcement efforts within allocated funds. All OPSG air operations will de-conflict with CBP and notify the San Diego ReCoM, Los Angeles/Long Beach ReCoM, CenCal MAC, or the San Francisco ReCoM prior to flight. Riverside County Sheriff's Department, USBP San Diego Sector and Station Special Operations Groups and Intelligence Units in conjunction with OPSG Partners and Task Forces will conduct intelligence-based operations within the San Diego Sector during the time period outlined during the Border Patrol weekly Unified Command meetings, along with the RECOM and OPSG IPT. Sector-wide, high visibility special operations will be performed quarterly with a focus on intelligence based criminal interdiction. The multi-agency, cross jurisdictional special operations will include all the participating agencies below and be coordinated by the Riverside County Sheriff's Department and USBP San Diego Sector. OPSG funds will be used for reasonable operational overtime costs associated with law enforcement activities in support of enhanced border security. Overtime pay is specifically for increased patrol time for certified public safety officers, including, but not limited to, rangers detectives and investigators who will work in a patrol capacity on assigned OPSG shifts, along with other law enforcement support personnel such as communication officers/dispatchers and patrol pilots. Participating agencies may not utilize.OPSG funds to pay for a personnel's ove1iime hours or cost that exceeds I 6 hours worked in any 24-hour period. D. Coordinating Instructions: The San Diego Sector Chief Patrol Agent will have operational oversight and in coordination/collaboration with OPSG stakeholders, will determine which areas will be the focus of operations. San Diego Sector and local paiiicipating agencies will be executing a yearly OPSG operational plan for submission to OBP. San Diego Sector stations will be responsible for OPSG-related enforcement activities and intelligenee sharing within their respective AO Rs. An Incident Command System (ICS) may be utilized to facilitate Sector-wide coordination and monitoring of OPSG activities as warranted during special operations. Sector stations and local/state representatives will ensure daily OPSG activities within their respective AOR are monitored and reported accordingly. Stations will be responsible for reporting OPSG-related intelligence to the Sector Intelligence Unit (SIU) as appropriate. For maritime operations, the RECOM will be responsible for the aforementioned requirements. 6 178 Each of the 6 participating 0PSG agencies will have a designated management representative as noted in the Specific Responsibilities section of this operational plan. Activity Repo1ting: The Daily Activity Report must be submitted to the USBP San Diego Sector, or the participating agency's 0PSG coordinator, within 48-hours of the conclusion of each 0PSG shift. Both sub-recipients and San Diego Sector are responsible to ensure that DARs are submitted in the proper format and in a timely manner. DARs will be submitted using the CBP Operation Stonegarden Data Management System in www.HSIN.gov. Friendly Forces receiving funding through a subrecipient will also need to complete DARs online within 48 hours and submit hard copies of DARs to subrecipient along with the. claims. The San Diego Sector 0PSG Group will be responsible for compiling daily activity reports and SOSO Financial will be responsible for tracking OPSG expenditures. Bi-Weekly Activity and After-Action Reports will be completed by the Sector 0PSG Group and submitted via email to 0BP. Information Sharing: Information from source documents ( e.g. arrest reports, citations, field interviews, etc.) will be entered into www.HSIN.gov. Items of interest will be developed by Intelligence Units and forwarded to appropriate agency/task force for action. Intelligence Products: Intelligence products including mapping, trend analysis, community impact, and.target files will be developed via a collaborative effort between the Intelligence Units and appropriate agency /task force. Performance Metrics: 0PSG impact on border security and public safety will be gauged by several mechanisms: • Statistically tracked events such as traffic stops, citations, misdemeanor/felony arrests, and contraband seizures in 0PSG target areas. • SID evaluation of 0PSG effect on targeted criminal organizations and their activities. 7 179 • Third party indicators ascertained via crime statistical analysis and community impact data developed by Fusion Centers within the San Diego Sector. Regional Scheduling: Each partner agency will send their weekly/bi-weekly/monthly OPSG schedule (whichever applies), utilizing the appropriate f01mat, to the San Diego Sector (SDC) OPSG Points of Contact. Points of Contact: I. Riverside County Sheriffs Department (RCSD) OPSG Rep: Captain Adriaan Roggeveen (760) 578-1621 • Conduct intelligence-based operations targeting transnational criminal organizational activities along 10 15 near lower Highway 74 bordering San Diego county, I-10 and Highway 86, which are critical points of intersection for both Arizona border and southern border oflmperial county. • Conduct high-visibility patrols design to saturate the freeway system and routes of ingress and egress from border counties, using law enforcement presence to deter smuggling activities. 2. Huntington Beach Police Department (HBPD) OPSG Rep: Lieutenant Thoby Archer (714) 536-5694 • Coordinate intelligence-based operations within the Huntington Beach AORa11d adjacent coastal areas ofNewport Beach. • Conduct high-visibility interdiction operations along I-405 to help deter transnational criminal organizational activities. • Conduct harbor and coastal patrols, as well as aerial support, in response to maritime enforcement related to smuggling activities 3. Los Angeles County Sheriffs Department (LASD) OPSG Rep: Commander Jack Ewell (323) 881-7823 Conduct air, land and sea patrols in the vicinity of San Clemente Island, Catalina Island and adjacent coastal areas within Los Angeles County • Conduct operations and patrols as determined by the Los Angeles/Long Beach RECOM, using intelligence and analysis provided by the MAC Intelligence Community (MAC IC) 8 180 • Coordinate efforts through the Los Angeles/Long Beach RECOM and the Maritime Coordination Center (MCC) and provide coastal observation per MAC IC collection requirements for maritime enforcement assets patrolling the immediate coastline • Perform coordinated cyclical intelligence based criminal interdiction operations Utilize LASD dispatchers and/or Lieutenant grade field operations to support high visibility enforcement actions when multiple stakeholders. and/or multiple LASD units are engaged and/or while working under the· res system • Report and de-conflict all OPSG operations through the MCC in Long Beach prior to deployment 4. Seal Beach Police Department (SBPD) OPSG Rep: Sergeant Brian Gray (562) 493-0634 • Conduct intelligence based law enforcement patrols and special operations along the coastline, coastal access points, and flood control access points in the jurisdiction of Seal Beach, in an effort to reduce smuggling and marine interdiction related crimes 5. Laguna Beach Police Department (LBPD) OPSG Rep: Lieutenant Jesse Schmidt (949) 497-0359 • Will provide increased law enforcement patrols, drone surveillance, and special operations throughout the City of Laguna Beach in Orange County in an effort to reduce narcotic smuggling, human h·afficking, and border related crimes. 6. Newport Beach Police Department (NBPD) OPSG Rep: Sergeant Mark Short (949) 644-3610 • The NBPD will conduct bi-weekly overt and covert operations as described in our above schedule along with any additional requests from OPSG coordinators. These operations will entail surveillance, intelligence gathering, and directed enforcement of criminal related activity along our coastline and harbor. These operations will show high levels of law enforcement presence and serve as a criminal deterrent, help to maintain secure borders, reduce human trafficking, and can lead to drug and vehicle seizures, as well as arrests. 9 181 6. La Habra Police Department (NBPD) OPSG Rep: Lieutenant James Tigner (562) 383-4300 • The La Habra Police Department will conduct interdiction operations related to the trafficking of illegal drugs, guns, and money in and around the North Orange County Area. The goal of these operations will be to target and intercept narcotic and illegally owned firearm traffickers, moving to and from the border through the north Orange county region. 6. Costa Mesa Police Department (CMPD) OPSG Rep: Sergeant Jim Brown (714) 754-5058 • The Costa Mesa Police Department will provide increased narcotics enforcement and special operations throughout the City of Costa Mesa and Orange County in an effmt to reduce smuggling and border related crimes. These areas include in and around the 405 freeway, 5 freeway, and the 55 freeway/Newport Boulevard that leads directly into the coastal cities of Orange County. These areas are known critical transit nodes for illicit criminal activity due to their proximity to the US/Mexican border and the California coastline. 6. Hawthorne Police Department (NBPD) OPSG Rep: Lieutenant Christopher Port (310) 349-2801 • the Hawthorne Police Department (HPD) will continue to identify and disrupt targeted transnational criminal organizations (TCO's). The Hawthorne Police Depaitment's effmts will include conducting intelligence-based operations and providing increased law enforcement saturation within its area of responsibility (AOR). HPD will take advantage of the opportunities to collaborate with other regional agencies to increase the intelligence gathering/ sharing and enforcement to collectively target and dismantle human trafficking, weapons, narcotics, criminal transportation cells, and other border-related criminal conspiracies. E. Public/Open Records Requests: In order to accomplish the Operation Stonegarden mission, law enforcement sensitive information is shared between Federal, State, and local law enforcement agencies. This information includes intelligence sharing, CON OPS/ Applications, Operations Orders, Fragmentary Orders, Daily Activity Reports, After Action Reports, and more. OPSG records and documents may contain law enforcement sensitive information. Participating agencies agree to protect OPSG documents in 182 accordance with applicable Federal, State, and local laws. Agencies should, while complying with State and local laws and policies, also notify their local USBP Sector staff when the agency receives a public records request for OPSG documents that were created by USBP. IV. ADMINISTRATION/LOGISTICS A. Cost Estimates/Funding Issues: Reimbursement for OPSG participants will be contingent upon approval of this operational plan, developed jointly between OPSG representatives and CBP/Border Patrol. No operations will commence and/or funds drawn prior to plan approval by OBP. The Riverside County Sheriffs Department will be the OPSG Grant Administrator. Funding for each pmticipant will be approved on a case-by-case basis specific to the operational plan. Enforcement efforts and priorities may be shifted accordingly. The State Administrative Agency (SAA) must report Stonegarden obligations/expenditures via the Categorical Assistance Progress (CAPR)/Biannual Strategy Implementation Reports (BSIR) semi-annually and the Financial Status Report (SF-269a) by calendar quarter. Local and state law enforcement agencies shall not utilize OPSG funding to supplant their inherent routine patrol and law enforcement operations in order to perform activities not directly related to increasing border security. Fringe Benefits for friendly forces: The agencies listed below are not requesting any additio11a/fri11ge benefits. All benefits costs associated witlt OPSG shifts will be covered in overtime costs. • Los Angeles County Sheriffs Department • Costa Mesa Police Department • Hawthorne Police Department • Huntington Beach Police Depmtment 11 183 FY 2023 OPERATION STONEGARDEN RIVERSIDE COUNTY SHERIFF'S DEPARTMENT· SUB·REClPIENT BUDGET TASLE RCSD CMPD HPO HBPD I OVertlnw LHPO • Over 50% in OT funding needs a Personal LBPD cap Waiver request letter LASO NBPD SBPD SBPD (Analyst) RCSD LHPD Fringe Benefits for Law Enf0ttement LBPD NBPD SBPD RCSD: Items l ·5 lHPD: Items 6·7 GeMral Equipment LBPD: Item 8 NBPO: Item 9 SBPD: !terns 10 tlal Equlpmont RCSD: item l Vehicles, W.tt!rtrafl, other type of vehicles CMPD: Item 2 • Needs Justification Letter LBPD: Item 3 SBPD: 11em 4 Regional Capablllty Building Equipment $254,993 $116,263 5106,000 5199,000 $65,776 535,572 $1,858,407 $885,000 $93,642 594,289 $7,872 S16,797 57,652 $515 527,803 51,358 51,367 $114 S174,200 $133,500 520,000 $369,700 $30,000 $12,000 N/A 5225,000 572,000 5434,000 $60,000 577,000 N/A 12 184 Maintenance cost HBPD $26,000 $26,000 RCSD S27,510 Vehlde/Vessel CMPD S2,737 MIieage Cost LHPD $1,572 $39,090 LBPD $4,913 SBPD $2,358 For Deployed LE and/or Federally frav,J, lodging, and Per diem Sponsored N/A $0 (DHS/FEMA) border security task force meetings (IPTs) StateM&A State can take up to 2.5% of total allocation so so from allocation and CountyM&A total county M&A RCSD $145,000 $145,000 a letter must be Sub-redplent's Indirect Indirect Com attached explaining $0 $0 FEMA's agreed cost total percentage Individual total of Unallocated Funds unallocated funds for so $0 each Sub·recipient and friend!\r force Estimated Overtime Estimated Fringe Agency Name Numbers of Officers Estimated Hours Total Estimated Fringe Rate Total RCSD 25 1946 $254,993 6.18% $16,797 CMPD 10 1200 $116,263 0.00% $0 HPD 14 1000 $106,000 0.00% $0 HBPD 30 1360 $199,000 0.00% $0 LHPD 12 768 $65,776 11.67% $7,652 LBPD 15 360 $35,572 1.45% $515 lASD 30 7200 0.00% $0 NBPD 15 960 1.45% SBPD 11 SBPD (Analyst) 1 13 185 Agency Name Item Number AEllt Equipment Name Quantity Price Total RCSD 1 07SE-01-0ENS Oensitv Scanner (Buster) 2 $6,500 $13,000 RCSD 2 030£-02-FIBR CESCO Perfect Vision V20 Vldeoscope 2 $9,100 $18,200 RCSD ' 14SW-02-RAOR Viken Nll1hthawk HBI WAD handhelf X-ray \mager 2 $36,000 $72,000 030E-01-ALPR Mob lie ALPR Systems: To enhance our law enforcement capabllitles to 7 $10,000 $70,000 RCSD 4 collect Information and intelllgence to Increase border security, RCSO 5 030E-02-TILA GTHUNOER Oigltal Vision Goggle Night Vision 4 $250 $1,000 LHPO 6 07C0-020-0LSP TruNarc Analyzer 1 $43,500 $43,500 030E-01-ALPR Fixed ALPR Systems: To enhance our law enforcement capabilities to 6 $15,000 $S0,000 LHPD 7 collect Information and intellivence to Increase border security. 030E-01-ALPR Mobile ALPR Systems: To enhance our law enforcement capabilities to 1 $20,000 $20,000 lBPD 8 collect information and lnte!Ugence to in((ease border securltv. NBPO 9 07CD-01-MONO TruNarcAnalvzer 1 $30,000 $30,000 SBPD 10 14SW-01.VIOA PTZ c.:imeras 2 $6,000 $12,000 :ff;tij~\?X 0~~~-tiws Agency Name Item Number AELlt Equipment Name Quantity Price Total RCSD l 12VE-00-MISS Fullv Outfitted Marked Patrol Vehicle: Use for OPSG Patrols ' $75,000 $225,000 CMPO 2 12VE-OO-MISS Fully Outfitted Marked Patrol Veh!cle: Use for OPSG Patrols 1 $72,000 $72,000 LBPO ' 12VE-OO-MISS Fully Outfitted Marked Patrol Vehicle! Use for OPSG Patrols 1 $60,000 $60,000 SBPD 4 12VE-OO-MISS Fully Outfitted Marked Patrol Vehlcle: Use for OPSG Patrols 1 $77,000 $77,000 i:"%T9~J'£4 f:~t~:j'@f light Costs Helicopte Agency Name Estimated Miles Estimated Mileage Rate Estimated Total RCSD 42,000 $0.655 $27,510 CMPD 4,178 $0.655 $2,737 LHPD 2,400 $0.655 $1,572 LBPD 7,500 $0.655 SBPD 3,600 $0.655 . . . ·• ' ' > .. audoet Narrative Categ'QrY . . . ' . .. A • C D E F . G H I "-GEN_CYNAME . Operatiolla1or' Flfnge Benefits VehicleNeml EqUlpMalnl H~epla«i FuelCosls Mkasi'e A!gh!Cosls MSA TOTAL . Malm Equip ' . . Riverside County Sheritt's Oepartmenl s 254,9~3 s 16,197 s $ -$ 399,200 $ -$27,510 $ $145,000 $ 843,500 Costa Mesa Police OGOartmenl $ 116,263 $ s $ -s 72,000 s -$ 2,737 $ $ -$ 191,000 Hawthorne Pollce Department $ 106,000 s -s -s -$ -$ $ -$ $ -$ 106,000 Huntington Beach Police Department $ 199,000 $ -$ -$ s s $ -$ 26,000 $ -$ 225,000 La Habra Police Department $ 65,776 $ 7,652 $ -$ -$ 133,500 $ $ 1,572 $ -$ -$ 206,500 Laguna Beach Police Department s 35,572 $ 515 $ $ -$ 80,000 $ -$ 4,913 $ $ -$ 121,000 Los Anneles County Sheriffs Department $ 885,000 $ s s -$ -$ -s $ s -$ 885,000 Newport Beach Police oen"artment $ 93,642 $ 1,358 s s s 30,000 s -$ $ $ -$ 125,000 Seal Beach Police Department s 102,161 $ 1,481 s s s 89,000 $ -s 2,358 s -s -$ 195,000 Grand Total Rlvemde Coonty Region $ 1,858.407 $ 27,803 $ . $ . $ 603,700 $ . $39,090 $ 26,000 $145,000 $2,800,000 B. Travel: Not applicable. 14 186 C. Lodging: Not applicable. D. Reception of Detailed Personnel: Not applicable. E. Uniform and Equipment: All personnel assigned to this operation will utilize the approved agency uniform in accordance with each agency Standard Operating Procedure (SOP): No deviations from these SOPs are anticipated. F. Special Equipment: Not applicable. G. Processing: Participating OPSG law enforcement agencies will enforce local and state laws within their jurisdiction and will not enforce immigration laws (Title 8 USC) on behalf of CBP/Border Patrol. Apprehension and seizures will be processed in accordance with existing federal, state, and local laws, policies and guidelines. State felony warrant suspects in CBP/Border Patrol custody will be managed in accordance with existing agreements between the San Diego Sector and local agencies. H. Medical: Medical emergencies will be handled by the closest available medical facility, and in accordance with established departmental policies and procedures of each OPSG participating agency. I. Detention/Transportation: Apprehended individuals will be transpotted in accordance with federal, state and local laws, policies, agreements and guidelines of the arresting agency. J. V chicles: Local and state law enforcement vehicles will be used in support of this operation. Participating agencies will be responsible for the fuel and maintenance of their vehicles. Fuel, mileage, and maintenance costs may be reimbursed in whole or in part for those vehicles utilized in OPSG-related operations. V. COMMAND/CONTROL/COMMUNICATION A. Chain of Command: 15 187 Participating agencies will maintain their individual chains of command as dictated by internal policies and guidelines. U.S. Border Patrol -San Diego Sector Chief Patrol Agent: Patricia McGurk-Daniel Deputy Chief Patrol Agent: Bernardino Soto ACTT Director: Orlando Romero Assistant Chief Patrol Agent: Lewis F. Salling Special Operations Supervisor: Anna M. Sofchek (520) 603-2293 SD Regional Coordinating Mechanism (ReCoM) SOS Ignacio Diaz Jr. (619) 964-7432 Central California Maritime Agency Coordination Group (CenCalMAC) SBPA Richard Wilcox (619) 481-8819 San Francisco ReCoM MAC Border Patrol Agent-Programs Robert Stine (619) 608-0255 B. Unit Command: U.S. Border Patrol Stations: • Boulevard Station • Brown Field Station • Campo Station • Chula Vista Station • Imperial Beach Station • Murrieta Station • San Clemente Station C. Communication Details: ANNEXES Communication protocol will be managed in accordance with each participant agency's existing policy. OPSG communications will be monitored and, as necessary, coordinated by the Incident Command System (I CS) when active. A. Administration Annex: The Riverside County Sheriffs Depa1iment will be the OPSG Grant Administrator. The grant funding for each of the OPSG participants is approved on a case-by-case basis specific to the yearly operational plan. The San Diego Sector Chief Patrol Agent in coordination with the OPSG IPT will determine which areas will be the focus of operations and may shift enforcement efforts and priorities accordingly. Operational 16 188 plans may be amended as necessary. State and local law enforcement agencies shall not use OPSG funding to supplant their inherent routine patrol and law enforcement operations in order to perform activities not directly related to increasing border security. B. Execution Annex: Not applicable. C. Media Action Plan: Inquiries will be directed to the USBP San Diego Sector Information and Communications Division (619) 216-4182. Paiticipating OPSG agencies will manage media inquiries as indicated by their individual departmental policies. D. Legal Review: This operational plan has been reviewed for legal sufficiency by CBP Office of Assistant Chief Counsel. E. Risks: No additional risks have been associated with this Operations Order (OPORD). 17 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-437 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Eric G. Parra, Interim City Manager VIA:Eric Parra, Chief of Police PREPARED BY:Capt. Ryan Reilly and Exec. Asst. Ingrid Ono Subject: Approve and authorize an Intergovernmental Service Agreement between the City of Huntington Beach and the City of Costa Mesa for detention of female arrestees for 647(f) PC (drunk in public) and 11550(a) HS (under the influence of a controlled substance) at the Huntington Beach Police Department Jail Statement of Issue: The City of Costa Mesa has requested the continued use of the Huntington Beach Police Department’s (HBPD) booking and jail facilities in situations where the Costa Mesa Police Department (CMPD) have arrested females for the specific charges of 647(f) PC (drunk in public) and 11550(a) HS (under the influence of a controlled substance). Financial Impact: If the attached Intergovernmental Service Agreement is approved, it is estimated that the City will receive a minimum of $15,000 annually. Recommended Action: Approve and authorize the Mayor and City Clerk to execute “Intergovernmental Service Agreement (“Agreement”) between the City of Huntington Beach (“City”) and the City of Costa Mesa (“Agency”) for detention of arrestees at the Huntington Beach Police Department Jail for the City of Costa Mesa Police Department.” Alternative Action(s): Do not approve the recommended action and direct staff accordingly. Analysis: The City of Costa Mesa cannot accommodate the booking of female detainees at their facility due to space and personnel issues. Statistics provided by the Costa Mesa Police Department indicate they will book approximately four females at the Huntington Beach Police Department’s (HBPD) jail per City of Huntington Beach Printed on 6/12/2024Page 1 of 2 powered by Legistar™189 File #:24-437 MEETING DATE:6/18/2024 month for the specified charges. Housing this number of inmates per month is within HBPD’s capabilities and would not negatively impact jail operations. It is estimated that the bookings from the City of Costa Mesa will generate a minimum of $15,000.00 annually in the General Fund. Environmental Status: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Strategic Plan Goal: Goal 8 - Public Safety, Strategy A - Community-wide comprehensive risk reduction program to optimize public safety's emergency response and reduce the number of calls. Attachment(s): 1. Costa Mesa Jail Agreement City of Huntington Beach Printed on 6/12/2024Page 2 of 2 powered by Legistar™190 191 INTERGOVERNMENTAL SERVICE AGREEMENT ("Agreement") BETWEEN THE CITY OF HUNTINGTON BEACH ("CITY") AND THE CITY OF COSTA MESA ("AGENCY") FOR DETENTION OF ARRESTEES AT THE HUNTINGTON BEACH POLICE DEPARTMENT JAIL FOR THE CITY OF COSTA MESA POLICE DEPARTMENT 1. TERM The term of this Agreement shall be for one (I) year and shall commence upon execution of the Agreement. Unless CITY notifies AGENCY at least (90) days before this Agreement expires, this Agreement shall automatically renew for another one (I) year period and continue for like period each year until cancelled by either party by providing written notice of termination to such other party at least thi11y (30) calendar days prior to the effective date of termination. AGENCY shall pay CITY for any outstanding fees incurred up to effective date of termination for which CITY has not already been previously paid. 2. COVERED SERVICES CITY agrees to the housekeeping, safekeeping, and subsistence of arrestees held in custody of AGENCY in accordance with this Agreement. CITY shall bill AGENCY for the following fees: Each arrestee: $300.00 For arrestees held over 48 hours, an additional: $75.00 per day 3. SUPPORT AND MEDICAL SERVICES CITY agrees to accept and provide for the secure custody, care, and safekeeping of AGENCY'S arrestees in accordance with state and local law standards, policies, procedures, and court orders applicable to the operation of the CITY's facility. The types of arrestees shall be: 1 24-14491/342745 192 A) Adult female; B) Charged with a Misdemeanor Offense 647(£) PC and/or 11550(a) HS C) Able to walk and communicate without assistance D) Medically cleared for booking by a Licensed Physician, if it is determined that there appears to be potential medical/mental health issues. CITY agrees to provide AGENCY's aITestees with the same level of medical care and services provided to the CITY's arrestees, including the transportation and security for arrestees requiring removal from the facility for emergency medical or mental health services. All invoices for all costs associated with hospital and/ or health care services provided to the AGENCY's arrestees outside the CITY'S facility shall be submitted to AGENCY for direct payment by AGENCY to the service provider. CITY shall notify AGENCY, as soon as possible, of all emergency medical or mental health cases requiring removal of mTestees for CITY's facility and to obtain prior authorization for removal for all other medical or mental health services required. If an arrestee requires hospitalization, AGENCY will provide security for a1Testee until the subject can be released or placed in another facility. Persons injured or ill prior to arrival at the CITY's jail facility must have been medically cleared through a licensed physician prior to entry. If the arrestee requires further medical or mental health treatment due to injury, illness, or mental health issues incuITed prior to booking, AGENCY will be responsible for all required transp01i and treatment in association therewith. If AGENCY fails to respond and take custody of such mTestees, AGENCY agrees to reimburse CITY for all costs incuITed by CITY. Costs will be based on the fully burdened 2 24-14491/342745 193 hourly rate of involved personnel and materials. If this requires the use of overtime personnel, AGENCY will be billed at the fully burdened overtime rate for involved staff. CITY shall notify AGENCY of likely cell extractions involving AGENCY'S arrestees when the incidents can be contained and the arrestee does not pose an immediate threat to the safety and security of themselves, other inmates, staff or the facility. In these incidents, AGENCY personnel will respond to the CITY and be responsible for the timely removal of the subject from the CITY. All testing of blood, breath, and/ or urine shall be the responsibility of the AGENCY. CITY reserves the right to deny acceptance of any arrestee due to medical or mental health concerns or operational situations that create an undue burden on the CITY or staff. All AGENCY arrestees shall be returned to the AGENCY by a member of the AGENCY, where they will be released from custody with a written promise to appear (WP A) or released pursuant to California Penal Code Section 849(b )(2). 4. BOOKING AND COURT PACKAGES AGENCY officers will complete required booking packets prior to acceptance of arrestee by CITY. AGENCY shall be responsible for all court packages and release documents. 5. INDEMNIFICATION AND HOLD HARMLESS AGENCY shall protect, defend, indemnify, and hold harmless CITY, its officers, officials, employees and agents from and against any and all liability, loss, damage, expenses, cost (including without limitation costs and fees of litigation of every nature) 3 24-14491/342745 194 arising from or in connection with performance of this Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the CITY. CITY shall protect, defend, indemnify, aud hold harmless AGENCY, its officers, officials, employees and agents from aud against any and all liability, loss, damage, expenses, costs (including without limitation costs aud fees of litigation of every nature) arising from or in connection with performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the AGENCY. 6. FINANCIAL PROVISIONS The billing address of AGENCY is: Chief of Police City of Costa Mesa Police Department 99 Fair Drive Costa Mesa, CA 92626 7. NOTICES Any notice or special instructions required to be given in writing under this Agreement shall be given either by personal delivery to AGENCY or to CITY, as the situation shall wan-ant, or by enclosing the same in a sealed envelope, postage prepaid and depositing the same in the United States Mail, addressed as following: TO CITY: Chief of Police City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 24-14491/342745 4 TO AGENCY: Chief of Police City of Costa Mesa 99 Fair Drive Costa Mesa, CA 92626 195 8. PAYMENT Payment by AGENCY to CITY shall be due by the thirtieth (30 th ) calendar day after receipt by AGENCY ofa proper invoice from CITY. The date of the check issued in payment shall be considered the date payment is made. 9. ATTORNEY'S FEES In the event suit is brought by either party to enforce the te1ms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 10. ENTIRETY The forgoing sets forth the entire Agreement between the parties. 11. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both CITY and AGENCY and approved as to form by the City Attorney. 12. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court or competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 13. COUNTERPARTS This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (I) and the same instrument. 5 24-14491/342745 196 IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed by and through their authorized agents /officers on ____________ , 2024 . CITY OF COSTA MESA, a municipal corporation of the State of California Chief of Police City Manager City Clerk APPROVED AS TO FORM City Attorney 24-14491/342745 6 CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Mayor ~AN Chief of Police TO FORM 197 Attachment "A" Personnel Hourly Overtime Rate Detention Officer $77.46 Detention Nurse Officer $81.41 Detention Shift Supervisor $88.64 Police Officer $126.24 Police Sergeant $149.26 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-444 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Eric G. Parra, Interim City Manager VIA:Chau Vu, Director of Public Works PREPARED BY:Bob Stachelski, Traffic and Transportation Manager Subject: Approve and authorize the execution of Amendment No. 1 to Existing Cooperative Agreement with the Orange County Transportation Authority (OCTA) for the I-405 Freeway Improvement Project Statement of Issue: On September 19, 2023, the City Council approved to enter into Cooperative Agreement No. C-3- 2654, between the City of Huntington Beach and the Orange County Transportation Authority (OCTA) to facilitate administration permitting, staffing, and construction of the I-405 Freeway Improvement Project and provide a mechanism to reimburse the City for expenses incurred as a result of the Project. Staff is asking to extend that agreement by six (6) months through December 31, 2024. Financial Impact: Execution of this amendment will allow the City of Huntington Beach to receive reimbursement for direct expenses and staff time in support of the completion of the I-405 Freeway Improvement Project. Recommended Action: Approve and Authorize the Interim City Manager to execute “Amendment No. 1 to Agreement No. C- 3-2654 Between Orange County Transportation Authority and City of Huntington Beach for the I-405 Improvement Project.” Alternative Action(s): Do not approve the recommended action and direct staff accordingly. Analysis: The City of Huntington Beach, along with other corridor agencies, has been actively working with Orange County Transportation Authority (OCTA) for more than 20 years to pursue the improvement of Interstate 405 from the Interstate 605 interchange to the State Route 73 interchange. The initial City of Huntington Beach Printed on 6/12/2024Page 1 of 2 powered by Legistar™198 File #:24-444 MEETING DATE:6/18/2024 goal of this effort was to help ensure that the corridor would provide sufficient capacity and operations to support transportation needs for the next 20 to 30 years. The initial planning and design efforts culminated in the funding of construction and hiring of OC405 Partners in January 2017 to complete the project under a design-build delivery method. Prior to awarding the design-build contract, OCTA recognized that each of the corridor agencies would be required to provide significant staff resources in support of the project including: ·Plan Review ·Permitting ·Emergency Services ·Inspections ·Public Outreach ·Administration ·Contract Services ·Coordination with OCTA, OC405 Partners, Caltrans, and corridor agencies The City of Huntington Beach entered into Cooperative Agreement No. C-3-2654 with OCTA in October 2023 to extend the City’s participation in the administration, permitting, and staffing of the ongoing construction of the I-405 Freeway. The agreement formalizes the City’s participation and roles, as well as its ability to receive reimbursement for expenses related to City support services and expenses the City may incur due to project construction. The current agreement has an expiration date of June 30, 2024. However, additional delays in finalizing several elements of the project will extend the timeline past the expiration date. OCTA anticipates that all work will be completed by the end of 2024 and therefore, this amendment would extend the agreement to the anticipated completion date. Environmental Status: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Strategic Plan Goal: Goal 2 - Fiscal Stability, Strategy A - Consider new revenue sources and opportunities to support the City's priority initiatives and projects. Attachment(s): 1. Amendment No. 1 to Agreement No. C-3-2654 2. OCTA Cooperative Agreement No. C-3-2654 3. PowerPoint Presentation - Amendment to Cooperative Agreement C-3-2654 City of Huntington Beach Printed on 6/12/2024Page 2 of 2 powered by Legistar™199 200 1 2 3 4 5 6 AMENDMENT NO. 1 TO AGREEMENT NO. C-3-2654 BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY AND CITY OF HUNTINGTON BEACH FOR 1-405 IMPROVEMENT PROJECT THIS AMENDMENT NO. 1, is effective this __ day of----~ 2024, by an 7 between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, 8 Orange California 92863-1584, a public corporation of the State of California (herein referred to a 9 "AUTHORITY") and the City of Huntington Beach, 2000 Main Street, Huntington Beach, Californi 10 92648, a municipal corporation duly organized and existing under the constitution and laws of th 11 State of California (herein referred to as "CITY") each individually known as "Party" and collective! 12 known as the "Parties". 13 WITNESSETH: 14 WHEREAS, by Agreement No C-3-2654 dated October 6, 2023 (Agreement), AUTHORIT 15 and CITY entered into a cooperative agreement, in cooperation and partnership with the Californi 16 Department of Transportation, herein referred to as "CAL TRANS", for the specific terms, conditions, 17 and funding responsibilities between the AUTHORITY and CITY for improvements defined as adding 18 one general purpose lane from Euclid Street to Interstate 605 (l-605), plus adding an additional media 19 lane which will be combined with the existing high-occupancy vehicle (HOV) lane and operated a 20 dual express lanes in each direction of the Interstate 405 (1-405) from State Route 73 (SR-73) to 1-605, 21 replacing and/or widening structures, and other additional geometric and interchange improvements, 22 including improvements to CITY-owned and operated streets, and traffic facilities hereafter referred t 23 as CITY FACILITIES potentially impacted by this project, all of which are hereafter referred to a 24 "PROJECT'; and 25 WHEREAS, CITY and AUTHORITY agree to extend the term of the Agreement by six (6 26 months through December 31, 2024 to allow for contract acceptance and closeout of the PROJECT; 27 and 28 1 of2 343606 201 1 WHEREAS, the CITY's City Council approved this Amendment No. 1 on the ___ day o 2 -------' 2024. 3 NOW, THEREFORE, it is mutually understood and agreed by the AUTHORITY and CITY tha 4 the Agreement, is hereby amended in the following particulars only: 5 1. Amend ARTICLE 10. ADDITIONAL PROVISIONS, page 14 of 17, paragraph A , lin 6 21, to delete "June 30 , 2024" as the expiration date of the Agreement and , in lieu thereof, inse 7 "December 31, 2024 ." 8 The balance of Agreement No . C-3-2654 , as amended, remains unchanged . 9 IN WITNESS WHEREOF , the parties hereto have caused this Amendment No . 1 t 10 Agreement No. C-3-2654 to be executed as of the date of the last signature below. 11 12 13 CITY OF HUNTINGTON BEACH 14 By :----------- Eric Parra 15 Interim City Manager 16 ATTEST: 17 18 By :---------- Robin Estanislau 19 20 21 22 23 24 25 26 27 28 343606 City Clerk APPROVAL RECOMMENDED: ByL;:(1b !) Chau u 4 Public Works Director ORANGE COUNTY TRANSPORTATION AUTHORITY By :------------- Lydia Bily nsky Department Manager, Capital Projects APPROVED AS TO FORM: By :------------- 2 of2 James M. Don ich General Counsel 202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Distributed 10/10/2023 Accounting CAMM FPA PM J Mills , D Mak , D Bui , S Grish Vendor ✓ CAMM R Hashem COOPERATIVE AGREEMENT NO. C-3-2654 BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY AND CITY OF HUNTINGTON BEACH FOR 1-405 IMPROVEMENT PROJECT THIS COOPERATIVE AGREEMENT (Agreement), is effective this 6th day of ___ O_c_t _ob_e_r __ , 2023 (Effective Date), by and between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, Orange California 92863-1584, a public corporation of the State of California (herein referred to as "AUTHORITY") and the City of Huntington Beach, 2000 Main Street, Huntington Beach, California 92648, a municipal corporation duly organized and existing under the constitution and laws of the State of California (herein referred to as "CITY") each individually known as "Party'' and collectively known as the "Parties". RECITALS: WHEREAS, AUTHORITY, in cooperation and partnership with the California Department of .. Transportation, herein referred to as "CAL TRANS", is proposing to reduce congestion and improve lane continuity through the Interstate 405 (l-405) corridor with improvements to mainline and interchanges on the 1-405 between State Route 73 (SR-73) and Interstate 605 (l-605); and WHEREAS, the improvements are generally defined as adding one general-purpose lane from Euclid Street to 1-605, plus adding an additional median lane which will be combined with the existing high-occupancy vehicle (HOV) lane and operated as dual express lanes in each direction of the 1-405 from SR-73 to 1-605, replacing and/or widen ing structures, and other additional geometric and interchange improvements, including improvements to CITY-owned and operated streets, and traffic facilities hereinafter referred to as CITY FACILITIES potentially impacted by this project, all of which are hereinafter referred to as "PROJECT". Page 1 of 17 □ □ □ 203 1 2 3 4 5 .6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 WHEREAS; AUTHORITY has hired a design-build team, OC405 Partners; JV, herein referred to as "CONTRACTOR", to design; and construct PROJECT via a design-build delivery method, and design-build contract was executed January 31, 2017. Contract documents (CONTRACT DOCUMENTS) refer to all documents as part of the contract with OC405 Partners, JV; and· WHEREAS, Cooperative Agreement C-5-3614 between AUTHORITY and CITY concerning this Project has expired on April 30, 2023,; and WHEREAS, this Cooperative Agreement defines the specific terms, conditions, and funding responsibilities between the AUTHORITY and CITY regarding the design and construction of PROJECT in regards to CITY FACILITIES through Project closeout anticipated June 30, 2024; and WHEREAS,·AUTHORITY is the sponsor and the primary funding agency for PROJECT; and WHEREAS, CITY-owned and operated utilities will be subject to an utility agreement(s) and separate from, and outside of this Agreement; and WHEREAS, PROJECT is located within and adjacentto the CALTRANS right of way in the Cities of Costa Mesa, Fountain Valley, Huntington Beach, Westminster, Garden Grove, Seal Beach, Los Alamitos, and County of Orange; and WHEREAS, AUTHORITY has contracted with Parsons Transportation Group, Inc., as the . . Program Management Consultant (PMC) for this. PROJECT, to assist with the administration and oversight of the procurement, and design and construction phases of PROJECT; and WHEREAS, AUTHORITY has contracted with Jacobs Project Management Co., as the Construction Management Consultant (CMC) for this PROJECT, to assist with the administration and oversight of the procurement, and construction phases of PROJECT; and WHEREAS, AUTHORITY agrees to acquire right of way; and · WHEREAS, AUTHORITY shall ensure CONTRACTOR's compliance with all applicable requirements contained in this Agreemerit;. and · WHEREAS, CITY FACILITIES will potentially be impacted by PROJECT, and AUTHORITY desires to collaborate with CITY during the design and construction of PROJECT; and Page2 of 17 204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 WHEREAS, AUTHORITY will provide contract administration for all phases of PROJECT work on CITY FACILITIES, and work within CITY right of way , while adhering to State, Federal , and CITY standards and requirements , as applicable; and WHEREAS , AUTHORITY will reimburse CITY for actual costs for CITY SERVICES, as related to improvements to CITY FACILITIES , and defined as : • Review and approval of plans, specifications, and other pertinent engineering plans, and reports , and for oversight construction inspection services • Review and acceptance of Transportation Management Plan (TM P) • Traffic engineering , and oversight detour inspections • CITY police services; and WHEREAS, AUTHORllY has paid to CllY, in the amount of Six Hundred Eighty Two Thousand Seven Hundred Thirty Seven Dollars ($682,737), for pavement mitigation costs, as quantified and priced by the AUTHORITY, and identified in the Structural Pavement Investigation and Report, 1-405 Final Concept Detour Routes Impact Study, 1-405 Improvement Project, dated October 11, 2018; and WHEREAS, in addition to the pavement mitigation reimbursement by AUTHORITY as set forth above, Parties agree to assess and evaluate actual post-construction impacts to CITY streets, on a case- by case basis, as a result of PROJECT'S signed, long-term detours within CITY's jurisdiction, as well as the costs of mitigating such impacts, if any; and WHEREAS, CllY agrees to manage its staff and consultants to provide CITY SERVICES within the Maximum Obligation amount as amended herein; and WHEREAS, AUTHORllY's Board of Directors authorized this Agreement on the 12th day of June 2023;and WHEREAS, CITY's City Council approved this Agreement on the 19t h day of September , 2023. NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as follows : I Page 3 of 17 205 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3~2654 ARTICLE 1. COMPLETE AGREEMENT. A. This Agreement, including any attachments incorporated herein and made ~pplicable by reference, constitutes the complete and exclusive st~tement of the term(s} and -conditions(s) of this Agreement between AUTHORITY and CITY and it supersedes all prior representations, understandings, and communications. The invalidity in whole or in part of any term or condition of this Agreement shall not affect the validity of other term(s) or conditions(s) of this Agreement. The above.referenced Recitals are true and correct and incorporated by reference herein. 8. AUTHORITYS' failure to insist on any instance(s) of Cl1Y's performance of any term(s) or condition(s) of this Agreement shall notbe construed as a waiver or relinquishment of AUTHORl1Y's right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon AUTHORITY except when specifically confirmed in writing . by an authorized representative of AUTHORITY by way of a written amendment to this Agreement and issued in accordance with the provisions of this Agreement. C. CITY's failure.to insist on any instance(s) of AUTHORITY's performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to such performance or to future performance of such term(s) or condition(s), ahd AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon CITY except when specifically confirmed in writing by an authorized representative of CITY by way of a written amendmentto this Agreement and issued in accordance with the provisions of this Agreement. ARTICLE 2. SCOPE OF AGREEMENT This Agreement specifies the roles and responsibilities of the Parties as they pertain to . the subjects and projects addressed herein. Both AUTHORITY and,CITY agree that each will cooperate and coordinate with the other in all activities covered by this Agreement and any amendments to this Agreement. Page4 of 17 206 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. c.;3-2654 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY AUTHORITY agrees to the following responsibilities for PROJECT: A. To be the sponsor and funding agency to manage and administer the design-build contract for PROJECT, which includes preliminary engineering, right of way acquisition, , and other related services, including improvements to CITY FACILITIES which are necessary as part of PROJECT. B. To perform right of way acquisition and right of way certification for PROJECT, and specifically, for CITY FACILITIES, if necessary. C. To include within the CONTRACT DOCUMENTS, in regard to CITY FACILITIES, design criteria which meets acceptable CITY standards, and are applicable at the time of Contract execution. This responsibility was achieved through, and referenced in, Cooperative Agreement C-5-3614. D. To coordinate with CITY during the development of the CONTRACT DOCUMENTS, and afford the CITY the opportunity to review, and comment on the CONTRACT DOCUMENTS, in regard to CITY FACILITIES, and in accordance with the terms of this Agreement. This responsibility was achieved through, and referenced in, Cooperative Agreement C-5-3614. E. The CITY review times will be applicable to the design and construction of PROJECT in regard to CITY FACILITIES. AUTHORITY will hold Joint Resolution Meetings (JRT) with CITY to resolve CITY comments and obtain approvals, if applicable. F. To coordinate the design and construction of PROJECT with the CITY and hold regular technical and partnering meetings to brief the CITY on the status of PROJECT, solicit input, and provide a forum to discuss and resolve PROJECT issues which impact the CITY. G. To comply with all requirements of the Final Environmental Impact Report/Environmental Impact Statement (FEIR/FEIS) for the PROJECT, including but not limited to the preparation and processing of any, and all supplemental environmental documents, including those required for CITY FACILITY improvements as part of PROJECT. I I Page 5 of 17 207 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPER!\ TIVE AGREEMENT NO. C-3-2654 H. If AUTHORITY encounters hazardous, archeological, paleontological, cultural, or other protected materials and/or species within any existing or future CITY-owned right of way for the· CITY FACILITIES, AUTHORITY shall notify the CITY and responsible controi agencies of such discovery. I. The costs for any remediation or protection for Article 3, Paragraph H, shall be covered as a PROJECT cost, provided that AUTHORITY may seek reimbursement from other third parties which may be jointly or severally liable for such removal or protection. J. To protect in place, rearrange or relocate after CITY consultation and concurrence, CITY owned public utility facilities found to be in conflict with PROJECT. All conditions of this clause shall be subject to utility agreements which are separate from, and outside of this Agreement. K. To secure and comply with any, and all other governmental and/or regulatory approvals, permits and/or clearances required for the design and construction of CITY FACILITIES included in PROJECT. L. In the event CITY requests additional improvements, they shall be · evaluated and processed in accordance with Article 4, Paragraph L, of this Agreement. M. To implement a Quality Management Plan during all phases of PROJECT. N. To monitor all PROJECT activities to ensure compliance with the approved PROJECT schedule, quality and budget goals of PROJECT. 0. To obtain concurrence for permanent easements, if required, for CITY FACILITIES. P. To facilitate discussion between CITY, local agencies, and others regarding resolution of ownership, operation, and maintenance of CITY FACILITIES. Q. To coordinate with CAL TRANS and CITY for preparation and execution of Maintenance Agreements. R. To convey ownership of any property acquired by AUTHORITY for PROJECT, and which is necessary for CITY FACILITIES upon completion of the CITY FACILITIES, and title to such right of way having been acquired by AUTHORITY. Conveyance of such property to the CITY shall be completed I Page 6 of 17 208 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 through an executed Property Transfer Agreement with AUTHORITY. AUTHORITY shall convey such property in a condition acceptable to the CITY and in accordance with CAL TRANS' Right of Way Manual. s. To require CONTRACTOR to submit to CITY, for review and approval, including but not limited to, plans, specifications, and other pertinent engineering plans, and reports, for CITY FACILITIES prior to construction thereof. During construction, CITY may provide construction oversight inspection services. Such reviews and approvals, and construction oversight inspection services (CITY SERVICES) ' ' shall be in accordance with the CONTRACT . DOCUMENTS, and reimbursable to CITY by this Agreement. T. To require CONTRACTOR to implement all applicable elements of the approved Transportation Management Plan· (TMP) and TMP amendments.. The TMP addresses construction~ related impacts to existing CITY street traffic, and includes normal traffic handling requirements during PROJECT construction including staging, lane closures, re-striping, detours, and signalization, and specifies requirements for communicating with the public and local agencies during construction. Modifications to streets, intersections, signals, etc., required to address traffic impacts during construction will be borrie as a PROJECT cost. Such review and acceptance of TMP (CITY SERVICES) shall be in accordance with the CONTRACT DOCUMENTS, and reimbursable to CITY by this Agreement. u. V. To obtain a written acceptance ofTMP amendments from CITY. To reimburse the CITY for its actual costs for oversight detour inspections, traffic engineering services (including staff overhead and third-party traffic signal maintenance service costs contracted out by CITY), and police services (including overtime costs). Ongoing deployment of police services related to PROJECT traffic management will require prior approval by AUTHORITY. Such. traffic engineering, oversight detour inspections, and police services (CITY SERVICES) shall be in accordance with the CONTRACT DOCUMENTS, and reimbursable to CITY by this Agreement. w. X. To monitor and ensure CONTRACTOR compliance with the TMP. To work collaboratively with CITY to prepare a methodology for approval by Parties, for post-detour analysis of pavement conditions of CITY streets that were used for signed, long~term and Page 7 of 17 209 1 2 3 4 5. 6 7 8 9 10- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 alternate route detours. As part of the pre-detour analysis of pavement conditions of CITY streets, AUTHORllY has previously reimbursed CITY the amount of Six Hundred Eighty Two Thousand Seven Hundred Thirty Seven Dollars ($682,737), for pavement mitigation costs; as quantified and priced by the AUTHORITY, and identified in the Structural Pavement Investigation and Report, 1-405 Final Concept Detour Routes Impact Study, 1-405 Improvement Project, dated October 11, 2018. The pre-detour pavement analysis identified CITY street segments that were determined to need pavement repair due to signed, long-term and alternate route detours, based on the existing pavement conditions and forecasted ·.impacts· resulting. from the PROJECT. Analysis of post-detour pavement conditions for signed, long-term and alternate route detours, will be performed when the respective detour(s) is no longer needed. Parties will agree on the final AUTHORITY reimbursement cost for the individual detours upon review of the post-detour pavement analysis for each specific detour, at which time CITY can invoice for that agreed upon cost. Pavement mitigation amounts for street pavement repairs (CITY SERVICES) shall be in accordance with the CONTRACT DOCUMENTS, and reimbursable to CllY by this Agreement and applicable amendments. Y. To require CONTRACTOR to repair street pavements that receive damage as a result of construction. CONTRACTOR will be required to adhere to CITY's requirements for removal and replacement of pavement in accordance with the CONTRACT DOCUMENTS and this Agreement. Z. To require CONTRACTOR to obtain a no fee encroachment permit from CITY prior to commencing construction of PROJECT. Provided all conditions. of such permit have been fulfilled, the permits shall authorize CONTRACTOR to commence work within CITY right of way, or areas which affect CITY FACILITIES. AA. To monitor and ensure CONTRACTOR compliance with CITY's permit. BB. To implement a Public Awareness Campaign during PROJECT that advises CITY, local businesses, residents, elected officials, motorists, and media, of construction status, street detours, and ramp and freeway closures, if and where applicable. CC. To provide PROJECT closeout activities, including walk-through, punch list, final payment Page 8 of 17 210 1 2 3 4 5 6 7 8 9 10 1_1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 accounting, and furnish approved "As-builts" to CITY for CITY FACILITIES. _ DD. To develop, for CITY, a record of suNey, final maps, and all necessary title transfers relative to PROJECT. EE. To reimburse CITY for combined costs identified· as "CITY SERVICES", and in accordance With the attached SCHEDULE A, "REIMBURSEMENT -SCHEDULE FOR COMBINED CITY SERVICES." EE. To reimburse CITY for actual costs, within 30 days from receipt of an acceptable invoice, which is complete, properly prepared and complies with the requirements of ARTICLE 5, REQUEST FOR REIMBURSEMENT, below. FF. AUTHORITY's reimbursement for CITY SERVICES will not exceed the combined · maximum amount shown on SCHEDULE A. GG. To perform ·an work associated With the PROJECT at no cost to the CITY, unless specifically provided otherwise herein orin any amendment to this Agreement. HH. To cause all contractors and vendors who perform Work or provide supplies for CITY FACILITIES to name the CITY as an additional insured on policies of insurance wherein AUTHORITY requires CITY to be named as an additional insured and, prior to the commencement of work, provide certificates of insurance to CITY showing the CITY as an additional insured. ARTICLE 4. RESPONSIBILITIES OF CITY CITY agrees to the following responsibilities for PROJECT: A. To collaborate and cooperate with AUTHORITY during the development of the CONTRACT DOCUMENTS and during the design and construction of PROJECT. B. To provide CITY SERVICES for PROJECT as agreed by CITY and AUTHORITY. C. To review, and provide ·comment on, in a timely manner, and in accordance with the CONTRACT DOCUMENTS and this Agreement,-all plans and other submittals related to PROJECT, and approve and/or.concur with AUTHORITY or CONTRACTOR's submittals when CITY determines such submittals comply with CITY's standards and criteria to facilitate AUTHORITY's delivery of PROJECT. Page 9 of 17 211 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 D. To make available to AUTHORITY all necessary CITY regulations, policies, procedures, manuals, standard plans, and specifications required for the construction of PROJECT when requested by AUTHORITY. E. To attend and participate in the PROJECT's regular technical and partnering meetings for AUTHORITY to brief CITY on the status of PROJECT, and to provide a forum to discuss and to resolve CITY's concerns and issues. F. To make reasonable efforts and devote reasonable resources for the issuance of encroachment permits, and other necessary permits, if applicable, to CONTRACTOR at no fee, and upon CONTRACTOR's compliance with permit requirements, to not cause delay to PROJECTS' construction schedule. Such permits shall authorize CONTRACTOR to commence work within CITY right-of-way, or areas which affect CITY FACILITIES. . . G. To make necessary efforts to coordinate and cooperate with AUTHORITY, its agents, and contractors, to meet or exceed design-build schedule criteria as identified by AUTHORITY. H. To waive any moratorium on the excavation or trenching work on CITY streets that were recently res·urtaced where such excavation or trenching are necessary for PROJECT. · CONTRACTOR will be required to adhere to CllY's requirements. for· the removal and replacement of pavement in accordance with the CONTRACT DOCUMENTS and this Agreement. I. To cooperate with AUTHORITY and use its best efforts to cause the rearrangement or relocation of all municipal and public utility facilities, in accordance with applicable State or local franchises or laws, that may be determined by the AUTHORITY and the CITY to be within CITY's jurisdiction and pose a conflict with the PROJECT. The CITY hereby agrees to exercise and invoke its rights under any applicable State or local franchises or laws, or any prior rights ot superior rights the CITY may have to effectuate such rearrangement or relocation at the expense of.the affected public utility as necessary to conform to PROJECT. The CITY shall cooperate with the AUTHORITY and provide all appropriate and necessary support fo achieve this result. In the event the public utility fails to make the rearrangement or relocation or fails to agree to make the rearrangement or relocation in a timely Page 10 of 17 212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3.;2654 manner, the CITY· shall assign its rights as they apply to such rearrangement or relocation as necessary to permit the AUTHORITY to cause rearrangement or relocation in a timely manner: The CITY shall cooperate with the AUTHORITY, provide assistance to the AUTHORITY as needed, and join with the AUTHORITY as a party in the prosecution or defense of the CITY's and the AUTHORITY'.s rights under the laws ofthe State of California to cause such rearrangements or relocations. Wherever possible, any rearran.gement or relocation ofa public utility shall be made to an area covered by a State or local franchises or laws. All conditions of this clause shall be subject to utility agreements which are separate .from and outside of this Agreement J. To agree to take ownership of property acquired by AUTHORITY far PROJECT, and which is necessary for CITY FACILITIES upon completion of the CITY FACILITIES, and title to such right of way having been acquired by AUTHORllY. Conveyc;1nce of such property to the CITY shall be completed through an executed Property Transfer Agreement with AUTHORllY. AUTHORITY shall convey such property in a condition acceptable to CllY and in accordance with CAL TRANS Right of Way Manual. K. To accept operation and maintenance of the CITY FACILITIES, or portion thereof, upon their acceptance by AUTHORITY, and based upon the AUTHORITY's written · certification that the AUTHORITY has complied with all terms of the Agreement. The acceptance of the CITY FACILITIES and written certification shall not unreasonably be withheld. CllY acknowledges that CITY FACILITIES may be completed at different times and accepted in different stages of PROJECT .. L. In the event CITY requests additional CITY FACILITY improvements to be incorporated into PROJECT, CITY shall be solely responsible for all costs and expenses related thereto, including: 1)the costs incurred to incorporate the improvements into thePROJECT's scope of work; 2) additional design, construction and oversight costs arising from or associated .with the improvements, including change orders related thereto; 3) additional operations and maintenance costs arising from or associated with the improvements, including change orders related thereto; and 4) costs associated . with any impact on the desigri and construction schedule as~ociated with the improvements, including Page 11 of 17 213 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEM~NT N_O. C-3-2654 any associated PROJECT delay costs .and damages. This is not intended to eliminate mitigations for required PROJECT changes identified during construction. AUTHORITY, at its sole discretion, may agree to incorporate such CITY FACILITY improvements, via an amendment to this Agreement; ideritifying the CITY FACILITY improvements, estimated costs, and· funding sources from CITY for these improvements. M. To submit monthly invoices ta AUTHORITY for work completed and actual costs incurred by CITY fat CITY SERVICES, pursuant to ARTICLE 5. REQUEST FOR REIMBURSEMENT. CITY shall submit final ·invoice no later than ninety (90) days after final acceptance of PROJECT. Any costs in excess of the -amounts specified herein shall not be incurred without a written amendment to this Agreement. ARTICLE 5~ .REQUEST FOR REIMBURSEMENT -In orderfor CITY to be reimbursed for incurred costs relative to PROJECT, CITY agrees: A. To_ prepare and submit to AUTHORITY a monthly· invoice with supporting documentation. CITY's invoice shall include allowable PROJECT costs incurred and paid for by CITY. . . The invoice submitted by CITY shall be signed by an authorized agent who can duly certify the accuracy of the included information. B. C. The invoice shall be submitted on CITY's letterhead. The invoice shall be submitted by CITY, and in duplicate, to AUTHORITY's Accounts Payable Office. Each invoice shall include the following information: . . 1. Agreement Number C-X-XXXX 2. The total of PROJECT expenditures shall specify the percent and amount of funds -to be reimbursed, and include support documentation for all expenses invoiced. 3. Adequate detail describing all work completed. 4. Such other information as requested by AUTHORITY. D. Ta consult with AUTHORITY's Project Manager for questions regarding non-reimbursable expenses. Page 12 of 17 214 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 E. That total payments shall not exceed the maximum obligation specified in ARTICLE 7. MAXIMUM .OBLIGATION. ARTICLE 6. DELEGATED AUTHORITY The actions required to· be taken by CITY in the implementation of this Agreement are delegated to its CITY's Public Works Director, or designee, and the actions required to be taken by AUTHORITY in the implementation of this Agreement are delegated to AUTHORllY's Chief Executive Officer or designee. ARTICLE 7. MAXIMUM OBLIGATION Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and CITY mutually agree that AUTHORITY's maximum cumulative payment obligation hereunder shall be Two Hundred Thousand dollars ($200,000), unless agreed to and amended by both Parties. ARTICLE 8. AUDIT AND INSPECTION AUTHORITY and CITY shall maintain a complete set of records in accordance with generally accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and other data and records of CITY for a period of four (4) years after final payment, or until any on-going audit is completed. For purposes of audit, the date of completion of this Agreement shall be the date of AUTHORITY's payment of CITY's final billing (so noted on the invoice) under this Agreement. AUTHORITY shall have the right to reproduce any such books, records, and accounts. The above provision with respect to audits shall extend to and/or be included in contracts with CITY's contractor or consultant. ARTICLE 9. INDEMNIFICATION A. To the fullest extent permitted by law, CITY shall defend (at CITY's sole cost and expense with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold harmless AUTHORllY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration Page 13 of 17 215 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C"".3~2654 awards, settlements, darr_iages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims'), including but notlimited to Claims arising from injuries to or death of persons (CITY's employees included), for damage to property, including property owned by AUTHORITY, or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent acts, omissions or willful misconduct of CITY, its officers, directors, employees or agents in connection with or arising out ofthe performance of this Agreement. B. To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY's sole cost and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless CITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from and against any and all liabilities, actioris; suits, claims, demands, losses, costs, judgments, arbitration awaros, settlements, damages, demands, orders, penalties, and expenses including leg;;il costs and attorney fees (collect_ively "Claims~), including but not limited to Claims arising from injuries to or death of persons (AUTHORITY's employees included), for damage to property, including property owned by CITY, or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent acts, omissions or willful misconduct· of AUTHORITY, its officers, directors, employees or agents in connection with or arising out of the performance of this Agreement. C. The indemnification and defense obligations of this Agreement shall survive its expiration or termination. ARTICLE 10. ADDITIONAL PROVISIONS A. Term of Agreement: The term of this Agreement shall be in full force and effect through June 30, 2024. B. Termination:·1n the event either Party defaults in the performance of its obligations under this Agreement or breaches any of the provisions ofthis Agreement, the non-defaulting Party shall provide written notice to the defaulting Party to cure such default within thirty (30) days of such default. If the default cannot be cured within such time, as determined by the non-defaulting Party, then the defaulting Party shall have such additional time as provided in the written notice or such time as the Parties may Page 14 of 17 216 1 2 3 4 5 6. 7 8 9 10 11 12 13 14 15 COOPERATIVE AGREEMENT NO. C-3-2654 otherwise agree in writing. In any event, the non-defaulting Party shall promptly take such actions as are reasonably_necessary to cure the default. If the default or breach is material and not cured within the time provided herein, either Party has the option, in addition to any other remedies available at law, to terminate this Agreement upon thirty (30) days' prior written notice to the other Party. C. Compliance with All Laws: AUTHORITY and CITY shall.comply with all applicable federal, state, . and local laws, statues, ordinances and regulations of any governmental authority having jurisdiction over the PROJECT. D. Legal Authority: AUTHORITY and CITY hereto warrants that the persons executing this Agreement are authorized to execute this Agreement on behalf of said Parties and that by so executing this Agreement, the Parties hereto are formally bound ta the provisions of this Agreement. E. Severability: If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each· term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. F. Counterparts of Agreement: This Agreement may be executed and delivered in any 16 . number of counterparts, each of which, when executed and delivered shall be deemed an original and all 17 · of which together shall constitute the same agreement. Facsimile signatures will be permitted. 18 G. Force Majeure: Either Party shall be excused from performing its obligations under this 19 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable 20 cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God; 21 commandeering of material, products, plants or facilities by the fed«::!ral, state or local government; national 22 fuel shortage; or a material act or omission by the other Party; when satisfactory evidence of such cause 23 is presented to the other Party,· and .provided further that such nonperformance is unforeseeable, beyond 24 . the control and is not due to the fault or negligence of the Party not performing . 25 26 H. . Assignment: Neither_ this Agreement, nor any of the Parties' rights, obligations, duties, or authority hereunder may be assigned in whole or in part by either Party without the prior written consent Page 15 of 17 217 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 of the other Party in its sole and absolute discretion. Any such attempt of ass ignment shall be deemed void and of no force and effect. Consent to one ass ignment shall not be deemed co nsent to any subsequent assignment , nor the waiver of any right to consent to such subsequent assignment. I. Governing Law: The laws of the State of California and applicable loca l and federal laws , regulations and guidelines shall govern this Agreement. J . Litigation fees: In the event that either Party to this Agreement shall commence any legal or equ itable action to enforce o r interpret this Agreement, the prevailing party s hall be entit led to recove r its costs of suit, including reasonable costs and attorney's fees as determined by the court. K. Notices: Any notices , requests , or demands made between the Parties pursuant to t his Agreement are to be directed as follows : I I I I I I To CITY City of Huntington Beach Public Works Department 2000 Main Street Huntington Beach , CA 92648 Attention: Chau Vu Acting Director of Public Works Tel : (714) 374 5345 Email: cvu@surfcity-hb.org To AUTHORITY Orange County Transportati on Authority 550 South Main Street P.O . Box 14184 Orange, CA 92863-1584 Attention: Ms . Reem Hashem Section Manager, Capital Projects Tel: (714) 560-5446 Email: rhashem@octa .net Page 16 of 17 218 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-3-2654 This Agreement shall be made effective upon execution by both Parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C-3-2654 to be executed as of the date of the last signature below. CITY OF HUNTINGTON BEACH By:/~ tony Strickland Mayor ATTEST: By: r v ~aM_f au-- obin Estanislau City Clerk APPROVAL RECOMMENDED: ORANGE COUNTY TRANSPORTATION AUTHORITY JJatreU f. Johr1soM By: Darrell E. Johnson (Oct 6, 2023 08 :57 PDT) Darrell E. Johnson Chief Executive Officer APPROVED AS TO FORM: By: Jame s Don · Oct 5, 2023 09:40 PDT ) James M. Donich General Counsel APPROVAL RECOMMENDED: By: ~____Jiy:-J• sGBe;J(Oct5,202312'12 PDT ) Chau Vu James G. Beil, P.E. Public Works Director Executive Director, Capital Programs By,.:_ ,,,-&--,-~~""'4,..-;..,,o::: __ I ichael E. Gates City Attorney Attachment: Schedule A -Maximum Reimbursement for Combined City Services Page 17 of 17 219 Item No. 1 2 3 COOPERATIVE AGREEMENT NO .. C-3·-i&s4 SCHEDULE A REIMBURSEMENT SCHEDULE FOR COMBINED CITY SERVICES CITY OF HUNTINGTON BEACH Description· of City Services Maximum Reimbuiiement Amount(1) Review and approval of plans, sp~cificatlons, plans, and other pertinent engineering plans and reports; Traffic Management Plan (TMP) re.view ~nd concurrence, and construction oversight inspection services related to CITY FACILITIES; · · $180,000 Traffic engineering and detour inspection $14,000 Police services (including overtime costs) $6,000 TOTAL. MAXIMUM REIMBURSEMENT $200,000 {1) Schedule A shows estimated reimbursement amounts for each CITY SERVICES item of work. During the term of this Agreement, the CITY may redistribute funds for items of work as needed; however, the total combined ~mount for CITY SERVICES shall. not exceed the Total Maximum Reimbursement amount shown herein. Approve Amendment to C-3-2654 Orange County Transportation Authority for I-405 Improvement Project June 18, 2024 220 BACKGROUND • Initial work for the I-405 project started in 2001 – planning and programming • OCTA awarded design-build project to OC405 Builders January 2017 • OCTA entered into Cooperative Agreements with all of the local agencies along the project corridor in 2016 to facilitate tasks needed to complete the project and compensate agencies for expenses/efforts that expired in 2023 • A new Cooperative Agreement was approved in September 2023 221 NEED/WHY/BENEFITS • The Cooperative Agreement outlines various efforts that each party will undertake or participate in to complete the project • The agreement also includes financial reimbursement terms and amounts for various City efforts needed to complete the project • Current agreement expires June 30, 2024 • Amendment to current agreement needed to extend duration to December 31, 2024 222 DETAILS • The City has already received more than $682,737 for pavement mitigation costs – pavement life impacts due to freeway detours onto local streets • The City has received more than $215,000 for other direct staff expenses/efforts related to the project • Current agreement authorizes a maximum reimbursement amount for additional expenses of $200,000 through the completion of the project 223 RECOMMENDATION •Approve the amendment to Cooperative Agreement C-3-2654 with OCTA and authorize the Interim City Manager to execute the agreement 224 Questions? 225 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-452 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Eric G. Parra, Interim City Manager VIA:Travis K. Hopkins, Assistant City Manager PREPARED BY:Jennifer Carey, Acting Deputy City Manager Subject: Consider Proposal Received as Part of the Request for Proposal Process for Managed Library Services for the Huntington Beach Public Library Statement of Issue: On May 30, 2024, the City released a Request for Proposal (RFP) for Managed Library Services for the Huntington Beach Public Library (HBPL). One proposal was received, a multi-departmental evaluation was conducted, and staff is seeking the City Council’s direction on how to proceed. Financial Impact: Not applicable Recommended Action: Direct staff to take one of the following actions: Option A: Reject the proposal for Managed Library Services for the Huntington Beach Public Library. Option B: Begin negotiations for Managed Library Services for the Huntington Beach Public Library and continue the meet and confer process with labor groups. Direct staff to return to the City Council for consideration of the potential agreement. Alternative Action(s): Provide alternate direction to staff. Analysis: On March 19, 2024, the City Council approved for staff to issue a Request for Proposals (RFP) for Managed Library Services for the Huntington Beach Public Library (HBPL) system. On May 30, 2024, a RFP was released to evaluate the feasibility of a professional services agreement with a qualified contractor to manage all aspects of the day-to-day operations of the HBPL under the City’s direction City of Huntington Beach Printed on 6/12/2024Page 1 of 2 powered by Legistar™226 File #:24-452 MEETING DATE:6/18/2024 while maintaining or enhancing service levels at a reduced cost. The RFP outlined the functional and technical requirements necessary for the efficient operation of the HBPL at its current standard. Qualified contractors were invited to submit proposals that detailed their approach and demonstrated relevant experience in managing library systems similar in scope and scale to the HBPL. They were required to provide references from such systems, present a work plan, submit a detailed cost proposal with breakdown, and other supporting documentation. One proposal was received from Library Systems & Services (LS&S). A multi-departmental panel conducted a thorough evaluation of their proposal which included assessment of submitted materials, an interview with LS&S staff, and reference checks with existing customers. As a result, staff identified several disadvantages and advantages. Disadvantages include significant community opposition to outsourcing library operations, a lengthy and challenging transition process, the potential loss of volunteers and donations, and the loss of features and services unique to the HBPL system. Advantages include a proposed annual cost savings of up to $1 million and streamlined bulk purchasing policies that may lead to additional efficiencies. Should the City Council elect to reject the proposal, City staff will continue evaluating opportunities to enhance efficiencies and cost savings within the HBPL system. As is the case for all City departments, staff will look into potential revenue generation opportunities to bring back to City Council for their future considerations. Should the City Council direct staff to proceed with negotiations with LS&S, staff will work with the proposer to define agreement terms relating to scope of services, outline transition plan, and further refine cost savings breakdown. Additionally, City staff will continue meet and confer discussions with labor groups regarding potential impacts to existing and future staff. Staff will return at a later date for the City Council’s consideration of a proposed agreement for Managed Library Services and to provide an update on labor group negotiations. Environmental Status: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Strategic Plan Goal: Non Applicable - Administrative Item For details, visit www.huntingtonbeachca.gov/strategicplan <http://www.huntingtonbeachca.gov/strategicplan>. Attachment(s): 1. Request for Proposals for Managed Library Services City of Huntington Beach Printed on 6/12/2024Page 2 of 2 powered by Legistar™227 228 City of Huntington Beach - Managed Library Services RFP Page 2 Table of Contents 1. About the City and the Huntington Beach Public Library ............................................................... 3 2. Purpose of the RFP ........................................................................................................................................ 3 3. RFP Schedule ................................................................................................................................................... 4 4. Scope of Services ........................................................................................................................................... 4 5. Submittal Content ...................................................................................................................................... 10 6. Submittal Process ....................................................................................................................................... 12 7. Selection Criteria ......................................................................................................................................... 13 8. Standard Terms and Conditions ............................................................................................................ 14 Exhibit A – HBPL Service Information ......................................................................................................... 16 Exhibit B - Current Staffing Levels ............................................................................................................... 17 Exhibit C – Financial Information ................................................................................................................. 18 Attachment 1 - Sample Professional Services Agreement Attachment 2 - Request for Proposal-Vendor Application Form Attachment 3 – References Form Attachment 4 – Non-Collusion Form Attachment 5 – Insurance Requirements 229 City of Huntington Beach - Managed Library Services RFP Page 3 1. About the City and the Huntington Beach Public Library The City of Huntington Beach (“City”) is a Charter city comprised of nearly 200,000 residents and a diverse network of businesses, community organizations, and various other stakeholders. Huntington Beach operates under a Council-Manager form of government led by a 7-member City Council that sets policy for the City. Implementing these policies under the executive leadership of the City Manager are 12 City departments and 1,500 full- and part-time employees who deliver functions ranging from public safety to library services. The Huntington Beach Public Library (HPBL) is a division of the City’s Community and Library Services Department and is a city-owned and operated system that has provided library services since 1909. Today, HBPL is recognized for comprehensive services, collections, and programs across five locations: • Central Library, 7111 Talbert Ave. • Banning Branch Library, 9281 Banning Ave. • Helen Murphy Branch Library, 15882 Graham St. • Main Street Branch Library, 525 Main St. • Oak View Branch Library, 17251 Oak Ln. HBPL operates four subdivisions: Library, Youth and Family Programming, Public and Community Outreach, and Technology and Support. (HBPL also provides Cultural Services through the City’s Art Center; however, Cultural Services is not included in this RFP.) All four subdivisions are operated by 28 full-time and 78 part-time library staff who tailor their services to the needs and interests of the Huntington Beach community. In Fiscal Year 2022-23, HBPL staff, with the support of over 800 volunteers, delivered approximately 1,500 children’s programs and story times, 50 teen programs, 275 adult programs, and over 5,200 hours of literacy services. Additional details about HBPL’s operations are available in Exhibits A-C. 2. Purpose of the RFP The City is evaluating the possibility of entering into a 5-year agreement (with the option to renew for five successive one-year terms) with a qualified contractor to manage all aspects of the day-to-day operations of the HBPL under the City’s direction. The City invites proposals that demonstrate a contractor’s ability to maintain or enhance operations at a reasonable cost to the City. Such operations would be subject to the terms and conditions of a professional services agreement (“agreement”), which include, but are not limited to, the terms identified in the Scope of Services (see section 4 of this RFP), annual evaluations to assess the contractor’s ability to successfully fulfill the Scope of Services, and a no-fault termination clause that is effective after the first six months of the agreement. After reviewing all proposals, a Managed Library Services agreement may be awarded by the City Council to the highest-ranking contractor on a “best value” basis that includes costs, experiences, references, and other qualifications deemed appropriate by the City. However, the City reserves the right to cancel the RFP at any time or choose not to award an agreement. Entering into a Managed Library Services agreement does not cede ownership of the HBPL system to the contractor. The City will retain ownership of the system, its facilities, and assets, while the contractor 230 City of Huntington Beach - Managed Library Services RFP Page 4 oversees only the day-to-day administration of the library. All existing HBPL programs and services (e.g. Veterans Resource Center, Literacy Services, Makerspace, etc.) must continue to be offered, unless the contractor can propose enhancements or improvements to the HBPL’s current offerings. Lastly, HBPL will continue to remain fully and publicly accessible at no cost to patrons during operating hours. 3. RFP Schedule The RFP schedule is subject to change, and the City reserves the right to modify it at any time. All potential contractors who are registered for this RFP in Planet Bids (the City’s platform to advertise bids and other solicitations for services) will be duly notified of any schedule changes: Task Deadline RFP Released May 30, 2024 Written Questions from Contractors Due June 3, 2024, by 4:00 P.M. City’s Responses to Written Questions Posted On Planet Bids June 4, 2024, by 4:00 P.M. RFP Proposal Submission Deadline June 6, 2024, by 4:00 P.M. City Council Consideration of Selected Contractor June 18, 2024 (Tentative) (All times are in Pacific Daylight Time.) Additional information about the RFP schedule: A. All questions from registered contractors must be submitted in writing to the City via Planet Bids by June 3, 2024, at 4:00 P.M. The City will post answers on Planet Bids by June 4, 2024, by 4:00 P.M. B. All interested contractors must register and submit their proposals on Planet Bids by the RFP Proposal Submission Deadline. Proposals received after this deadline will not be accepted. Contractors are solely responsible for the prompt delivery of their proposals. C. Afterwards, the panel will select the “best value” proposal and engage in negotiations to finalize a Scope of Services that is acceptable to both parties. This selection process may include interviews with the top-ranking contractors. Staff anticipates that City Council may consider the final agreement on June 18, 2024. However, the City reserves the right to cancel the RFP at any time or reject all proposals and choose not to award an agreement. 4. Scope of Services The most effective proposals will demonstrate a contractor’s ability and commitment to manage all aspects of the day-to-day administration of the HBPL - at equal or higher levels of services and at a reasonable cost to the City. The following is a list of functional and technical requirements of the Scope of Services necessary to operate the HBPL. HBPL operates under a more detailed Scope of Services, which will be reviewed with the highest-ranking contractor during the agreement negotiation process. The end goal is to ensure all details, as well as the broader scope of services below, are addressed in a final agreement, unless the contractor can demonstrate another approach that may be more effective and beneficial to patrons. 231 City of Huntington Beach - Managed Library Services RFP Page 5 A. Library Services 1. Comply with all City policies related to the library, including but not limited to: Collections Development Policy, Library Card Use Policies, Fee Schedules, Rules of Conduct, Internet Safety, Computer Lab Use Agreements, Library Display Policy, and Municipal Code. As part of implementing these policies, the contractor should recommend updates and amendments that will improve the patron experience and are based on data and need. 2. Catalog and classify all materials. Plan and conduct routine, comprehensive reviews of HBPL’s collection, including weeding using the CREW weeding manual, and procurement and cataloguing practices. Ensure they are aligned with current HBPL practices or industry best practices, if they are more robust. 3. Regularly review program development, collections, and programs, ensuring they are in line with the community’s needs and interests, as well as current HBPL practices or industry best practices, if they are more robust. 4. Maintain or increase the current hours of operations for all five library facilities: o Central ▪ Monday: 1:00pm – 9:00pm ▪ Tuesday - Thursday: 9:00am – 9:00pm ▪ Friday - Saturday: 9:00am – 5:00pm ▪ Sunday: 12:00pm – 5:00pm o Banning ▪ Monday: Closed ▪ Tuesday - Thursday: 9:00am – 6:00pm ▪ Friday - Saturday: 9:00am – 1:00pm ▪ Sunday: Closed o Helen Murphy ▪ Monday: 1:00pm – 7:00pm ▪ Tuesday: 9:00am – 2:00pm ▪ Wednesday: 1:00pm – 7:00pm ▪ Thursday - Friday: 9:00am – 2:00pm ▪ Saturday - Sunday: Closed o Main Street ▪ Monday: Closed ▪ Tuesday - Thursday: 9:00am – 6:00pm ▪ Friday - Saturday: 9:00am – 5:00pm ▪ Sunday: Closed o Oak View ▪ Monday - Thursday: 9:00am – 9:00pm ▪ Friday - Saturday: 9:00am – 5:00pm ▪ Sunday: Closed 232 City of Huntington Beach - Managed Library Services RFP Page 6 5. Provide prompt reference, information, and research services to patrons - in person, over the phone, and online. 6. Implement an annual patron survey to quantify service satisfaction levels. 7. Recommend interlibrary loan services for City consideration; if approved, implement services. 8. Develop a Strategic Plan for HBPL with City participation and approval. The Strategic Plan should establish short and long-term goals to meet and improve upon current services. 9. Serve as the City’s principal liaison with the State of California with respect to library funding matters and meeting all State Library requirements; conduct this work in coordination with the City. Represent the City at relevant library meetings, including the California Library Association meetings, and inform the Community and Library Services Department of all significant updates. B. Staffing and Training 1. Offer and provide employment to all existing full and part-time HBPL staff at their current salary, salary schedule, paid time off accrual rates, and potential performance bonus opportunities. Future pay step increases beyond an employee’s current salary schedule will be at the discretion of the contractor, but at a minimum must include an annual Cost of Living Adjustment (COLA). Provide employment benefits (i.e. medical, dental, vision, retirement) to all staff, ensuring they are competitive for the Orange County (CA) region. 2. Hire and appropriately compensate any new, qualified staff and necessary vendors to meet or exceed current services and programs. Compensation, including benefits, must be competitive for the Orange County (CA) region, include annual COLAs (at a minimum), and be commensurate for their experiences and qualifications. 3. In general, assume all Human Resources functions for all current and new library staff. Conduct recruitment, hiring, training, supervision, and disciplinary actions as necessary, in accordance with all applicable labor laws to ensure equitable hiring and fair employment practices. 4. Ensure a smooth transition and adequate trainings for all current and new employees in time to begin employment by the first day of operations. 5. Provide orientations and ongoing professional development training for all library staff. All personnel employed to perform the services necessary to operate the library will be employees of the contractor, which will pay all costs related to their employment, training, and professional development. 6. The City may also require additional trainings to support the City’s operations in the event of an emergency. These trainings will be provided by City staff at no cost to the contractor and include but are not limited to the proper deployment of AED defibrillators, fire alarms, fire and earthquake drills, and other similar trainings. 7. Library Director employed by the contractor will have a master’s degree in library science or a related field and must be approved by the City. He or she must have at least 10 years’ 233 City of Huntington Beach - Managed Library Services RFP Page 7 experience as a librarian in a publicly run library system, of which five years is in a supervisory role. The Library Director, or a designee approved by the Community and Library Services Director, must attend applicable City boards, commissions, committees, and community groups and cooperate with their members to provide research and support related to the library. Should a Library Director leave his or her employment with the contractor, the contractor will immediately provide an equally qualified replacement to temporarily perform in the role to ensure there are no gaps in service and until the role can be filled permanently. 8. Contractor must have an internal collection management group, composed of dedicated MLIS professionals and technical staff who select, acquire, and manage cataloged materials. 9. Implement a plan to ensure an ongoing and robust community volunteer and donation program for the Library that are at current levels today. The HBPL utilized approximately 800 volunteers in calendar year 2023 for programs and various other needs. The system also receives an estimated average of $300,000 per year in donations for materials, furniture, equipment, and other necessities. C. Facilities and Program Management 1. Plan, coordinate, and implement all library events, programs, and workshops at current capacity or higher (see Exhibit A) and ensure they are in line with the community’s needs. 2. Provide daily janitorial services at all five branch locations. In addition, provide dedicated staff to provide security at Central Library and ensure the clerk staff at Main Street Library is also able to provide security, as it is currently structured. 3. City will continue to plan and complete major projects or upgrades concerning library buildings, grounds, building systems, utilities, landscaping, HVAC, and lighting and will be responsible for any capital improvements to Library facilities. However, the contractor must notify the City of any issues or concerns and cooperate with City staff to provide ready access to facilities that need attention. 4. City will continue to oversee routine maintenance, including landscaping, garbage, pest control, fire extinguisher, alarm, electric, gas, water, and sewer services in all library facilities. Contractor must coordinate with City to identify and troubleshoot any service issues, as needed, and provide ready access on site to conduct any work. 5. City will continue to oversee management/rentals of meeting rooms, kitchen spaces, auditoriums, and other rentable spaces. Contractor must coordinate with City to provide appropriate access and use of these spaces by City staff and the public. All revenue from rentals will be remitted to the City as revenue. D. Budget, Finance, and Contracting 1. Properly prepare and administer the overall HBPL operating budget. In addition, collaborate with the City’s Public Works and Community and Library Services Departments to identify and submit annual budget requests for capital improvements related to the library, as part of the City’s annual budgeting process. 234 City of Huntington Beach - Managed Library Services RFP Page 8 2. Collect and account for all patron fees and fines, which will remain as revenue that is remitted to the City. 3. Provide monthly and annual financial statements to the City, detailing the costs associated with operating each branch, including proportionate administrative costs. 4. Provide the City with annual audited financial statements of the contractor to demonstrate fiscal soundness. Retain necessary financial files spelled out in the contract and make them available to the City for audit purposes, upon request. 5. Assume the Payroll and Accounting functions for all expenditures incurred in the management and operations of the HBPL. All staff responsible for handling cash receipts will be trained in and adhere to City cash handling procedures. 6. Contractor will explore grant and other funding opportunities and apply for those which meet the Library’s objectives. Contractor must also adhere to grant guidelines for grants that are currently active and work towards renewing or applying for the same grants to support their ongoing programs. Lastly, contractor must demonstrate a record of applying for, receiving, managing, and reporting on grants for public library clients. 7. Contractor will be responsible for maintaining all City-authorized contracts. If Contractor elects to end any contract early, Contractor will be financially responsible for any early termination costs. 8. To learn more about HBPL’s current operating budget, please refer to Exhibit C. E. Technology 1. The City’s Information Services (IS) Department will continue to deliver Help Desk services and maintain current technology software, equipment, and hardware to support library operations (i.e. router, firewall, computers, phone systems, security cameras, access control systems, servers, etc.), in coordination with the Contractor. 2. The Contractor will manage all software, service agreements, and online services that include but are not limited to: i. All facets of HBPL’s Integrated Library System (ILS), Horizon ILS by Sirsi-Dynix. Ensure ongoing support, timely updates, and upgrades to remain current with the latest features of the system. Ensure that the ILS remains fully functional for staff and patrons on the first day of library operations under the agreement. ii. Maintain online catalogs and databases, ensuring accuracy and usability. Support digital literacy initiatives and training programs for patrons and staff. iii. eMaterial online platforms such as Hoopla, Palace Project, Kanopy, and Libby. iv. Skyriver, Meescan, Kiosk Pro Plus, Makerspace and other relevant software necessary to provide library resources and programming to patrons. 235 City of Huntington Beach - Managed Library Services RFP Page 9 v. Any proposal made by the contractor to replace existing software, service agreements, and online services with other solutions must provide a plan that allows the HBPL to do so at no additional cost or for future savings; the contractor must also demonstrate that they will allow the HBPL to continue to provide the same level of services. 3. All furnishings and equipment, including staff computers, that are in use for Library operations at the time of execution of the contract will remain available to the contractor and patrons and will continue to be owned and serviced by the City’s IS Department. 4. The City maintains other technology assets in library buildings for other City uses (i.e. antennas on the roof, equipment in various rooms, etc.). Ownership, operational control, and access to such assets is restricted to the IS Department only. 5. Comply with the City of Huntington Beach technology standards and policies. F. Community Relations 1. Maintain consistent, positive, and productive relationships with non-profit and community organizations that support and partner with the HBPL. 2. Develop and implement a plan to promote library services, resources, events, and programs across various outreach platforms (i.e. HBPL’s website, newsletter, social media platforms, etc.), in coordination with and subject to the approval of the City’s Office of Communications and Community and Library Services Department. City will provide Contractor with online security and content management training prior to contractor utilizing any library outreach platforms. G. Reporting and Evaluation 1. The City will assign a staff member to coordinate with the Library Director to monitor the contractor’s performance and serve as the liaison for issues of day-to-day operations. 2. Utilize an analytics platform to gather and analyze circulation trends, collection data, and other usage statistics year over year. Report this data to the City annually and utilize the data to inform decision making and service improvements and recommend any adjustments to services based on findings. 3. Define key performance indicators (KPIs) to track service outcomes and achieve short and long- term goals that will ensure high quality library services. Use these measures to recommend improvements to City policies and HBPL operating procedures. 4. Evaluate patron satisfaction through surveys, feedback forms, and stakeholder outreach. 5. Provide monthly data reports to City staff, City Council, and other City leadership. 6. Submit all reporting required by the State and other regulatory agencies. H. Transitioning to Managed Library Services 236 City of Huntington Beach - Managed Library Services RFP Page 10 1. The contractor must efficiently transition the HBPL to a contractor-operated system, with minimal disruption to the operations of all five libraries, which must remain open to the public during normal operating hours. 2. The transition period should take no more than 120 days. I. Other 1. Maintain professional memberships with library associations to provide additional resources to the HBPL. 2. Comply with all California laws and regulations pertaining to public library services, including but not limited to, the California Library Services Act. 3. Contractor will be responsible for maintaining all City-authorized contracts. If Contractor elects to end any contract prior to its termination date, Contractor will be financially responsible for any early termination costs. 4. Conduct a comprehensive review of all existing service and equipment contracts and propose a process to transition the City to any new, proposed contracts, if needed. 5. Submittal Content Proposals submitted to the City must follow the format below, and all requested information must be supplied to be considered. A. Vendor Application Form and Cover Letter 1. A cover letter that contains a brief introduction, overview of the contractor’s qualifications, and approach to this RFP. 2. Include the full name and title of the main contact, title, contact information, and signature. 3. The letter should list all potential sub-contractors who will be engaging in this project and the percentage of time they will spend on the Scope of Services. If none, please indicate as such. 4. The letter must stipulate that the proposal will be valid for at least 180 days. 5. Complete the Request for Proposal-Vendor Application Form (see Attachment 2) and attach it to the cover letter. B. Contractor Qualifications 1. An overview of the contractor’s qualifications, which should include the type of organization; number of years providing managed library services for municipal library systems; number of existing municipal library clients and the types of services provided to each; number of full- and part-time personnel; professional registration; and other information demonstrating one’s qualifications. 237 City of Huntington Beach - Managed Library Services RFP Page 11 2. Relevant project experience that includes project name, Scope of Services, costs, duration, and applicability to this RFP. 3. Resumes/bios and backgrounds of the principal staff members who will be: (1) working directly to transition HBPL under the contractor’s management and (2) the day-to-day management of the system. 4. Five references for whom the contractor has provided similar services for municipal governments with library systems that are similar to the scale and size of the HBPL and within the past five years. Include the name, address of the organization, email, and phone number of a contact person, with a brief description of the services performed. C. Technical Approach and Work Plan / Methodology 1. Describe the contractor’s ability and commitment to perform the Scope of Services described in this RFP. Provide a detailed work plan with specific task descriptions, timeline, and deliverables to demonstrate that the contractor has considered all aspects of this RFP. Identify the main elements of the Scope of Services, anticipated completion dates, and expected outcomes per each. Please include assumptions or disclaimers as needed. Note any deviations or additions to the Scope of Services that are believed to have been overlooked or that help clarify your understanding of the scope. 2. Provide a staffing plan that indicates the levels and types of staffing for each branch based on the hours of operations and programming needs. 3. A library operations transition plan with a timeline. 4. Contractor will provide statement regarding how they will initiate relationships with the various vendors/contractors and partnerships already in existence that are currently used by the HBPL. 5. Describe any additional services or information that may be required or worth consideration. D. References 1. Provide at least five references that have received similar services from your company. Include the name of the contract manager, the contractor, the length of service, phone and email address, and other relevant information. It is preferrable if the references are for municipal government agencies or are local companies. The City reserves the right to contact any of the organizations or individuals listed. Complete the Reference form (see Attachment 3) or provide references in your own formatting containing all the required information. E. Conflict of Interest Disclose any possible conflicts of interest resulting from actions performed by the contractor on behalf of the City. Although the contractor will not be automatically disqualified by reason of work performed for other parties, the City reserves the right to consider the nature and extent of such work in evaluating the proposal. Contractor will sign and attach the non-collusion form (see Attachment 4). 238 City of Huntington Beach - Managed Library Services RFP Page 12 F. Fee Proposal 1. Provide a detailed not-to-exceed cost proposal to deliver the entire Scope of Services. i. Provide a breakdown of costs by library facility, by year of the contract for years one through five, and by category in the scope of services: Library Services; Staffing (personnel and benefits); Training; Facilities; Program Management; Budget and Finance; Technology; Community Relations; Reporting and Evaluation; Transition; and Other. Further detail within those general categories may be requested by the City. ii. Contractor will be responsible for maintaining all City-authorized contracts. If Contractor elects to end any contract prior to its termination date, Contractor will be financially responsible for any early termination costs. 2. A menu of additional services and their associated costs that may be provided and are not specifically requested in this RFP but are attainable within the HBPL annual budget. 3. Charges for supplies, equipment, and subcontractors will be paid at cost. It is expected that general, overhead, and administrative costs are included in the hourly rate for labor. Proposals will be held to the total cost given in the response quote. It will be assumed that all contingencies and/or anticipated escalations are included. No additional funds will be paid above and beyond the original quote given by the selected contractor. 4. Any agreement that may be entered into pursuant to this RFP will be for a five-year term (with the option to renew for five one-year terms). The City will conduct annual evaluations of the contractor’s ability to fulfill the Scope of Services and reserves the right to terminate the agreement at any time after the first six months. Pricing for the second through fifth year of the initial term shall not exceed the contractor’s proposed costs for that year or the CPI identified below, whichever is lower. If not otherwise stated, the contract may be renewed for the sixth and subsequent years at pricing adjusted up or down by no more than the Consumer Price Index - All Urban Consumers (not seasonally adjusted), Los Angeles-Long Beach-Anaheim area and prevailing wage rates, if applicable. Price adjustments may be increases or decreases as appropriate and must be requested at least 90 days prior to the expiration/renewal of the contract. If not renewed prior to the anniversary date, the contract may continue on a month- to-month basis until renewed or awarded to a new contractor. 5. The contractor’s most recent financial statements to assist the City in determining the contractor’s financial condition. The City will only award a contract to a responsible contractor possessing the financial stability and the ability to perform successfully under the terms and conditions of this RFP and which will be most advantageous to the City. 6. Submittal Process All proposals must be submitted in PDF file format via Planet Bids. A. Content and Number of Proposals The proposal must be submitted using the format as indicated in the proposal format guidelines. Submit one (1) PDF file format copy of your proposal in sufficient detail to allow for thorough evaluation and comparative analysis. 239 City of Huntington Beach - Managed Library Services RFP Page 13 B. Submission of Proposals Complete written proposals must be submitted electronically in PDF file format via the Planetbids.com website no later than 4:00 P.M. (P.D.T) on June 6, 2024. Proposals will not be accepted after this deadline. Faxed or e-mailed proposals will not be accepted. Proposals may be withdrawn prior to the submission deadline, provided notification is received in writing. Proposals cannot be changed or withdrawn after the deadline. C. Inquiries Written questions must be directed via Planetbids through the Q & A tab no later than June 3, 2024 @ 4:00 P.M. (P.D.T) to the City’s Purchasing Division. Answers from the City will be posted on Planetbids on June 4, 2024 by 4:00 P.M. (P.D.T). From the date that this RFP is issued until a contractor is selected and the selection is announced, contractors are not allowed to communicate for any reason with any City Council Member or City employee other than the contracting officer listed above regarding this RFP . The City shall reject any proposal for violation of this provision. No questions other than written will be accepted, and no response other than written will be binding upon the City. D. Conditions for Proposal Acceptance This RFP does not commit the City to award a contract or to pay any costs incurred for any services. The City, at its sole discretion, reserves the right to accept or reject any or all proposals received as a result of this RFP, to negotiate with any qualified source, or to cancel this RFP in part or in its entirety. All proposals will become the property of the City of Huntington Beach. If any proprietary information is contained in the proposal, it should be clearly identified. 7. Selection Criteria The City may use some or all of the following criteria in its evaluation and comparison of proposals submitted. The criteria listed are not necessarily an all-inclusive list. The order in which they appear is not intended to indicate their relative importance: A. Compliance with RFP requirements (10%) B. Understanding of Scope of Service / methods and approach described to accomplish the Scope of Services (30%) C. Demonstrated, proven, and recent experience in successfully providing public library managed services in similar communities in California; experience must include conducting work of similar scope, complexity, and magnitude for other public agencies. Contractors must also have a minimum of five (5) years’ experience managing full service public libraries in California. (20%) D. Cost proposal (25%) E. A minimum of five satisfactory references for contractor and any subcontractors; references should be from local government clients with similar library systems that the City can visit. (15%) The City may contact references; contact the contractor to clarify any response; contact any current users of a contractor’s services; solicit information from any available source concerning any aspect of a proposal; 240 City of Huntington Beach - Managed Library Services RFP Page 14 and seek and review any other information deemed pertinent to the evaluation process. The evaluation committee shall not be obligated to accept the lowest priced proposal but may make an award in the best interests of the City. After written proposals have been reviewed, discussions or interviews with prospective contractors may or may not be required. If scheduled, the oral interview will be a question/answer format for the purpose of clarifying the intent of any portions of the proposal. The individual from contractor’s firm that will be directly responsible for carrying out the contract, if awarded, should be present at the oral interview , if held. A Notification of Intent to Award may be sent to the vendor selected. Award is contingent upon the successful negotiation of final contract terms. Negotiations shall be confidential and not subject to disclosure to competing contractors unless an agreement is reached. If contract negotiations cannot be concluded successfully, the City may negotiate a contract with the next highest scoring vendor or withdraw the RFP. 8. Standard Terms and Conditions A. Amendments The City reserves the right to amend this RFP prior to the proposal due date. All amendments and additional information will be posted via Planet Bids. Contractors should check this web page daily for new information. The City also reserves the right to cancel, modify and/or redistribute services needed for one or all items listed in this RFP, if determined to be in the best interest of the City, for any reason. If this RFP and any ensuing agreement becomes partially or fully grant funded, the awarded contractor must agree to follow all grant, Federal, State, and City policies, guidelines, and regulations. B. Cost for Preparing Proposal The cost for developing the proposal is the sole responsibility of the contractor. All proposals submitted become the property of the City. C. Contract Discussions Prior to award, the apparent successful contractor may be required to enter discussions with the City to resolve any contractual differences. These discussions are to be finalized and all exceptions resolved within 3 days from notification. If no resolution is reached, the proposal may be rejected, and discussions will be initiated with the second highest scoring contractor. See Attachment 1 for a sample agreement. D. Confidentiality Requirements The staff members assigned to this project may be required to sign a departmental non-disclosure statement. Proposals are subject to the Freedom of Information Act. The City cannot protect proprietary data submitted in proposals. E. Financial Information 241 City of Huntington Beach - Managed Library Services RFP Page 15 The City is concerned about any contractor’s financial capability to perform; therefore, the City may ask for sufficient data to allow for an evaluation of one’s financial capabilities. F. Payment by Electronic Funds Transfer – EFT: The City requires that payment be made directly to the vendor’s bank account via an Electronic Fund Transfer (EFT) process. Banking information will need to be provided to the City via an Electronic Credit Authorization form. A City representative will provide the Electronic Credit Authorization form upon intent to award. Vendor will receive an Electronic Remittance Advice with the payment details via email. It is solely the responsibility of the vendor to immediately notify the City of any change to their information related to payments. G. Insurance Requirements & Sample Agreement City Resolution 2008-63 requires that licensees, lessees, and vendors have an approved Certificate of Insurance (not a declaration or policy) on file with the City for the issuance of a permit or contract. Within ten (10) consecutive calendar days of award of contract, successful contractor must furnish the City with the Certificates of Insurance proving coverage as specified in Appendix A. Failure to furnish the City with the required certificates within the time allowed will result in forfeiture of the Proposal Security. The City strongly encourages all contractors to review the Sample Agreement and Insurance Requirements before responding to the Request for Proposal. Please carefully review the Sample Agreement and Insurance Requirements before responding to the Request for Proposal. The terms of the agreement, including insurance requirements, have been mandated by the City Council and can be modified only if extraordinary circumstances exist. Your response to the Request for Proposal must indicate if you are unwilling or unable to execute the agreement as drafted as well as providing the insurance requirements. The City will consider this in determining responsiveness to the Request for Proposal. 242 City of Huntington Beach - Managed Library Services RFP Page 16 Exhibit A – HBPL Service Information The table below provides a broad overview of services provided by the HBPL in Fiscal Year 2022-23. However, the system operates under a more detailed Scope of Services, which will be shared with the highest-ranking contractor during the agreement negotiation process. The goal is to ensure all details are included in a final agreement, unless the contractor can demonstrate another approach that may be more effective and efficient. Item Quantity Facilities: • 1 Central Library and 4 branch libraries Collections: • Nearly 175,000 unique titles (2023) Circulation: • Over 807,000 physical items in circulation (2023) • E-materials are available separately on Hoopla, Libby, Palace Projects Staffing: • 28 full-time City employees • 78 part-time City employees • Approximately 800 volunteers Services: • Online public access catalog (Sirsi-Dynix) • Public access internet computers, iPads, and laptops • CENIC wireless internet • Photocopier • Electronic Resources (e.x. Hoopla, Libby) Programs: • Adults: at least 275 programs • Children's: at least 1,000 programs and 550 story times • Teens: at least 50 programs • Literacy Services: at least 5,000 hours to nearly 300 participants • Additional programs are viewable on the HBPL website. Current Partnerships: • Friends of the Library, Friends of the Children’s Library, OC Genealogical Society, HB Art Center Foundation, Historic Resources Board, Literacy Volunteers of HBPL, Veteran’s Resource Center Average Annual Donations: • Donation amounts vary annually. On average, they are approximately $300,000/year and used towards materials, furniture, equipment, and other necessities. 243 City of Huntington Beach - Managed Library Services RFP Page 17 Exhibit B - Current Staffing Levels The following tables include general job descriptions for full and part-time City employees who operate the HBPL and general job descriptions. These positions are in the FY2023-24 Operating Budget: Full Time Positions No. of Positions Accounting Technician 2 Facilities Maintenance Coordinator 1 Facilities Security Coordinator 1 Library Services Assistant (Clerk) 7 Senior Administrative Assistant 1 Literacy Program Specialist 2 Librarian I 6 Librarian II 1 Senior Library Specialist 2 Senior Librarian 3 Principal Librarian 1 Community & Library Services Manager 1 Total Full-Time Positions 28 Part Time Positions No. of Positions Library Page (Entry) 8 Library Page (Experienced) 4 Department Services Aide (Entry Level) 32 Department Services Aide (Journey) 12 Department Services Aide (Experienced) 8 Department Services Specialist (Entry) 1 Library Facilities Assistant (PERS) 2 Maintenance Worker (Experienced) 1 Substitute Librarian 10 Total Part-Time Positions 78 244 City of Huntington Beach - Managed Library Services RFP Page 18 Exhibit C – Financial Information Huntington Beach Public Library Operating Costs The following Financial Information includes the HBPL’s actual expenditures in Fiscal Year 2022/23 and its adopted operating budget for this current Fiscal Year 2023/24. Sirxidynix Annual maintenance costs are budgeted in the Information Services Department’s Operating Budget. Please ensure that the cost for this Integrated Library System or equivalent is incorporated in all cost proposals. 245 Actual Adopted Budget FY 2022/23 FY 2023/24 Salaries -Permanent 1,977,219 2,118,610 Salaries -Temporary 948,687 975,100 Benefits 762,964 795,469 Conferences and Training 742 1,000 Equipment & Supplies 121,498 77,139 Audiovisual Supplies 550 Computer Hardware & Supplies 11 ,245 3 ,000 Furniture Non-Capital 13 ,365 General Supplies 51 ,762 24,000 Office Supplies 15 ,757 31 ,250 Program Supplies 28 ,820 18,889 Expense Allowances 5,421 5,400 Auto Allowance 5 ,421 5 ,400 Other 158 other 158 Other Contract Services 202,640 201,482 Building Alarm 4 ,292 5 ,200 Cont Svcs -Janitorial 121,129 129,282 other Cont Svcs Meeting Room Tech Support 55 ,080 44,000 Chai Service/Sky River License 22 ,139 23 ,000 Professional Services 19,900 other Professional Services 19,900 Repairs & Maintenance 455,940 437,696 Awards and Presentations 979 5 ,000 Bldg and Grounds Main! 9 ,945 13,000 Books 254,869 85 ,500 Clothing/Uniforms 199 1,000 Dues and Memberships 1,810 2 ,100 Electronic Materials 54 ,513 217,000 Equipment Repairs, Main! 49 ,121 47 ,000 Repairs and Maintenance 29 ,062 29 ,000 Software License Main! 34 ,540 38 ,096 Cellular Wireless Data 18 ,036 32 ,300 Utilities 411 ,190 411 ,190 Grand Total $ 419241886 $ 510551386 * Sirsidynix Annual Maintenance Costs totaled $50,993 and $60,907 in FY 2022/23 and FY 2023/24, respectively . City of Huntington Beach - Managed Library Services RFP Attachment 1 - Sample Professional Services Agreement 246 agree/ surfnet/professional svcs mayor 1of 11 12/07 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND FOR THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY, and , a hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to ; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: 1. SCOPE OF SERVICES CONSULTANT shall provide all services as described in Exhibit "A,"which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." CONSULTANT hereby designates who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 247 agree/ surfnet/professional svcs mayor 2of 11 12/07 3. TERM; TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of CONSULTANT are to commence on ____________________, 20____ (the "Commencement Date"). This Agreement shall automatically terminate three (3) years from the Commencement Date, unless extended or sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be completed no later than from the Commencement Date. The time for performance of the tasks identified in Exhibit "A"are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT. In the event the Commencement Date precedes the Effective Date, CONSULTANT shall be bound by all terms and conditions as provided herein. 4. COMPENSATION In consideration of the performance of the services described herein, CITY agrees to pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "B," which is attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Dollars ($ ). 5. EXTRA WORK In the event CITY requires additional services not included in Exhibit "A"or changes in the scope of services described in Exhibit "A,"CONSULTANT will undertake such work only after receiving written authorization from CITY. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained. 6. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 248 agree/ surfnet/professional svcs mayor 3of 11 12/07 7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. 8. HOLD HARMLESS CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by CONSULTANT. 9. PROFESSIONAL LIABILITY INSURANCE CONSULTANT shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide 249 agree/ surfnet/professional svcs mayor 4of 11 12/07 coverage for CONSULTANT’s professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above-mentioned insurance shall not contain a self-insured retention without the express written consent of CITY; however an insurance policy "deductible" of Ten Thousand Dollars ($10,000.00) or less is permitted. A claims-made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims. CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. If CONSULTANT fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force and paid for, the CITY shall have the right, at the CITY’s election, to forthwith terminate this Agreement. Such termination shall not effect Consultant’s right to be paid for its time and materials expended prior to notification of termination. CONSULTANT waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY. 250 agree/ surfnet/professional svcs mayor 5of 11 12/07 10. CERTIFICATE OF INSURANCE Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; B. state that the policy is currently in force; and C. shall promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice; however, ten (10) days’ prior written notice in the event of cancellation for nonpayment of premium. CONSULTANT shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from CONSULTANT's defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 11. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and 251 agree/ surfnet/professional svcs mayor 6of 11 12/07 employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 12. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT. 13. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 14. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 15. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 252 agree/ surfnet/professional svcs mayor 7of 11 12/07 16. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified mail-return receipt requested: TO CITY: TO CONSULTANT: City of Huntington Beach ATTN: 2000 Main Street Huntington Beach, CA 92648 17. CONSENT When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 18. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 19. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and 253 agree/ surfnet/professional svcs mayor 8of 11 12/07 are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 20. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 21. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 254 agree/ surfnet/professional svcs mayor 9of 11 12/07 22. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 23. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 24. ATTORNEY’S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney’s fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing party. 25. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 26. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 255 agree/ surfnet/professional svcs mayor 10 of 11 12/07 27. SIGNATORIES Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. CONSULTANT’s initials 28. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, and supersede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. 29. EFFECTIVE DATE IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers. This Agreement shall be effective on the date of its approval by the City Council. This Agreement shall expire when terminated as provided herein. 256 agree/ surfnet/professional svcs mayor 11 of 11 12/07 CONSULTANT, COMPANY NAME By: print name ITS:(circle one)Chairman/President/Vice President AND By: print name ITS:(circle one)Secretary/Chief Financial Officer/Asst. Secretary - Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ________________________________ Mayor _________________________________ City Clerk INITIATED AND APPROVED: ____________________________________ REVIEWED AND APPROVED: _________________________________ City Manager APPROVED AS TO FORM: _________________________________ City Attorney 257 EXHIBIT A EXHIBIT "A" A. STATEMENT OF WORK: (Narrative of work to be performed) B. CONSULTANT'S DUTIES AND RESPONSIBILITIES: C. CITY'S DUTIES AND RESPONSIBILITIES: D. WORK PROGRAM/PROJECT SCHEDULE: 258 Exhibit B 1 EXHIBIT “B” Payment Schedule (Hourly Payment) A. Hourly Rate CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost schedule: B. Travel Charges for time during travel are not reimbursable. C. Billing 1. All billing shall be done monthly in fifteen (15) minute increments and matched to an appropriate breakdown of the time that was taken to perform that work and who performed it. 2. Each month’s bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the project. 3. A copy of memoranda, letters, reports, calculations and other documentation prepared by CONSULTANT may be required to be submitted to CITY to demonstrate progress toward completion of tasks. In the event CITY rejects or has comments on any such product, CITY shall identify specific requirements for satisfactory completion. 4. CONSULTANT shall submit to CITY an invoice for each monthly payment due. Such invoice shall: A) Reference this Agreement; B) Describe the services performed; C) Show the total amount of the payment due; D) Include a certification by a principal member of CONSULTANT's firm that the work has been performed in accordance with the provisions of this Agreement; and E) For all payments include an estimate of the percentage of work completed. Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an invoice, CITY shall notify CONSULTANT in writing of the reasons for non-approval and the schedule of performance set forth in Exhibit "A"may at the option of CITY be suspended until the parties agree that past performance by CONSULTANT is in, or has been brought into compliance, or until this Agreement has expired or is terminated as provided herein. 259 Exhibit B 2 5. Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate. Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. . 260 Exhibit B EXHIBIT "B" Payment Schedule (Fixed Fee Payment) 1. CONSULTANT shall be entitled to monthly progress payments toward the fixed fee set forth herein in accordance with the following progress and payment schedules. 2. Delivery of work product: A copy of every memorandum, letter, report, calculation and other documentation prepared by CONSULTANT shall be submitted to CITY to demonstrate progress toward completion of tasks. In the event CITY rejects or has comments on any such product, CITY shall identify specific requirements for satisfactory completion. 3. CONSULTANT shall submit to CITY an invoice for each monthly progress payment due. Such invoice shall: A) Reference this Agreement; B) Describe the services performed; C) Show the total amount of the payment due; D) Include a certification by a principal member of CONSULTANT's firm that the work has been performed in accordance with the provisions of this Agreement; and E) For all payments include an estimate of the percentage of work completed. Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an invoice, CITY shall notify CONSULTANT in writing of the reasons for non-approval and the schedule of performance set forth in Exhibit "A"may at the option of CITY be suspended until the parties agree that past performance by CONSULTANT is in, or has been brought into compliance, or until this Agreement has expired or is terminated as provided herein. 4. Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate. Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. 261 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND FOR Table of Contents 1 Scope of Services.....................................................................................................1 2 City Staff Assistance................................................................................................2 3 Term; Time of Performance.....................................................................................2 4 Compensation ..........................................................................................................2 5 Extra Work...............................................................................................................2 6 Method of Payment..................................................................................................3 7 Disposition of Plans, Estimates and Other Documents ...........................................3 8 Hold Harmless .........................................................................................................3 9 Professional Liability Insurance......................................................................…….4 10 Certificate of Insurance............................................................................................5 11 Independent Contractor............................................................................................6 12 Termination of Agreement.......................................................................................6 13 Assignment and Delegation......................................................................................6 14 Copyrights/Patents...................................................................................................7 15 City Employees and Officials..................................................................................7 16 Notices……………………………………………………………………………..7 17 Consent ....................................................................................................................8 18 Modification.............................................................................................................8 19 Section Headings .....................................................................................................8 20 Interpretation of this Agreement..............................................................................8 21 Duplicate Original....................................................................................................9 22 Immigration...............................................................................................................9 23 Legal Services Subcontracting Prohibited................................................................9 24 Attorney's Fees..........................................................................................................10 25 Survival.....................................................................................................................10 26 Governing Law .........................................................................................................10 27 Signatories.................................................................................................................10 28 Entirety......................................................................................................................10 29 Effective Date………………………………………………………………………11 262 City of Huntington Beach - Managed Library Services RFP Attachment 2 - Request for Proposal-Vendor Application Form 263 1 of 2 REQUEST FOR PROPOSAL VENDOR APPLICATION FORM TYPE OF APPLICANT:  NEW  CURRENT VENDOR Legal Contractual Name of Corporation: ______________________________________ Contact Person for Agreement: ____________________________________________________ Corporate Mailing Address: ________________________________________________ City, State and Zip Code: __________________________________________________ E-Mail Address: _________________________ Phone: ________________________ Fax: ________________________ Contact Person for Proposals: ______________________________________________________ Title:______________________________ E-Mail Address: ______________________ Business Telephone: _________________________ Business Fax: ________________ Is your business: (check one)  NON PROFIT CORPORATION  FOR PROFIT CORPORATION Is your business: (check one)  CORPORATION  LIMITED LIABILITY PARTNERSHIP  INDIVIDUAL  SOLE PROPRIETORSHIP  PARTNERSHIP  UNINCORPORATED ASSOCIATION Year Business was Established: ________________ 264 2 of 2 Names & Titles of Corporate Board Members (Also list Names & Titles of persons with written authorization/resolution to sign contracts) Names Title Phone ___________________________________ ________________ ___________________ ___________________________________ ________________ ___________________ ___________________________________ ________________ ___________________ ___________________________________ ________________ ___________________ ___________________________________ ________________ ___________________ ___________________________________ ________________ ___________________ Federal Tax Identification Number: __________________________________________ City of Huntington Beach Business License Number: _____________________________ (If none, you must obtain a Huntington Beach Business License upon award of contract.) City of Huntington Beach Business License Expiration Date: __________________________ 265 City of Huntington Beach - Managed Library Services RFP Attachment 3 – References Form 266 City of Huntington Beach Vendor Reference Form Please provide 5 references for similar services your firm provided. If possible include either other governmental agencies or local references Reference #1 Firm Name _____________________________________________________________________ Contact person __________________________________________________________________ Phone Number __________________________ Email __________________________________ Contract/project start and end dates __________________________________________________ Annual Project Costs $ ________________ Project Description _______________________________________________________________ Reference #2 Firm Name _____________________________________________________________________ Contact person __________________________________________________________________ Phone Number __________________________ Email __________________________________ Contract/project start and end dates __________________________________________________ Annual Project Costs $ ________________ Project Description _______________________________________________________________ Reference #3 Firm Name _____________________________________________________________________ Contact person __________________________________________________________________ Phone Number _________________________ Email ___________________________________ Contract/project start and end dates __________________________________________________ Annual Project Costs $ ________________ Project Description _______________________________________________________________ 267 Reference #4 Firm Name _____________________________________________________________________ Contact person __________________________________________________________________ Phone Number _________________________ Email ___________________________________ Contract/project start and end dates __________________________________________________ Annual Project Costs $ ________________ Project Description _______________________________________________________________ Reference #5 Firm Name _____________________________________________________________________ Contact person __________________________________________________________________ Phone Number _________________________ Email ___________________________________ Contract/project start and end dates __________________________________________________ Annual Project Costs $ ________________ Project Description _______________________________________________________________ 268 City of Huntington Beach - Managed Library Services RFP Attachment 4 – Non-Collusion Form 269 Non-Collusion Affidavit Note: To be executed by Proposer and submitted with proposal. State of (the State of the place of business) County of (the County of the place of business) , being first duly sworn, deposes and (name of the person signing this form) says that he/she is of (title of the person signing this form) , the party making the foregoing bid (name of bidding company) that such bid is not made in the interest of or on the behalf of any undisclosed person, partnership, company, association, organization or corporation; that such bid is genuine and not collusive or sham; that said bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that said bidder has not in any manner directly or indirectly sought by agreement, communication, or conference with anyone to fix the bid price of said bidder or of any other bidder or to fix any overhead profit, or cost element of such bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in such bid are true, and further, that said bidder has not directly or indirectly submitted his bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid and will not pay any fee in connection therewith, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, or to any other individual except to any person or persons as have a partnership or other financial interest with said bidder in the general business. By: (signature) Printed Name: (name of the person signing this form) Title: (title of the person signing this form) Notary is not required for this bid. 270 City of Huntington Beach - Managed Library Services RFP Attachment 5 – Insurance Requirements 271 Automobile Liability General Liability Professional Liability Property Insurance Workers' Comp Additional Insured Endorsements Contractors: Any persons or entities who contract with the City and/or provide services to the City which are readily available and efficiently procured by competitive bidding. Permittees: Any persons or entities who make application to the City for any use of or encroachment upon any public street, waterway, pier, or City property. Vendors: Any persons or entities who transfers property or goods to the City which may or may not involve delivery and/or installation. CITY OF HUNTINGTON BEACH INSURANCE REQUIREMENTS Note 2 - Workers' Compensation Exemption: If entity has no employees, a signed Declaration of Non-Employee Status form is required. Note 1 - Automobile Liability: The City of Huntington Beach, its officers, elected or appointed officials, employees, agents and volunteers must be named as certificate holder and as additional insured by separate attached endorsement. Permittees who do not use vehicles or equipment in connection with the permit shall not be required to provide auto insurance. To be exempt from this requirement, permittees must execute a declaration such as Exhibit 1 attached. Huntington Beach City Council Resolution No. 2008-63 requires submittal of certificates of insurance evidencing the following minimum limits with a California admitted carrier with a current A.M. Best’s Rating of no less than A:VII. See Exhibits A1 - 4 for sample forms. Email: Justin.Wessels@surfcity-hb.org or Heather.Campbell@surfcity-hb.org Phone: 714-374-5378 or 714-536-5210. Fax: 714-536-5212. Vendor Type Minimum Insurance Requirements Any deductible other than those allowed in this matrix, self-insured retentions or similar forms of coverage limitations or modifications must be approved by the Risk Manager and City Attorney of the City of Huntington Beach. NOTE: Waivers and / or modifications are discouraged and will be considered only under extraordinary circumstances. As required by the State of California, with Statutory Limits and Employer’s Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. (See Note 2 below.) Include the policy number and Additional Insured Endorsement Requirement statement below. (See Note 3 below.) Minimum of $1,000,000 per occurrence for bodily injury, personal injury and property damages. Allows up to $1,000 deductible.(See Note 1 below.) Combined single limit bodily injury and property damage. Minimum of $1,000,000 per occurrence. Allows up to $5,000 deductible. (Additional Insured Endorsement is always required with General Liability Ins.) Note 3 - Additional Insured Endorsement Requirements: The City, its officers, elected or appointed officials, employees, agents, and volunteers are to be covered as additional insureds by separate attached endorsement(s) as respects liability arising out of action performed by or on behalf of the contractor, products and completed operations of the contractor, premises owned, occupied or used by the contractor, or automobiles owned, leased or borrowed by the contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City. 272 Automobile Liability General Liability Professional Liability Property Insurance Workers' Comp Additional Insured Endorsements CITY OF HUNTINGTON BEACH INSURANCE REQUIREMENTS Huntington Beach City Council Resolution No. 2008-63 requires submittal of certificates of insurance evidencing the following minimum limits with a California admitted carrier with a current A.M. Best’s Rating of no less than A:VII. See Exhibits A1 - 4 for sample forms. Email: Justin.Wessels@surfcity-hb.org or Heather.Campbell@surfcity-hb.org Phone: 714-374-5378 or 714-536-5210. Fax: 714-536-5212. Vendor Type Minimum Insurance Requirements Any deductible other than those allowed in this matrix, self-insured retentions or similar forms of coverage limitations or modifications must be approved by the Risk Manager and City Attorney of the City of Huntington Beach. NOTE: Waivers and / or modifications are discouraged and will be considered only under extraordinary circumstances. Design Professionals: Professional service contractors who contract with the City and/or provide architectural and/or engineering services to the City. Professional Services: Services that involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficiently procured by competitive bidding pursuant to HB Muni Code 3.02. Services includes but are not limited to those services provided by appraisers, architects, attorneys, engineers, instructors, insurance advisors, physicians and other specialized consultants. 4) The reporting of circumstances or incidents that might give rise to future claims. 1) The policy retroactive date coincides with or precedes the professional services contractor’s start of work (including subsequent policies purchased as renewals or replacements). 2) The professional services contractor will make every effort to maintain similar insurance during the required extended period of coverage following project completion, including the requirement of adding all additional insureds. 3) If insurance is terminated for any reason, professional services contractor agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this agreement or permit. Claims made policies are acceptable if the policy further provides that: Minimum of $1,000,000 per occurrence and in the aggregate. Allows up to $10,000 deductible. 273 Automobile Liability General Liability Professional Liability Property Insurance Workers' Comp Additional Insured Endorsements CITY OF HUNTINGTON BEACH INSURANCE REQUIREMENTS Huntington Beach City Council Resolution No. 2008-63 requires submittal of certificates of insurance evidencing the following minimum limits with a California admitted carrier with a current A.M. Best’s Rating of no less than A:VII. See Exhibits A1 - 4 for sample forms. Email: Justin.Wessels@surfcity-hb.org or Heather.Campbell@surfcity-hb.org Phone: 714-374-5378 or 714-536-5210. Fax: 714-536-5212. Vendor Type Minimum Insurance Requirements Any deductible other than those allowed in this matrix, self-insured retentions or similar forms of coverage limitations or modifications must be approved by the Risk Manager and City Attorney of the City of Huntington Beach. NOTE: Waivers and / or modifications are discouraged and will be considered only under extraordinary circumstances. Licensees/Lessees: Any persons or entities who contract with the City for the use of public property. Combined single limit bodily injury and property damage. Minimum of $1,000,000 per occurrence. Allows up to $5,000 deductible. (Additional Insurance Endorsement is always required with General Liability Ins.) Full replacement cost with no coinsurance penalty provision. As required by the State of California, with Statutory Limits and Employer’s Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. (See Note 1 below.) Include the policy number and Additional Insured Endorsement Requirement statement below.(See Note 2.) Note 1 - Workers' Compensation Exemption: If entity has no employees, a signed Declaration of Non-Employee Status form is required. Note 2 - Additional Insured Endorsement Requirements: The City, its officers, elected or appointed officials, employees, agents, and volunteers are to be covered as additional insureds by separate attached endorsement(s) as respects liability arising out of action performed by or on behalf of the contractor, products and completed operations of the contractor, premises owned, occupied or used by the contractor, or automobiles owned, leased or borrowed by the contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City. 274 Minimum Insurance Requirements Professional Liability Design Professionals: Professional service contractors who contract with the City and/or provide architectural and/or engineering services to the City. Professional Services: Services that involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficiently procured by competitive bidding pursuant to HB Muni Code 3.02. Services includes but is not limited to those services provided by appraisers, architects, attorneys, engineers, instructors, insurance advisors, physicians and other specialized consultants. CITY OF HUNTINGTON BEACH INSURANCE REQUIREMENTS Huntington Beach City Council Resolution No. 2008-63 requires submittal of certificates of insurance evidencing the following minimum limits with a California admitted carrier with a current A.M. Best’s Rating of no less than A:VII. Any deductible other than those allowed in this matrix, self-insured retentions or similar forms of coverage limitations or modifications must be approved by the Risk Manager and City Attorney of the City of Huntington Beach. NOTE: Waivers and / or modifications are discouraged and will be considered only under extraordinary circumstances. 4) The reporting of circumstances or incidents that might give rise to future claims. Vendor Type Claims made policies are acceptable if the policy further provides that: Minimum of $1,000,000 per occurrence and in the aggregate. Allows up to $10,000 deductible. 1) The policy retroactive date coincides with or precedes the professional services contractor’s start of work (including subsequent policies purchased as renewals or replacements). 2) The professional services contractor will make every effort to maintain similar insurance during the required extended period of coverage following project completion, including the requirement of adding all additional insureds. 3) If insurance is terminated for any reason, professional services contractor agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this agreement or permit. 275 City of Huntington Beach 2000 Main Street, Huntington Beach, CA 92648 File #:24-414 MEETING DATE:6/18/2024 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Eric G. Parra, Interim City Manager VIA:Chau Vu, Director of Public Works PREPARED BY:Bill Krill, Real Estate and Project Manager Subject: Approve for introduction Ordinance No. 4230 to authorize execution of an Amendment to the Pipeline Franchise Agreement with Cardinal Pipeline, L.P. for the operation and maintenance of a pipeline system for the transportation of oil, gas, and other hydrocarbon substances Statement of Issue: The Franchise Agreement between the City of Huntington Beach and Cardinal Pipeline, L.P. expired on February 13, 2024. The Franchise Agreement is now up for extension and a ten-year Amendment is being proposed for the operation and maintenance of the existing pipeline system for the transportation of oil, gas, and other hydrocarbon substances. Financial Impact: The City will continue to receive a Base Annual Fee of $87,768.26 plus any adjustments by an annual rate of change based on the Consumer Price Index (CPI). For example, in 2023 the City received $126,001.25. Recommended Action: A) Approve for introduction Ordinance No. 4230, “An Ordinance of the City Council of the City of Huntington Beach Amending Ordinance No. 4008 which Granted an Oil Pipeline Franchise”; and, B) Approve and authorize the Mayor and City Clerk to execute the “Amendment to Franchise Agreement between the City of Huntington Beach and Cardinal Pipeline, L.P.” Alternative Action(s): Do not approve the recommended action and direct staff to draft correspondence informing Franchisee that existing pipeline must be abandoned pursuant to HBMC and State code. This action would result in revenue loss for the City. Analysis: City of Huntington Beach Printed on 6/12/2024Page 1 of 3 powered by Legistar™276 File #:24-414 MEETING DATE:6/18/2024 Staff is requesting approval of an Amendment to the Franchise Agreement between the City of Huntington Beach and Cardinal Pipeline, L.P. for the operation and maintenance of an existing pipeline system used for the transportation of oil, gas, and other hydrocarbon substances. The pipeline system consists of approximately 86,400 linear feet of 6-inch, 10-inch, and 12-inch diameter pipe. Cardinal Pipeline, L.P. acquired the rights granted under the Franchise Agreement and Ordinance 4075 from Paramount Petroleum Corporation in 2015. The Agreement , which was assumed by Cardinal Pipeline, had an expiration date of February 13, 2024. During the period from January 1, 2014, through December 31, 2023, the pipeline system was held as inactive. Since the Franchisee was not fully utilizing this pipeline, they were granted a 75% discount on the Base Annual Fee . The inactive period, as allowed under the agreement, was for a maximum of 10 years. This period has now expired and the Franchisee will be obligated to pay the entire Base Annual Fee for the duration of the extension period as per the Amendment. Terms of the proposed Amendment to the Franchise Agreement include: ·Term: 10 years ·Base Annual Fee: $87,768.26 + Annual CPI adjustment ·Corporate Surety Bond of $100,000 ·Liability, Environmental, and Workers Compensation Insurance Staff recommends approval of the Amendment to the Franchise Agreement. The Agreement provides substantial general fund revenue and ensures continued maintenance and responsibility for a vast pipeline network currently present within the City right-of-way. Environmental Status: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Strategic Plan Goal: Goal 1 - Economic Development, Strategy A - Develop an updated economic development strategy to ensure business retention, local investments and job growth. Attachment(s): 1. Ordinance No. 4230 2. Amendment to Franchise Agreement Between the City of Huntington Beach and Cardinal Pipeline L.P. 3. Cardinal Pipeline Performance Bond 4. Cardinal Pipeline Certificate of Insurance 5. Original Franchise Agreement 2014 City of Huntington Beach Printed on 6/12/2024Page 2 of 3 powered by Legistar™277 File #:24-414 MEETING DATE:6/18/2024 6. PowerPoint Presentation City of Huntington Beach Printed on 6/12/2024Page 3 of 3 powered by Legistar™278 279 ORDINANCE NO. 4230 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH AMENDING ORDINANCE NO. 4008 WHICH GRANTED AN OIL PIPELINE FRANCHISE WHEREAS, on February 3, 2014, the City Council adopted Ordinance No. 4008 which granted a franchise to Paramount Petroleum Corporation to construct, operate and maintain a pipeline for the transpmtation of oil; and On December 7, 2015, the City Council adopted Ordinance No. 4075, which approved the assignment of said franchise to Cardinal Pipeline, L.P.; and Cardinal Pipeline, L.P. and the City desire to extend said franchise for an additional ten (10) year period, NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The franchise awarded by Ordinance No. 4008, as amended by Ordinance No. 4075, is hereby extended for an additional period of ten (10) years as contained in the "Amendment of Franchise Agreement Between the City of Huntington Beach and Cardinal Pipeline, L.P.," a copy of which is attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein. SECTION 2. The City Clerk shall cause this ordinance to be posted in three places designated by the City Council within the City and to be published by title with a brief summary at least once within fifteen days after its adoption in a daily, semi-weekly or weekly newspaper, published in the County of Orange or the City and circulated in the City, which is selected by the City Council for that purpose. 24-14073/334472 280 ORDINANCE NO. 4230 PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the ___ day of __________ , 2024. Mayor ATTEST: INITIATED AND APPROVED: City Clerk Director o r Public Works REVIEWED AND APPROVED: City Manager flt_ 24-1 4073/3344 72 2 281 AMENDMENT TO FRANCHISE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND CARDINAL PIPELINE, L.P. THIS AMENDMENT is made and entered into by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation, hereinafter referred to as "City," and CARDINAL PIPELINE, L.P ., a Limited Partnership, hereinafter referred to as "Cardinal." WHEREAS, City and Cardinal are parties to that certain Franchise Agreement, as set forth in City Ordinances 4008 and 4075 which Franchise Agreement shall hereinafter be referred to as the "Original Agreement"; and City and Cardinal wish to amend the Original Agreement to extend the term thereof by an additional ten ( I 0) year period, NOW, THEREFORE, it is agreed by City and Cardinal as follows: I. TERM The term of the Original Agreement is extended for ten (10) additional years. The Original Agreement shall now expire on February 13, 2034. 2. REAFFIRMATION Except as specifically modified herein, all other terms and conditions of the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by and through their authorized officers on _________ , 2024. 24-14073/334471 282 CARDINAL PIPELINE, L.P. By:~~ print name Its: AND By: ___________ _ print name Its: REVIEWED AND APPROVED: City Manager 24-14073 /334471 CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Mayor City Clerk Director of Public Works 2 283 Cardinal Pipeline, L.P. a divis ion of Crimson ll1idstream, LLC 12/8/2023 City of Huntington Beach Public Works Department 2000 Main Street Huntington Beach, CA 92648 Subject: Bond # N-E000029 Replaces Bond #SU1173970 To whom it may concern: We are pleased to enclose the original of the above captioned bond issued as a replacement of Arch Insurance Company, Bond No. SU1173970. We ask that you please accept the enclosed bond and release Arch Insurance Company Bond No. SU1173970 as of November 22, 2023 by either signing the enclosed release form or by issuing a letter of release and return along with the original bond directly to the surety, principal or to me as follows: Tannis Mattson, Alliant Insurance Services, Inc ., 5444 Westheimer, Suite 900, Houston, TX 77056 Tan nis.mattson@alliant.com Miriam Ayala, Crimson Midstream LLC, 1900 Main Street, Suite 600, Irvine, CA 92614 mayala@crimsonpl .com Megan Laban, Arch Insurance Company, 2711 N. Haskell, Suite 1600, Dallas, TX 75204 m laban@arch i nsurance .com We trust you will find the enclosed in complete order. However, should you have any questions or concerns, please do not hesitate to contact the undersigned directly. Sincerely, ~yala ~ Operations Support Enclosed 1900 Main S treet, S uite 600 Irvine, CA 92614 Vi sit our web site a t www.CrimsonMjdstream.com 284 Cardinal Pip eline , L.P. a division of Crimson ~lid~-tream, LLC 12/8/2023 Mail/Email To: Tannis Mattson Alliant Insurance Services, Inc. 5444 Westheimer, Suite 900 Houston, TX 77056 P: 713 -470-4165 E: tannis.mattson@allia nt .com BOND RELEASE As of November 22, 2023, the undersigned by these presents, does for itself and its successors and assigns, unconditionally releases, and discharges Arch Insurance Company of and from all causes of action and all past and present claims and/or liability now or hereinafter arising under Bond No SUll 73970 in the amount of $100,000.00 issued for City of Huntington Beach . This release shall cause this bond to be null and void and terminate any obligation of Arch Insurance Company under this bond . In witness whereof, the undersigned has caused these presents to be signed by it's duly authorized agent on the __ day of _____ ~ 20 __ . City of Huntington Beach Public Works Department 2000 Main Street Huntington Beach, CA 92648 By _________________ _ (Signature) (Please print or type name) (Title) (Phone) 1900 Main Street , Suite 6 0 0 Irvine, CA 92614 Vis it our web site a t www.Crim~onMidstream.com 285 *Replaces and Supersedes Arch Insurance Company Bond #SU 1173970, Effective 11/22/2023° Performance Bond BOND # N-E000029 (Continuous) KNOW ALL MEN BY THESE PRESENTS: That we CARDINAL PIPELINE, LP ., as Principal, and lndemni National Insurance Company , a corporation duly incorporated under the laws of the State of MS and authorized to do business in the State of California, as Surety, are held and firmly bound unto CITY OF HUNTINGTON BEACH, as Obllgee, in the penal sum of One Hundred Thousand and 00/100 ($100,000.00) Dollars, for the payment of which we hereby bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written contract with the Obligee described as: Franchise Agreement for the construction, operation and maintenance of a pipeline system for the transportation of oil, gas and other hydrocarbon substances dated FebNary 14, 2014, contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION ARE SUCH , that if the Principal shall faithfully perform all duties of the Contract according to its terms, covenants and conditions, then this obligation shell be void, otherwise to remain in full force and effect. PROVIDED, HOWEVER, that 1. The term of this bond is for the period commencing on the 11/22/2023 and ending 11/22/2024 unless released by the Obligee prior thereto. However, the term of this bond will automatically renew for additional one-year period(s) unless the bond has been released by the Obligee. Any suite under this bond must be instituted before the expirati on of 12 months from the date on which final payment falls due 2. Neither nonrenewal nor cancellation by the Surety, nor failure of the Principal to provide the Obligee with a replacement bond, shall constitute default under this bond. 3. In the event the Principal shall be declared by the Obligee to be in default under the Contract, the Obligee shall provide the Surety with a written statement setting forth the particular facts of said default no later than thirty (30) days from the date of said default, which notice shell be sent to the Surety by registered mail to the address stated in provision #6 below. 4. The Surety will have the right and opportunity, at its option, and in its sole discretion, to: a .) cure the default; b .) assume the remainder of the Contract and to perform or sublet same; c .) or to tender to the Obligee funds sufficient to pay the cost of completion less the balance of the Contract price up to an amount not to exceed the penal sum of the bond. In no event shall Surety be liable for fines, penalties, liquidated damages or forfeitures assessed against the Principal. 5 . The Obligee's acceptance of this bond and reliance upon it as security constitutes its acknowledgement and agreement as to the terms under which is offered and issued by the Surety. 6 . All notices, demands and correspondence with respect to this bond shall be in writing and addressed to: Indemnity National Insurance Company, 238 Bedford Way, Franklin, TN 37064 Signed and sealed this 22nd day of Nov , 20 23. ~~~ Sandra Pari<er, Attorney-in-Fact 286 PRINCIPAL'S ACKNOWLEDGMENT State of _______ _ County of ________ _, On ____________ , before me ___ __,"------------ personally appeared ___________ .....,,.._. nown to me to be the person who executed the within instrument as _____ ,,,__ __ on behalf of the _______ _ ----------------'-----·· and acknowledged to me that said corporation executed the same. My Commission Expires. __ ___,~-------• 20 __ _ SURETY'S ACKNOWLEDGEMENT State of Texas County of ~Hw.ia~m!.!l:·s~------') On 1112212023 , before me. ____ T..;.;a;;;..nc.;.nic:..s.;.;.M;.;;;;attso=;.;.."-------- personally appeared __,silliaw:nd..,.raai:..Pa111rk,Ale;u.r _______ known to me to be the person who executed the within instrument as Attorney-in-Fact on behalf of the Indemnity National _ln_s_ur_a_nc_e_c_o_m,;_pa_n..:..y _____________ , and acknowledged to me that said corporation executed the same. My Commission Expires __ Fe_b_ru_a_ry_1_1th ______ ,, 20_2_4 __ Signat e ;{ijl /lJ LJ al) WITNESS my hand an~ £~o0Mattso~ 287 ; CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ORANGE } On DECEMBER 7 2023 Date before me, ANGIE ILLESCAS A NOTARY PUBLIC Here Insert Nome and Title of the Officer personally appeared --'-'-M"""A""N-'-'D~Y'---'-'K'-'-RO=ET"'S:..cC"'H_,_ ________________ _ Name(/.) of Signer(i) who proved to me on the basis of satisfactory evidence to be the person(/1) whose name(,() isl-subscribed to the within instrument and acknowledged to me that ,i,eishe/thl!,y executed the same in ~/her/tm,ir authorized capacit~ and that by t,;,,/'her/11,eir signature(/) on the instrument the person{t), or the entity upon behalf of which the person(~ acted, executed the instrument. ANGIE ILLESCAS I COMM, #2416221 z Notary Public • California ~ Los Angeles County Comm, Ex res Oct. 8, 2026 Place Notary Seal and/or Stamp Above NOTARY PUBLIC-CALIFORNIA LOS ANGELES COUNTY COMM. #2416221 MY COMM. EXPIRES OCT. 8, 2026 ©2019 National Notary Association I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 288 Power of Attorney Indemnity Nationa( Insurance Comyany 238 Bedford Way Franklin, TN 37064 KNOW ALL PERSONS BY THESE PRESENTS: that Indemnity National lnsurance Company, a Mississippi corporation, (hereinafter the "Company"), does hereby constitute and appoint: ......... Sandra Parker, Stacy Killebrew, Megan Sivley,* ........... . ........ Melissa Haddick, Orlando Aguirre, Tannis Mattson........................... of Alliant Insurance Services, Inc. to be its true and lawful Attorney-in-Fact, with full power and authority hereby conferred to sign, seal, and execute on its behalf surety bonds or undertakings and other documents of a similar nature issued in the course of its business up to a penal sum not to exceed ............ "'Twenty-five Million Dollars ($25,ooo,ooo.om•0 .......................................... each, and to bind the Company thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the Company. This appointment is made under and executed pursuant to and by authority of the following Minutes of Special Actions Taken by Written Consent of the Board of Directors, which is now in full force and effect: Authorization to Appoint Attorneys-in-Fact and the Use of Facsimile Signatures and Facsimile Seals for the Purpose of Issuing Bonds: RESOLVED: That the president or any vice president may appoint attorneys-in-fact or agents with authority a s defined or limited in the instrument evidencing the appointment in each case, for and on behalf of the Company to execute and deliver and affix the seal of the Company to bonds and related obligatory certificate s and documents; and any one of said officers may remove any such attorney-in-fact or agent and revoke any power previously granted to such person, whether or not such officer appointed the attorney-in-fact or agent. RESOLVED: That any bonds and related obligatory certificates and documents shall be valid and binding upon the Company, (i) when signed by the president, or any vice president, and sealed with the Company seal; or (ii) when duly executed and sealed with the Company seal by one or more attorneys-in-fact or agents pursuant to and within the limits of authority evidenced by the power of attorney issued by the Company to such person or pe.rsons a certified copy of which power of attorney must be attached thereto in order for such obligation to be binding upon the Company. RESOLVED: That the signature of any authorized officer and the seal of the Company may be affixed to any power of attorney or certification thereof authorizing the execution and delivery of any bonds and related obligatory certificates and documents of the Company and such signature and seal then so used shall have the same force and effect a s though manually affixed. IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seal of Indemnity National insurance Company has been affIXed thereto in Lexington, Kentucky this 20th day of August, 2021. State of Kentucky County of Fayette Indemnity National Insurance Company .,#~ Thomas F. Elkins, President On this 20th day of August, 2021 , before me, a Notary Public, personally came Thomas F. Elkins , to me known, and acknowledged that he is President of Indemnity National Insurance Company; that he knows the seal of said corporation; and that he executed the above Power of Attorney and affixed the corporate seal oflndemnity National Ins urance Company thereto with the authority and at the dire ction of said corporation. CERTIFICATE My Commission Expires 09/26/2025 Notary ID Number. KYNP34336 1, James E. Hart, Secretary of Indemnity National Insurance Company, do hereby certify that the foregoing Power of Attorney is still in full force and effect, and further c ertify that the Minutes of Special Actions Taken by Written Consent of the Board of Directors are now in full force and effect. IN TESTIMONY WHEREOF I have subscribed my name and affixed the seal of said Company. Dated this 2 2nd day of November 20~. 289 ,e_Rv" CERTIFICATE OF LIABILITY INSURANCE I DATt:! (MM/OD/YYYY) 4/1/2024 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: If the certificate holder Is an AOOIIIONAL INSURED, the pollcy(les) must have ADDITIONAL INSURED provisions or be endorsed, If SUBROGATION IS WAIVED 1 subject to the torms and conditions of the policy, certain pollcles may require an endorsement. A statement on this ocrtlflcate does not confer rights to the oort!floate holder In lleu of such endorsement(s), PRODUCJlR ~~~~or Erick Lonez Allianl Insurance Services Houston, LLC f.'12 1W ..,_ .. , If~~ .. , 1330 Post Oak Blvd. Suite 300 ~-MAIL Erlck,Looez®Alllant.com '"""1!1'18• Houston TX 77056 INSURER/SI AFFORDING OOVERAO~ NAIO# license#: 0C36061 IHSURARA: Arch Insurance Comnanv 11150 INSURED CRlf.tMID•Ol 1NSURER s: Llovd's of London 0 Cardinal Pipeline LP. IHSURERC: 1900 Main Street, Suite 600 Irvine CA 92614 INSURER 0: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 91678726 REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, 1~,!i~ 'JYPI':: OJ:! 1/lSUMNCI:! ADDL SUBR 1 ,~8M&'Cru,. I l~~f6%URf .. LIMITS POLICY NUMBER B X COMMEllCIAL (mNERAL LIAalLln' y y EN0043323 11/!/2023 11/1/2024 E:ACH OCCURRENCE! $1,000,000 ~ ~ ClAIMS,MAOI:: [8J OCCUR ~fufMIB'M9rac::!~~ncGI -$100,000 -Ml!O EXP {Anyo!\Oporson) $10,000 PERSONAL & ADV INJURY S 1,000 000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE S 2,000,000 Z1 POUOV □ f P.8'f □ LOO PRODUCTS-COMP/OP AGO $2 000,000 OTHER: $ A AUTOMOBILE LIABILITY y y -81CAB5008603 11/1/2023 11/1/2024 ~~~~l~~~t~INGLE LIMIT $1,000,000 X ANY AUTO BOOll" INJURY (Par parson) $ --OWNED SCHEDULED AUTOS ONLY AUTOS aomt. y INJURY (Pot acddonl) $ --HJIU::D N.ON•OWNED Firo?~&~~fiAMAGE $ -AUTOS ONLY -AUTOS ONLY $ B X UMBRELLALIAB Fl OCCUR y y EN0043423 11/1/2023 11/1/2024 EACH OCCURRENCE $6,000,000 -EXOESSLIAB CLAIMS,MADE AGGREGATE $ D<:.O l I REIENrlON $ $ A WORKERS COMPENSATION y 01WOl5000404 11/1/2023 11/1/2024 X I ~TA'UTE I I ~~H-AND EMPLOYERS' LIAlllLITY YIN ANYPROPftlETORiPMTNERlt:Xt:CUTlVE ~ NIA t:.L l!ACH Accmrnr $1,000,000 OFF!CER/MEMBEREXCLUOEO? fMandatoiy In NH) ~.L. DISEASI': 0 EA EMPI.OYEE $1,000,000 6~t~~/i;'{r3~ int~PERAT!ONS below El. DISEASE, POLICY LIMIT S 1,000,000 B Pol111Uon llab, EN0043423 1111/2023 1111/2024 Agg limit 6,000,000 ' APPROVED AS TO FOR DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Addlllooal Remaoka Sci"'"'• m,y be attached II n,o,a epac<> la ,aq,lced} \~ See Attached.,. CERTIFICATE HOLDER c1i of Huntington Beach 20 O Main Street Hunllngton Beach CA 92648 I ACORD 25 (2016/03) l,y;___ MICHAELE. GATES CITY ATTORNEY CITY OF HUNTINGTON BEACH CANCELLATION SHOULD ANY or THE ABOVE DESCRIBED ):>OLICIES BE CANCELLED BEFORE THE EXPIRAllON DAlE THEREOF 1 NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS, AUTHORIZED REPRESENTATIVE ~ --- ©1988-2015 ACORD CORPORATION, All rights reserved, The ACORD name and logo are reglslered marks of ACORD 290 AGENCY CUSTOMER ID: _C_R_IM_M_ID_-_0_1 _____________ _ LOC II: ______ _ ADDITIONAL REMARKS SCHEDULE MENCY NAMED INSURED Alllant Insurance Services Houolon, Ll.C cardinal Pipeline L.P. 1900 Main Sireel, Suite 600 POLICY HUMBER Irvine CA 92614 CARRIER I HAICCOD!: Ef'FEOTIV.E DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE 2nd Layer Excess Llablllly Excluding Pollullon Polley No. EN0043523 Polley Term: 11/1/2023 -11/1/2024 Insurer: Underwriters al Lloyd's Limit: $20MM xs $5MM Each Occurrence 2nd Layer Excess Llablllty Including Pollullon Polley No. : EN0043523 Polley Term: 11/1/2023 -11/1/2024 Insurer: Mosaic Syndicate Limit: $20MM xs i5MM Each Occurrence Gradual & Difference In Condll!ons Pollution Polley No. ISPILLSB93S7003 Polley Term: 1111/2023 -1111/2024 Insurer; rronshore Specially Insurance Company Llmll: $1MM Each Occurrence Gradual & Difference in Condlllons Pol!uUon Polley No, IEELPLLB93TG003 Polley Term: 11/1/2023 -11/1/2024 Insurer: lronshore Specialty Insurance Company Limit: $24MM xs $1MM Each Occurrence Page 1 of 1 The City of Hunllngton 8each 1 Its officers 1 elected or appointed officials, employees 1 agents and volunteers are Included as Additional Insured In accordance with Iha policy provisions of lhe General Llablllly, Automobile Llablllly end Exr.ess Llablllly policies. Genorol Llablllly policy evidenced herein Is Primary and Non-Contributory to other Insurance available to an Add!tlonal Insured, but only In accordance with !he policy's provisions. ACORD 101 {2000101) © 2008 ACORD CORPORATION, All rights rosetved. The ACORD namo and logo at'e registered marks of ACORD 291 POLICY NUMBER: B0831 EN0043323 COMMERCIAL GENERAL LIABILITY CG 2010 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Omanlzalion(sl Locatlon(sl Of Covered Operations The City of Huntingdon Beach, As per schedules held on file in the offices its officers, elected or appointed officials, of Ardonagh Specialty Limited Ua Price employees, agents and volunteers. Forbes & Partners Information reaulred to comolete this Schedule, If not shown above, will be shown In the Declarations. A. Section II -Who Is An Insured is amended to Include as an additional Insured the person(s) or organlzation(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising Injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acls or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1, The insurance afforded to such additional Insured only applies to the extent permitted by law; and 2. If coverage provided to the additional Insured is required by a ccntract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional Insured. B. With respect to the insurance afforded to these additional Insureds, the following additional exclusions apply: This Insurance does not apply to "bodily Injury" or "property damage" occurring after: 1. All work, Including materials, parts or equipment furnished in ccnneclion with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional lnsured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the Injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged In performing operations for a principal as a part of the same project. CG 2010 0413 © Insurance Services Office, Inc., 2012 Page 1 of 2 292 C, With respect to the Insurance afforded to these additional insureds, the following is added to Section 111-Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured Is the amount of Insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown In the Declarations; whichever Is less. This endorsement shall not Increase the applicable Limits of Insurance shown In the Declarations. Page 2 of2 © Insurance Services Office, Inc., 2012 CG20100413 293 POLICY NUMBER: B0831 EN0043323 COMMERCIAL GENERAL LIABILITY CG 20 37 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -COMPLETED OPERATIONS This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Oraanizatlon(sl Location And Description Of Completed Operations The City of Huntingdon Beach, As per schedules held on file in the offices its officers, elected or appointed officials, of Ardonagh Specialty Limited t/a Price employees, agents and volunteers. Forbes & Partners Information required to complete this Schedule, if not shown above will be shown in the Declarations. A. Section Ii -Who Is An Insured Is amended to include as an additional Insured the person(s) or organlzation(s) shown In the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or In part, by "your work" at the location designated and described In the Schedule of this endorsement performed for that additional Insured and included in the "products-completed operations hazard 11 • However: 1. The Insurance afforded to such additional insured only applies lo the extent permitted by law; and 2. If coverage provided to ihe additional Insured Is required by a contract or agreement, the insurance afforded to such eddlllonal Insured will not be broader than that which you are required by the contract or agreement to provide for such additional Insured. B. With respect to the Insurance afforded to these additional insureds, the following is added to Section Ill -Limits Of Insurance: If coverage provided to the additional Insured is required by a contract or agreement, the most we will pay on behalf of the additional Insured is the amount of Insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever Is less. This endorsement shall not Increase the applicable Limits of Insurance shown In the Declarations. )j CG20370413 © Insurance Services Office, Inc., 2012 Page 1 of 1 294 Bishopsgate MARKET REFORM CONTRACT SECTION IV-COMMERCIAL GENERAL LIABILITY CONDITIONS 831 BIB llem 4 Other Insurance a. Primary l11sura11ce Is subject to the PRIMARY INSURANCE ENDORSEMENT as follows: - II Is agreed that where the Insured Is named as an additional Insured on the pollcy(les) of others, this policy shall only apply In excess of and shall not be contributory with other said pollcy(les), Notwithstanding the above or any other clauses contained within this policy It Is agreed where required by written contract this policy shall be primary and non-contributory to any other valid and collectable lnsui'ance, All other terms, clauses and conditions remain unaltered, CORENERGY INFRASTRUCTURE TRUST UMR: B0831EN0043,12.1 Author Checker cf J¥ J, \1/eld P. Durtor, Page 13 If plncec/ viii /.'Pt l/Jls box WIii llflf h<1 simu-1d 295 Bishopsgate MARKET REFORM CONTRACT ADDITIONAL INSURED CGU 13 0 T The following amendments lo the wording are effected: " 1. the first sentence of Insuring Agreement a. Is deleted and replaced by the following: 831 BIB a. We will pay those sums that the Insured and any "additional Insured" as far as applicable becomes legally obligated to pay as damages because of "bodily Injury" or "property damage" to which this Insurance applies, 2. The following Is incorporated In the DEFINITIONS; "addltlonal Insured" means any person or entity lo whom the "Insured" Is obliged by an "Insured contract" entered Into before any relevant "occurrence" lo provide Insurance such as Is afforded by this Insurance with respect to "bodily lnju,y" or "propeIty damage" arising out of operations conducted by the "Insured" but only to the extent required by any Indemnity given by the "insured" In said "Insured contract" to the "addlllonal Insured". 3, The following Is Included In the DEFINITIONS; "Third party" means any company, entity, or person other than an "Insured" or other than a subsidiary, owned or controlled company or entity of an "Insured". Notwithstanding Section 11.2.a., your "employees", other than either your "executive officers" (If you are an organization other than a partnership, joint venture or limited llablllty company) or your managers (If you are a limited llablllty company) shall be treated as a "third party", All other terms, clauses and conditions remain unaltered. (CGU 13 0 T) CORENERGY INFRASTRUCTURE TRUST UMR: 80831EN0043323 Author cf Page 24 II plmmtl via PM. t/Jfalmx wilf 11ollm slfmRr/ 296 Bishopsgate MARKET REFORM CONTRACT WAIVl;R OF SUBROGATION ENDORSEMENT 831 BIB We agree to waive our rights of subrogation against any principal where waiver Is required by written contract but only In respect of llablllly for Bodily Injury and/or Property Damage arising out of operations performed by you and only to the extent required under said wrlllan contract. All other terms, clauses and conditions remain unaltered, (CGU12L) CORENERGY INFRASTRUCTURE TRUST UMR: /30831EN0043323 Aulhor cf Page 25 h' /Jlac0d vll1 f.1/Jt t/J(,:; hox W/IJ I/Of /)O sly1wcl 297 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY EARLIER NOTICE OF CANCELLATION PROVIDED BY US ENDORSEMENT This endorsement changes the policy to which It Is attached effective on the Inception date of the policy unless a different dale Is Indicated below. (The following "attached clause" Is to be completed only when this endorsement Is Issued subsequent to prepara- tion of the policy.) This endorsement, effective on 11/01/2023 at 12:01 AM. standard time, forms a part of Policy No.81WCI5008404 of the Issued to CRIMSON MIDS'rREAM OPERATING I LLC (Named Insured) Insurance Company Authorized Representative For any statutorily permitted reason other than nonpayment of premium, the number of days required for notice of cancellation, as provided In paragraph 2. of either the CANCELLATION Common Polley Condition or as amended by an applicable state cancellation endorsement, Is Increased to the number of days shown In the Schedule be- low. All the terms and conditions of the Polley which are not Inconsistent with this endorsement continue to apply. SCHEDULE Number of Days' Notice: 60 00 WC004 00 11 03 Page I of I 298 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY POLICY NUMBER:81WCI5008 404 TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT WC 42 03 04 B {Ed. 6-14) This endorsement applies only to the Insurance provided by lhe policy because Texas is shown In Item 3,A, of the Information Page. We have the right to recover our payments from anyone liable for an Injury covered by this policy. We will not enforce our right against the person or organization named In the Schedule, but this waiver applies only with respect to bodily Injury arising out of the operations described In the Schedule where you are required by a written contract to obtain this waiver from us. This endorsement shall not operate directly or indirectly to benefit anyone not named In the Schedule. The premium for this endorsement Is shown In the Schedule. Schedule 1. {□) Specific Waiver Name of person or organization (181) Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: 3. Premium: The premium charge for this endorsement shall be 2 percent of the premium developed on payroll In connection with worl< performed for the above person(s) or organlzatlon(s) arising out of the operations described. 4. Advance Premium: !NCLUOlllO This endorsement changes the policy to which it is attached and Is effective on the date Issued unless othe1wlse stated. {The Information below Is required only when this endorsement is Issued subsequent to preparation of the policy.) Endorsement Effective 11/01/2023 Policy No. 81WCl5008404 Insured CRIMSON MIDSTREAM OPERATING, LLC. Insurance Company ARCH INSURANCE COMPANY Endorsement No. Premium INCL. DATE OF ISSUE: Countersigned By --------------~ WC 42 03 04 B (Ed. 6-14} © Copyright 2014 National Counoll on Compensation J11suronco 1 Inc, AU Rights ~eserved, 299 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY POLICY NUMBER: 81WCI5008404 WC 00 0313 {Ed, 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy, We will not enforce our right against the person or organization named In the Schedule, (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named In the Schedule. Schedule ANY PERSON OR ORGANIZATION WHERE WAIVER Oli' OUR RIGHT TO RECOVER IS PERMITTED BY LAW AND IS REQUIRED BY WRITTEN CONTRACT PROVIDED SUCH CONTRACT WAS EXECUTED PRIOR TO DATE Oli' LOSS, This endorsement changes the policy to which ii is attached and Is effective on the date Issued unless otherwise stated. (The lnfonnatlon below Is required only when this endorsement Is Issued subsequent to preparation of the policy.) Endorsement Effective 11/01/2023 Polley No. 81WCl5008404 Endorsement No, Premium INCL. Insured CRIMSON MIDSTREAM OPERATING, LLC Insurance Company ARCH INSURANCE COMPANY DATE OF ISSUE: WC000313 (Ed, 4-84) @ 1983 National Councli on Compensation Insurance, Countersigned By _____________ _ 300 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EARLIER NOTICE OF CANCELLATION PROVIDED BY US This endorsement modifies Insurance provided under the followlng: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM SCHEDULE Number of Pays' Notice 6 0 (If no entry appears above, information required to complete this Schedule will be shown In the Declarations as applicable to this endorsement.) For any statutorily permilled reason other than nonpayment of premium, the number of days required for notice of cancellation, as provided In paragraph 2. of either the CANCELLATION Common Polley Condition or as amended by applicable state cancellallon endorsement, is Increased to the number of days shown In the Schedule above. All other terms and conditions of this Polley remain unchanged. Endorsement Number: Polley Number: 81CAB5008603 Named Insured: CRIMSON MIDSTEAM OPERATING, LLC This endorsement Is effective on the Inception date of this Polley unless otherwise stated herein: Endorsement Effective Date: 11/01/2023 00 CA0039 00 10 13 Page 1 of 1 301 POLICY NUMBER: 81CAB5008 603 COMMERCIAL AUTO CA04441013 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (WAIVER OF SUBROGATION) This endorsement modifies Insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. This endorsement changes the policy effective on the Inception date of the policy unless another date Is Indicated below. N MIDSTR• Endorsement Effective Date: 11/01/2023 Name(s) Of Person(s) Or Organlzatlon(s): SCHEDULE ANY PERSON OR ORGANIZAION WHERE WAIVER OF OUR RIGHT TO RECOVER IS PERMITED BY LAW AND IS REQUIRED BY WRITTEN CONTRACT PROVIDED SUCH CONTRACT WAS EXECUTED PRIOR TO THE LOSS, Information renulred to comnlete this Schedule If not shown above will be shown In the Declarations, The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organlzatlon(s) shown In the Schedule, but only to the extent that subrogation Is waived prior to the "accident' or the 'loss" under a contract with that person or organization, CA04441013 © Insurance Services Office, Inc., 2011 Page 1 of 1 302 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED • BLANKET This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM Under Covered Autos Liability Coverage, the Who is An Insured provision Is amended to Include as an "Insured" the person or organization who Is required under a written contract to be Included as an "insured" under this policy, but only with respect to their legal liability for your acts or omissions or the act or omissions of a person for whom Covered Autos Liability Coverage Is afforded under this policy. All other terms and conditions of this policy remain unchanged. Endorsement Number: Polley Number: 81CAB5008603 Named Insured: CRIMSON MIDSTREAM OPERATING, LLC This endorsement Is effecllve on the Inception date of this Polley unless otherwise stated herein: Endorsement Effective Date: 11/01/2023 00 CA0115 00 10 13 Page 1 of 1 303 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. PRIMARY AND NON-CONTRIBUTING INSURANCE ENDORSEMENT· DESIGNATED CONTRACT(S) This endorsement modifies Insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM SCHEDULE Designated Contract{s): ALL PARTIES WHERE REQUIRED IN A WRITTEN CONTRACT With respect to the contract{s) designated In the Schedule above, it Is agreed that the following subparagraph e. is added to SECTION IV • BUSINESS AUTO CONDITIONS, Paragraph B. 5. and SECTION V -GARAGE CONDITIONS, Paragraph B. 5. 5. Other Insurance e. With respect to SECTION II • LIABILITY COVERAGE, where you are specifically required by a written contract designated In the Schedule above to provide Insurance that Is prlma1y and non"contrlbutory, and the written contract designated in the Schedule above so requiring Is executed by you before any "accident", this Insurance will be primary and the other Insurance will not contribute with this Insurance, but only to the extent required by that written contract. All other terms and conditions of this Policy remain unchanged. Endorsement Number: This endorsement Is effective on the Inception date of this policy unless otheiwlse stated herein. {The Information below is required only when this endorsement Is issued subsequent to preparation of the policy.) Policy Number: 81CAB50086023 Named Insured: CRIMSON MIDSTREAM OPERATING, LLC Endorsement Effective Date: 11/01/2023 00 CA0116 00 04 10 Page 1 of 1 304 Bishopsgate MARKET REFORM CONTRACT 831 BIB II. CONDITIONS This Polley Is subject to the following conditions: 1. APPEALS In the event the "Insured" elects not to appeal a judgement which may, In whole or In part, Involve Indemnity under thts Polley, Undeiwrlters may, following discussion with the "Insured", elect to make such appeal at their own cost and expense and shall pay for the taxable costs and disbursements and any additional Interest Incidental to such appeal; but In no event shall Undeiwrlters' share of "Ultimate Net Loss" exceed the relevant Limits of Liability set out In Item 4 of the Declarations plus such costs, expenses, disbursements and Interest. 2. ASSIGNMENT Assignment of Interest under this Polley shall not bind .Undeiwrlters unless and unlll their written agreement thereto is secured. 3. CANCELLATION Cancellation of this Policy may be effected either (a) by the "Insured", or (b) by Undeiwrlters or their representatives. The "Insured" may cancel lhls Polley by malling or delivering advance written notice to Undeiwriters or their representatives stating when the cancellation Is to take effect. If Undeiwriters cancel the Policy because of non-payment of premium, they or their representatives must mail or deliver to the "Insured" not less than fifteen (15) days advance written notice stating when the cancellation Is to take effect. If Undeiwrilers cancel for any other reason, they or their representatives must mall or deliver to ti1e "Insured" not less than ninety (90) days advance written notice stating when the cancellation Is to take effect. Malling of notice by Undetwrlters or their representatives to the "Insured" at the malling address shown In Item 1 of the Declarations will be sufficient to prove notice. The Polley Period will end on the day and hour stated In the cancellation notice. If Undeiwrlters cancel the Polley, final premium will be calculated pro rata based on the time that this Polley was In force. If the "Insured" cancels the Polley, final premium will be more than pro rata; It wlll be based on the time this Polley was In force and Increased by Underwriters' short rate cancellation table and procedure. Premium adjustment may be made at the time of canoellatlon or as soon as practicable thereafter but the cancellation will be effective even If no refund has been made or offered to the "Insured". Undeiwrlters' cheque, or their representative's cheque, malled or delivered, shall be sufficient tender of any refund due to the "Insured". The first named "Insured" In Item 1 of the Declarations shall act on behalf of all other "Insureds" with respect to the giving and receiving of notice of cancellation and the receipt of any refund that may become payable under the Polley. Any of these provisions that conflicts with a law that controls the cancellation of the Insurance to which this Polley applies Is changed by this statement to comply with the law. CORENERGY INFRASTRUCTURE TRUST UMR: B0831EN0043423 Slip Leader: Author ti Pnga 10 If Jlhu:ml vh1 Pf-'/. !Ills box wi/J1wtl>o ,'lignocl 305 Bishopsgate MARKET REFORM CONTRACT 831 BIB 21. for any "Claim" not covered by the underlying lnsurance(s) listed In Item 2 of the Declaratlons other than such lnsurance(s) that are self Insured to the extent referred to In Insuring Agreement 3. This exclusion will not apply to the extent that such "Claim" would have been covered except for the reduction or exhaustion of an aggregate limit shown In llem 2 of the Declarations by payment of "Clalm(s)" for "Occurrence(s)" which are also covered by this Polley, Nothing contained In the above Exclusions shall extend this Polley to cover any llablllty which would not have been covered had these Exclusions not been Incorporated herein. IV. DEFINITIONS 1. ADDITIONAL INSURED The words "Additional Insured", wherever used In this Polley, shall mean any person or entity to whom the "Insured" Is obliged by an "Insured Contract" entered Into before any relevant "Occurrence" and/or "Claim" to provide Insurance such as Is afforded by this Polley with respect to "Bodily Injury" or "Property Damage" arising out of operations conducted by the "Insured" but only to the extent required by any Indemnity given by the "Insured" In said "Insured Contract" to the "Addltlonal Insured", 2. ADVERTISING INJURY The words "Adverllslng Injury", wherever used In this Polley, shall mean Injury to a "Third Party" arising out of the "lnsured's" advertising activities, but only If such inju1y arises out of: (a) oral or written publlcatlon of material that slanders or libels a person or organisation or disparages a person's or organisation's goods, products or services; (b) oral or written publication of material that violates a person's right to privacy; (c) misappropriation of advertising Ideas or style of doing business; or, (d) Infringement of copyright, title or slogan, 3, AIRCRAFT LIABILITY The words "Aircraft Liability", wherever used In this Polley, shall mean liability arising out of the maintenance, operation or use of an aircraft, aeroplane or helicopter which is designed to fly In the air or atmosphere. 4, AUTOMOBILE The words "Automobile," wherever used In this Polley, shall mean a land motor vehicle, trailer or semi- trailer designed for travel on public roads, Including any attached machinery or equipment, but the word "Automobile" shall not Include the contents of such vehicle, trailer or semi-trailer. 5, AUTOMOBILE LIABILITY The words "Automobile Llablllty," wherever used In this Polley, shall mean liability arising out of the maintenance, operation or use of any "Automobile". CORENERGY INFRASTRUCTURE TRUST UMR: B0831EN0043423 Author Checker cf j; Pa9818 Slip Leader: If plu<:mf via PJJI. 111/,'l !lox Will not he ,">i!)ned 306 Bishopsgate MARKET REFORM CONTRACT COMMON POLICY CONDITIONS All Coverage Parts Included In t11ls policy are subject lo Iha following conditions. A. CANCELLATION 1. The first Named Insured shown In the Risk Details may cancel this policy by malling or delivering to us advance written notice of cancellation. 2. We may cancel this policy by malling or delivering to the first Named Insured written notice of cancellation al least: a. 10 days before the effective dale of cancellation if wa cancel for non-payment of premium; or b. 60 days before lhe effective dale of cancellallon If we cancel for any other reason. 3. We will mall or deliver our notice to the first Named lnsured's last mailing address known to us. 831 BIB 4. Notice of cancellation will slate the effective date of cancellation. The policy period will end on that date. 5. If this policy Is cancelled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata. The cancellallon will be effective even If we have not made or offered a refund. 6. If notice Is malled, proof of malling will be sufficient proof of nollce. B,CHANGES This policy contains all the agreements between you and us concerning the Insurance offered. The first Named Insured shown In the Declarations Is authorised to make changes In the terms of this policy wilh our consent. This policy's terms can be amended or waived only by endorsement Issued by us and made part of this policy. C. EXAMINATION OF YOUR BOOKS AND RECORDS We may examine and audit your books and records as they relate to lhls policy at any time during the policy period up lo three years afterward. D, INSPECTIONS AND SURVEYS We have lhe right bul are not obligated to: 1. Make Inspections and surveys at any time; 2. Give you reports on the conditions we find; and 3, Recommend changes. Any Inspections, surveys, reports or recommendations relate to lnsurablllty and lhe premiums to be charged, We do not make safely Inspections. We do not undertake to perform the duty of any person or organisation to provide for the health or safety of workers or \he public. And we do not warrant that conditions: 1. Are safe or healthful; or 2. Comply with laws, regulations, condes or standards. This condition applies not only to us, but also to any rating, advisory, rate service or similar organisation which makes Insurance Inspections, surveys, reports or recommendations. CORENERGY INFRASTRUCTURE TRUST UMR: B0831EN0043323 Author Page 10 II J;/m;ed vk1 PPI., fhl~ box w/11 not f,o signocl 307 Bishopsgate MARKET REFORM CONTRACT WAIVER OF SUBROGATION ENDORSEMENT 831 BIB We agree to waive our rights of subrogation against any principal where waiver Is required by written contract but only In respect of llablllly for Bodily Injury and/or Properly Damage, arising out of operations performed by you or on your behalf and only to the extent required under said written contract CGU12L (Amended) All other terms, clauses and conditions remain unchanged, CORENERGY INFRASTRUCTURE TRUST UMR: B0831EN0043423 Author cf Pogo 30 Slip Leader: If plocod vif, PPl. lhi:-: lwx Wif/11ol he 8i!.}nm I 308 priceforbes CONTRACT ENDORSEMENT 831 Unique Market Reference: 80831EN0043323 818 Endorsement Reference: 005 Insured: CORENERGY INFRASTRUCTURE TRUST CONTRACT CHANGES This contract Is amended as follows: ENDORSEMENT EFFECTIVE DATE: I inception DETAILS·OF CHANGE: UndelWliters hereby note and agree to add the following to the CONDITIONS section: Additional Insured -Owners, Lessees or Contractors -Completed Operations, CG.20.37.07.04 as attached (1 page), Additional Insured -Owners, Lessees or Contractors -Scheduled Person or Organization, CG.20.10.04.13 as attached (1 page). All other terms, clauses and conditions remain unchanged. ADDITIONAL/ RETURN PREMIUM: I Not Applicable Nole: Where more than one Insurer participates In the contract, the contract terms may mean that It Is not always necessary to obtain a record of agreement to the Contract Endorsement from all of those Insurers. CONTRACT ADMINISTRATION AND ADVISORY SECTION This contract Is amended as follows: SETTLEMENT DUE Not Applicable DATE: In the absence of an Insurer specified Settlement Due Date, the Settlement Due Date wlll be calculated by applying the terms of trade for the original · premium to whichever Is the later of either: the latest effective date of the subject matter of the contract endorsement: or the date on which the final Insurer agreement Is obtained. ALLOCATION OF PREMIUM TO Not Applicable CODING: I~ //4 Page 1 of 1 ~ City of Huntingdon Beach GL Endt /16/05/2024 11:53 CY JW Isl Signatory 2nd Slgnolory 309 I(_ .JJo 11 1 c A._, ()Ct-'' I f~ L &:,>me: t., c.. b'J ;;; /jul\'1,Jtj/-J I/ (' 17tf1U Dept. ID ED 14-03 Page 1 of 2 Meeting Date: 1/21/2014 ..LlaJ:?ovGLJ ::; -CJ f:tj}z_ /;V~00t£Cl>t>~ ol-3 -dOI'/· Mo~ 'l -C) CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 1/21/2014 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Kenneth A. Domer, Assistant City Manager SUBJECT: Approve for introduction Ordinance No. 4008 and authorize execution of a Pipeline Franchise Agreement with Paramount Petroleum Corporation for the operation and maintenance of a pipeline system for the transportation of oil, gas, and other hydrocarbon substances in an existing pipeline system previously owned by Cenco Refining Statement of Issue: The City Council is asked to approve a Franchise Agreement between the City and Paramount Petroleum Corporation for the operation and maintenance of an existing pipeline system for the transportation of oil, gas, and other hydrocarbon substances. Financial Impact: The City will receive an initial Base Grant Fee ($11,470), Base Annual Fee ($117,024 prorated to 75% during inactive status), and a Reinstatement Fee ($639,753.92 paid over 120 months), to the General Fund (Account Number 10000100.41230). Annual revenue is estimated at $151,743 and the contract value is estimated at $1,528,903. Recommended Action: A) Approve for introduction Ordinance No. 4008, "An Ordinance of the City of Huntington Beach Amending Ordinance No. 2615 Which Granted An Oil Pipeline Franchise;" and, B) Approve and authorize the Mayor and City Clerk to execute the "Franchise Agreement Between the City of Huntington Beach and Paramount Petroleum Corporation." Alternative Action(s): Do not approve the Agreement and direct staff accordingly. Analysis: City Council is asked to approve a Franchise Agreement between the City and Paramount Petroleum Corporation (Paramount) for the operation and maintenance of an existing pipeline system used for the transportation of oil, gas, and other hydrocarbon substances. The pipeline system consists of approximately 86,400 linear feet of 6-inch, 10-inch and 12-inch diameter pipe. Cenco Refining, the former pipeline owner, held the last valid franchise agreement, which expired on December 31, 2005. In August 2006, Alon USA Energy, Inc., the parent company of Paramount, purchased the rights to the pipeline. The pipeline has been idle since its acquisition and is expected to remain idle for the next five to ten years. The proposed Franchise Agreement would allow Paramount to maintain the pipeline on standby and to preserve the pipeline for future use. Without Item 18. - I HB -546- 310 Dept. ID ED 14-03 Page 2 of 2 Meeting Date: 1/21/2014 the implementation of a Franchise Agreement, Paramount would be required to abandon the pipeline and lose its ability to reactive the pipeline in the future. The proposed Agreement incorporates the changes made to Chapter 3.44 -Pipeline Franchises of the Huntington Beach Municipal Code in 2010. Terms of the proposed Franchise Agreement include: • Term: 10 years • Base Grant Fee: $11,470 • Base Annual Fee: 2014 fee estimated at $117,024 (75% of Base Annual Fee will be collected during inactive status) • Maximum Inactive Status Period: 10 years • Reinstatement Fee: $639,753.92 (paid over 120 monthly payments of $5,331.28) • Corporate Surety Bond of $100,000 • Liability, Environmental and Workers Compensation Insurance Staff recommends approval of the Franchise Agreement. The agreement provides substantial general fund revenue, estimated at $151,743 annually for a ten year period, and ensures continued maintenance and responsibility for a vast pipeline network currently present within City right-of-way. Environmental Status: Exempt from CEQA pursuant to Section 15301. Strategic Plan Goal: Improve long-term financial sustainability Attachment(s): 1. Ordinance No. 4008, "An Ordinance of the City of Huntington Beach Amending Ordinance No. 2615 Which Granted An Oil Pipeline Franchise" 2. "Franchise Agreement Between the City of Huntington Beach and Paramount Petroleum Corporation" 3. Faithful Performance Bond 4. Insurance Certificate HB -547-Item 18. -2 311 ORDINANCE NO. 4008 ----- AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING ORDINANCE NO. 2615 WHICH GRANTED AN OIL PIPELINE FRANCHISE WHEREAS, in 1983 the City Council adopted Ordinance No. 2615 which granted a franchise for the construction, operation and maintenance of a pipeline for the transp01iation of oil; and Paramount Petroleum Corporation subsequently became successor m interest as the franchisee, NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. The terms and conditions of the franchise awarded by this ordinance are contained in the Franchise Agreement between the City of Huntington Beach and Paramount Petroleum Corporation, a copy of which is attached hereto as Exhibit "A" and incorporated by this reference as though set fo1ih herein. SECTION 2. The City Clerk shall cause this ordinance to be posted in three places designated by the City Council within the City and to be published by title with a brief summary at least once within fifteen days after its adoption in a daily, semi-weekly or weekly newspaper, published in the County of Orange or the City and circulated in the City, which is selected by the City Council for that purpose. SECTION 3. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 3rd day of February , 20J..L. t4.5ti Lr• r . Mayor 07-1267.007/84054.doc 312 0 PARAMOUNT I PETROLEUM Huntington Beach City Clerk 2000 Main Street Huntington Beach, CA 92648 Re: Pipeline Franchise Agreement Huntington Beach, California To Whom It May Concern, A ':.!!,JI-U S A February 14, 2014 12700 Park Central Dr. Suite 1600 Dallas, TX 75251 Pursuant to Section 21 of the Franchise Agreement between the City of Huntington Beach and Paramount Petroleum Corporation ("PPC"), PPC hereby accepts the franchise and will comply with the terms and conditions of the Franchise Agreement. ,_""'n;..,.ce-re~__,..------ J ames A. Ranspot Senior Vice President & General Counsel 313 FRANCHISE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND PARAMOUNT PETROLEUM CORPORATION THIS FRANCHISE AGREEMENT (this "Franchise") is made and entered into this day off@. Ii, 2014 by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California (hereinafter referred to as "City" or "Grantor"), and PARAMOUNT PETROLEUM CORPORATION, a Delaware corporation (hereinafter referred to as "PARAMOUNT PETROLEUM" or "Grantee"), pursuant to the City's "Pipeline Franchise Ordinance" as set forth in Chapter 3.44 of the Huntington Beach Municipal Code (Section 3.44.010, et seq.). RECITALS 1. By Ordinance No. 315, the Orange County Board of Supervisors granted a franchise for the construction, operation and maintenance of a pipeline system for the transportation of oil, gas and other hydrocarbon substances. 2. Subsequently, the City was vested with the rights and benefits of the County of Orange under said franchise. 3. Since then, there have been transfers and assignments, including litigation and settlements regarding rights and remedies of the subject pipeline system. 4. This Ordinance and Franchise Agreement in part will remedy unpaid fees and corrects the record as to the pipelines depicted in Exhibit A and clearly sets out future franchise fees and requirements as to the pipelines contained therein. 5. The City's consent to the assignment and amendment of any previous franchise agreement as to the pipelines depicted in Exhibit A is granted upon and subject 13-3702/103161 1 314 to the rules, regulations, restrictions, terms and conditions of the City's Pipeline Franchise Ordinance set forth in Chapter 3 .44 of the Huntington Beach Municipal Code (HBMC). NOW, THEREFORE, the City and PARAMOUNT PETROLEUM agree as follows: SECTION 1. DEFINITIONS. Whenever in this ordinance the words or phrases hereinafter in this section defmed are used, they shall have the respective meaning assigned to them in the following definitions (unless, in the given instance, the context wherein they are used shall clearly import a different meaning). (a) The word "grantee" shall mean PARAMOUNT PETROLEUM and its lawful successors or assigns; (b) The word "City" shall mean the City of Huntington Beach, a municipal corporation of the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form; (c) The word "streets" shall mean the public streets, ways, alleys and places as the same now or may hereafter exist within the City, including state highways, now or hereafter established within the City, and freeways hereafter established within the City; ( d) The word "franchise" shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, maintain and use pipes and appurtenances for the business of transmitting and distributing oil for all purposes under, along, across or upon the public streets, ways, alleys and places in the City, and shall include and be in lieu of any existing or future City requirement to obtain a license or permit for the privilege of transacting and carrying 13-3702/103161 2 315 on a business within the City; (e) The phrase "pipes and appurtenances" shall mean pipes, pipelines, mains, services, traps, vents, cables, conduits, vaults, manholes, meters, appliances, associated communications infrastructure, attachments, appurtenances, and any other property located or to be located in, upon, along, across, or under property of the City, and used or useful in the transmitting and/or distributing of oil; (f) The word "oil" shall mean natural or manufactured oil, or a mixture of natural and manufactured oil; (g) The phrase "construct, maintain, and use" shall mean to construct, erect, install, lay, operate, maintain, use, repair, or replace; and (h) The phrase "gross annual receipts" shall mean gross operating receipts received by Grantee from the sale of oil to Grantee's customers less uncollectible amounts and less any refunds or rebates made by Grantee to such customers pursuant to California Public Utilities Commission orders or decisions. SECTION 2. PURPOSE and GRANT That the right, privilege and franchise, subject to each and all of the terms and conditions contained in this Agreement, and pursuant to the provisions of 6231 of the Public Utilities Code of the State of California, and Huntington Beach Municipal Code 3.44.040 be and the same is hereby granted to Grantee to construct, maintain and use pipes and appurtenances for transmitting and distributing oil for any and all purposes, under, along, across or upon the streets of the City. The City hereby grants to Grantee the right, privilege and franchise to lay, construct, maintain, operate, renew, repair, change the size of, remove or abandon in place one or more existing pipes and pipelines for the collection, transportation or distribution of oil, water, gas, gasoline, petroleum, wet gas, 13-3702/103161 3 316 or other hydrocarbon substances, together with all manholes, valves, appurtenances and service connections necessary or convenient for the operation of said pipes or pipelines including conduits, cathodic protection devices, wires, cables and other appurtenances necessary or convenient for the exercise of Grantee's business, in, under and along certain streets, roads, highways, alleys, lanes and other public ways within City as herein designated or as may subsequently be authorized pursuant to Section 3.44.330 of the HBMC. SECTION 3. APPLICATION OF GRANT This Amendment and the Franchise Agreement shall apply to that portion of the pipeline system within the territorial limits of City in existence on the date this Agreement is approved by the City Council as follows: Six-inch oil pipeline as follows: 39,425 linear feet of six inch oil pipeline running from Golden West and Garfield to Huntington Beach Terminal as depicted on those certain alignment drawings titled Gold West Refining Company and comprised of drawing numbers 5522-2, sheet 1 of 3 and 5522-3, sheet 2 of 3 (Exhibit B). Running from Huntington Beach to Santa Fe Springs as depicted on those certain alignment drawings titled Gulf Oil Company-U.S. and comprised of drawing numbers 3347, sheet 7 of 9 and sheet 8 of9 (Exhibit B). Ten-inch oil pipeline as follows: 7,409 linear feet of ten inch oil pipeline running from Huntington Beach to Santa Fe Springs as depicted on those certain alignment drawings titled Gulf Oil Company-U.S. and comprised of drawings number 3347, sheet 9 of 9 (Exhibit B) and in the City of Huntington Beach, Gold West Refining Company comprised of drawing number 7133, sheet 1 of 2 (Exhibit B). 13-3702/103161 4 317 Twelve-inch oil pipeline as follows: 39,584 linear feet of twelve inch oil pipeline running from Huntington Beach to Santa Fe Springs as depicted on those certain alignment drawings titled Golden West Refining Company and comprised of drawing numbers 4978, sheets 2 of 19, 3 of 19, 4 of 19 and 5 of 19 (Exhibit B). SECTION 4. INCORPORATION OF OIL PIPELINE FRANCHISE ORDINANCE The City's grant of this Franchise Agreement is granted upon and subject to the rules, regulations, restrictions, terms and conditions of the City's "Pipeline Franchise Ordinance" as recently amended and set forth in Chapter 3.44 of the HBMC, a copy of which is attached hereto as Exhibit "C," and incorporated herein by this reference. All references in this Franchise Agreement to specific sections of the HBMC are references to those sections as they now exist and are reflected in said Exhibit "C." The words and phrases in this Franchise Agreement shall have the identical meaning as provided in Section 3.44.040 of the HBMC. If any terms referenced in the Franchise Agreement or the HBMC are in conflict with this Amendment the terms of this Amendment shall govern, followed by the HBMC, followed by the Franchise Agreement, except that any term more protective of the City's rights and remedies shall govern regardless of which agreement or code sections are thereby referenced. SECTION 5. TERM Said franchise shall be for a ten (10) year term from and after the effective date hereof; and shall endure in full force and effect thereto, or until the state or some municipal or public corporation thereunto duly authorized by law shall purchase by voluntary agreement or shall condemn and take under the power of eminent domain, all 13-3702/103161 5 318 property actually used and useful in the exercise of said franchise and situate in the territorial limits of the state, municipal, or public corporation purchasing or condemning such property, or until said franchise shall be forfeited for non-compliance with its terms by the Grantee. SECTION 6. COMPENSATION TO CITY Grantee shall pay the following fees to the City with respect to the rights and privileges granted to Grantee hereunder: 6.1 Base Granting Fee. Grantee shall pay the City the sum of Eleven Thousand Four Hundred Seventy Dollars ($11,470.00) as a one-time base granting fee within thirty (30) days following the execution of this Agreement. 6.2 Base Annual Fee and Adjustments and Reinstatement Fee. In addition to all fees provided herein, the Grantee shall pay $639,753.92 in a Reinstatement Fee that shall cover past due fees including penalties and interest until December 31, 2013. Reinstatement Monthly Payments may be paid in one month installment payments of $5,331.28 per month for a consecutive 120 month period. The amount shall be paid pursuant to the schedule set forth in Exhibit D attached hereto and incorporated herein. Beginning January 1, 2014, a base annual fee shall be paid within thirty (30) days after the end of each calendar year during the term of the Franchise Agreement, as amended herein, as follows: 13-3702/103161 6 319 Pi11eline Size Length (A) Fee (B) Fee Formula and TYJ!e (in feet) 11er linear foot 6" oil 39,425' $0.895 x CPI (A1) X CB1) adjustment 1 0" oil 7,409' $1.485 x CPI (A2) x (Bi) adjustment 12" oil 39,584' $1.787 x CPI (A3) X (B3) adjustment 86,418' See HBMC Section 3.44.290 when calculating annual adjustments to the Base Annual Fee using the Consumer Price Index-Los Angeles-Riverside-Orange County area (1982- 1984=100). The base annual fee shall be subject to proration pursuant to Section 3.44.300 of the HBMC (HBMC fee). The base annual fee shall be 75% of the total amount provided in the HBMC Section 3.44 for the full term of this Franchise Agreement beginning January 1, 2014 through December 31, 2023 because of the inactive status of the pipeline. In the event the Grantee activates the pipeline and begins to reuse said lines for oil or other product distribution, the grantee shall immediately notify the City and agrees to pay the full HBMC fee including annual adjustments set forth in the HBMC. If the Grantee activates the line and does not inform the City, Grantee shall pay a penalty each month the line(s) is active in the amount of 75% of the existing HBMC franchise fee in addition to the fee itself. 6.3. Base Construction Charges. Pursuant to HBMC Section 3.44.280, Grantee shall pay at the time of installation, relocation or replacement of any pipeline or other facility covered by the Franchise Agreement, a base construction charge established, and amended from time to time, by resolution of the City Council. 13-3702/103161 7 320 6.4 Payments to City. Payment is due thirty (30) days after the City's invoice date and a ten percent (10%) per month late penalty or fraction thereof beyond the payment date shall be charged, but in no event shall said penalty exceed fifty (50) percent. In addition an eighteen percent (18%) annual interest cost will be charged for any delinquent payment. The City will also withhold any permits and/or not renew licenses if any payment is delinquent. Payments should be mailed to the City Treasurer, City of Huntington Beach, P. 0. Box 711, Huntington Beach, CA 92648-0711. HBMC Section 3.44.290 shall govern when calculating annual adjustments to the Base Annual Fee using the Consumer Price Index-Los Angeles-Riverside-Orange County area (1982-1984=100). The base annual fee shall be subject to proration pursuant to Section 3.44.300 of theHBMC. SECTION 7. FAITHFUL PERFORMANCE BOND On or before the effective date of this Amendment, Grantee shall file and thereafter at all times during the term of the Franchise Agreement keep on file with the City Treasurer a corporate surety bond approved by the City Attorney running to the City in the penal sum of One Hundred Thousand Dollars ($100,000). In the event that said bond, after it has been so filed, shall at any time during the term of the Franchise Agreement become insufficient, in the sole opinion of the City Council, Grantee agrees to renew said bond within ten (10) days after written notice to do so from the City Treasurer. At such time, the bond shall be increased by a rate set forth by the City Council, with a surety to be approved by the City Attorney, conditioned that Grantee shall well and truly observe, fulfill and perform each condition of the Franchise 13-3702/103161 8 321 Agreement, as amended, and that in case of any breach of condition of the bond the whole amount of the penal sum shall be deemed to be liquidated damages and shall be recoverable from the principal and sureties of the bond. If said bond is not filed prior to the effective date of this Amendment, the approval of this Amendment may be denied and the ordinance granting the Franchise Agreement repealed at any time prior to the filing of said bond and any money paid. SECTION 8. OTHER FRANCHISES This grant is made in lieu of all other oil utility franchises or leased easement agreements owned by the Grantee, or by any successor of the Grantee to any rights under this franchise, for transmitting and distributing oil within the limits of the City, as said limits now or may hereafter exist, and the acceptance of the franchise hereby granted shall operate as an abandonment of all such oil utility franchises, leases or easements within the limits of this City, as such limits now or may hereafter exist, in lieu of which this franchise is granted. SECTION 9. OBLIGATIONS OF GRANTEE (a) All facilities or equipment of Grantee shall be constructed, installed and maintained in accordance with and in conformity with all of the ordinances, rules and regulations heretofore, or hereafter adopted by the legislative body of this City in the exercise of its police powers and not in conflict with the paramount authority of the State of California, and, as to state highways, subject to the provisions of the general laws relating to the location and maintenance of such facilities. (b) If any portion of any street shall be damaged by reason of defects in any of the pipes and appurtenances maintained or constructed under this grant, or by reason of 13-3702/103161 9 322 any other cause arising from the operation or existence of any pipes and appurtenances constructed or maintained under this grant, Grantee shall, at its own cost and expense, immediately repair any such damage and restore such portion of such damaged street to as good condition as existed before such defect or other cause of damage occurred. ( c) The Grantee shall pay to the City, on demand, the cost of all repairs to public property made necessary by any operations of the Grantee under this franchise. ( d) Grantee shall indemnify, save, and hold harmless, City and any officers and employees thereof against and from all damages, judgments, decrees, costs and expenditures which City, or such officer or employee, may suffer, or which may be recovered from, or obtainable against City, or such officer or employee, for, or by reason of, or growing out of or resulting from the exercising by Grantee of any or all of the rights or privileges granted hereby, or by reason of any act or acts of Grantee or its servants or agents in exercising the franchise granted hereby, and Grantee shall defend any suit that may be instituted against City, or any officer or employee thereof, by reason of or growing out of or resulting from the exercise by Grantee of any or all of the rights or privileges granted hereby, or by reason of any act or acts of Grantee, or its servants or agents, in exercising the franchise granted hereby. SECTION 10. REMOVE OR RELOCATE FACILITIES (a) City reserves the right for itself to lay, construct, erect, install, use, operate, repair, replace, remove, relocate or maintain below surface or above surface improvements of any type or description in, upon, along, across, under or over the streets of the City. City further reserves the right to lawfully change the grade, alignment or width of any street. If the necessary exercise of the aforementioned reserved rights 13-3702/103161 323 conflicts with any pipes and appurtenances of Grantee constructed, maintained, and used pursuant to the provisions of the franchise granted hereby, Grantee shall, without cost or expense to City within ninety (90) days after written notice from the City Manager, or his designated representative, and request so to do, begin the physical design and field construction of changing the location of all facilities or equipment so conflicting. Grantee shall proceed promptly to complete such required work. (b) Irrespective of any other provision of this ordinance, Grantee's right to construct, maintain, and use, or remove pipes and appurtenances thereto shall be subject at all times to the right of the City, in the exercise of its police power, to require the removal or relocation of said pipes and appurtenances thereto at the sole cost and expense of Grantee, except (1) as the law may otherwise provide or, (2) except where Grantee's right to possession is pursuant to instruments evidencing right-of-way, easements or other interest in real property, or (3) except where the removal or relocation is made at the request of the City on behalf of or for the benefit of any private developer, CalTrans, or other third party. (c) In the event that the City is made aware of a project developed by a governmental agency, water company, private party or the City that would be located within five hundred feet of a regulator station or other major oil facilities, City shall notify Grantee and initiate discussions among the implicated parties in order to assess potential economic and community impacts and facilitate coordinated and economically reasonable outcomes. 13-3702/103161 11 324 SECTION 11. TRANSFER OR SALE OF FRANCHISE This franchise may not be transferred (voluntarily, involuntarily, or by operation of law), leased or assigned by the Grantee except by written consent of the City Council, which may be withheld or conditioned at the City's sole discretion, and unless the transferee or assignees thereof shall agree to be bound by the terms and conditions of this Agreement. Grantee of the franchise granted hereby shall file with the City Manager and the legislative body of the City within thirty (30) days after any sale, transfer, assignment or lease of this franchise, or any part thereof, or of any of the rights or privileges granted thereby, written evidence of the same, certified thereto by the Grantee or its duly authorized officers. SECTION 12. FORFEITURE This franchise is granted upon each and every condition herein contained. Nothing shall pass by the franchise granted hereby to Grantee unless it be granted in plain and unambiguous terms. Each of said conditions is a material and essential condition to the granting of the franchise. If Grantee shall fail, neglect or refuse to comply with any of the conditions of the franchise granted hereby, and if such failure, neglect or refusal shall continue for more than thirty (30) days after written demand by the City Manager for compliance therewith, then City, by the City Council, in addition to all rights and remedies allowed by law, thereupon may terminate the rights, privilege, and franchise granted in and by this ordinance, and all the rights, privileges and the franchise of Grantee granted hereby shall thereupon be at an end. Thereupon and immediately, Grantee shall surrender all rights and privileges in and to the franchise granted hereby. No provision herein made for the purpose of securing the enforcement of the terms and conditions of the franchise granted hereby shall be deemed an exclusive remedy or to 13-3702/103161 12 325 afford the exclusive procedure for the enforcement of said terms and conditions, but the remedies and procedure outlined herein or provided, including forfeiture, shall be deemed to be cumulative. SECTION 13. LIABILITY INSURANCE The policy of liability insurance required by HBMC Chapter 3.44 shall be issued to Grantee and name the City and its officers, agents, and employees as additional insureds. It shall further indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted pursuant to the Franchise Agreement by providing coverage thereof, including but not limited to: (a) Negligent acts or omissions of Grantee and the agents, servants and employees thereof, committed in the conduct of operations under the Franchise Agreement. (b) Provide combined single limit liability insurance in the amount of five million dollars ($5,000,000). (c) Be noncancellable without thirty (30) days written notice thereof directed to the City. SECTION 14. ENVIRONMENTAL IMPAIRMENT LIABILITY INSURANCE The policy of environmental impairment liability insurance or other environmental insurance policy as approved at the sole discretion of the City as required by HBMC Chapter 3.44 shall insure liability for environmental impairment including cleanup cost endorsed for "Sudden and Accidental" contamination or pollution. Such coverage shall be in an amount and form to meet all applicable state and federal requirements but in no event less than five million dollars ($5,000,000) per occurrence. 13-3702/103161 13 326 (a) If written with an annual aggregate limit, the policy limit must be three (3) times the above-required occurrence limit. (b) If written on a claims made form, such insurance shall be endorsed to provide an extended reporting period of not less than two (2) years following termination or cancellation of the Franchise Agreement. SECTION 15. WORKERS' COMPENSATION INSURANCE The policy of workers' compensation insurance, shall: (a) Have been previously approved as to substance and form by the California Insurance Commissioner. (b) Cover all employees of Grantee who in the course and scope of their employment conduct or do work involving operations under the Franchise Agreement. ( c) Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the State of California upon an injured employee, including vocational rehabilitation and death benefits. (d) Be noncancellable without thirty (30) days written notice thereof directed to the City. SECTION 16. INSURANCE POLICY REQUIREMENT Grantee shall file with the City prior to commencement of any franchise operations either certified copies of said policies or a certificate of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information: (a) The policy number. (b) The date upon which the policy will become effective and the date upon which it will expire. 13-3702/103161 14 327 (c) (d) (e) (f) (g) The names of the insured and any additional insureds. Subject of the insurance. The type of coverage provided by the insurance. Amount of limit of coverage provided by the insurance. A description of all endorsements that form a part of the policy. (h) In addition to the insurance requirements in this section the insured shall also agree to defend, indemnify and hold harmless City against loss, damage or expense by reason of any suits, claims, demands, judgments caused by insured in the performance of the franchise as provided in HBMC Chapter 3.44. Any franchise operation shall not commence until Grantee has complied with the aforementioned provisions of this section, and any such operation shall be suspended during any period that Grantee fails to maintain said policies in full force and effect. SECTION 17. FORCE MAJEURE The obligations of any party hereunder, other than the obligation to pay money, shall be suspended for so long as such party is unable, in whole or in part, to carry out its obligations under this Amendment and the Franchise Agreement by reason of an act of God, strike, walkout or other industrial disturbance, act of the public enemy, war, blockade, public riot, lightning, fire, storm, flood, explosion governmental action, governmental delay, restraint or inaction, the unavailability of equipment or materials, or any other cause, whether similar or dissimilar to the types specifically enumerated above, which is beyond the reasonable control of the party claiming the right to suspend its obligations. Such affected party shall provide prompt written notice to the other of the details of the "force majeure," and shall use all reasonable diligence to remove, eliminate or otherwise minimize the force majeure situation as quickly as is practicable. Nothing herein contained shall require a party to settle a labor dispute contrary to the wishes of such party. 13-3702/103161 15 328 SECTION 18. ACQUISITION AND VALUATION The franchise granted hereunder shall not in any way or to any extent impair or affect the right of the City to acquire the property of the Grantee hereof either by purchase or through the exercise of the right of eminent domain, and nothing herein contained shall be construed to contract away or to modify or to abridge, either for a term or in perpetuity, the City's right of eminent domain in respect to the Grantee; nor shall this franchise ever be given any value before any court or other public authority in any proceeding of any character in excess of the cost to the Grantee of the necessary publication and any other sum paid by it to the City therefor at the time of the acquisition thereof. SECTION 19. PUBLICATION COSTS The Grantee of said franchise shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting thereof, such payment to be made within thirty (30) days after the City shall have furnished such Grantee with a written statement of such expenses. SECTION 20. EFFECTIVE DATE The franchise granted hereby shall not become effective until written acceptance thereof shall have been filed by the Grantee with the City Clerk. When so filed, such acceptance shall constitute a continuing agreement of the Grantee that if and when the City shall thereafter annex or consolidate with additional territory, any and all franchise rights and privileges owned by the Grantee therein shall likewise be d~emed to be abandoned within the limits of the additional territory. 13-3702/103161 16 329 SECTION 21. WRITTEN ACCEPTANCE After the publication of the ordinance related to this Franchise, the Grantee shall file with the City Clerk a written acceptance of the franchise hereby granted, and an agreement to comply with the terms and conditions hereof. SECTION 22. PUBLICATION The City Clerk shall certify to the adoption of this ordinance, and within fifteen (15) days after its adoption, shall cause the same (with a list of the councilmembers voting for and against) to be published in the Huntington Beach Independent, a newspaper of general circulation published and circulated in the City. SECTION 22. AUDIT OF RECORDS The City Treasurer, or any certified public accountant, or qualified person designated by the City, at any reasonable time during business hours, may make an examination at the Grantee's office of its books, accounts, and records, germane to and for the purpose of verifying the data set forth in the statement required by Section 4(b) and for any other purpose relating to the rendition of oil service by the Grantee within the City, or the charges to be made. IN WITNESS WHEREOF, the parties hereto have caused this Franchise Agreement to be executed by and through their authorized offices the day, month and year first above written. 13-3 702/103161 17 330 PARAMOUNT PETROLEUM CORPORATION By: l fVJhhf"ll:::} 0~/v- print name ITS: (circle one) Chairman/Preside@resideny AND By:_~~,--=----=...._.).__' ~Q~--:/e.'---"-.-t-L----- Sht..." fi v e-n print name ------. ~cle one) Secret~e~Financjg!) ~jtsst. Secretary -Treasurer REVIEWED AND APPROVED: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Mayor City Clerk INITIATED AND APPROVED: Assistant City Manager APPROVED AS TO FORM: City Manager GB CityAttomey UAJ l/~fq,_,J 3 ~.1~-(~ Exhibits: A. Depiction of Pipeline System B. Pipeline Network Alignment Drawings COUNTERPART C. HBMC Chapter 3.44 D. Reinstatement Monthly Payment Schedule 13-3 702/103161 18 331 PARAMOUNT PETROLEUM CORPORATION By: _____________ _ print name ITS: (circle one) Chairman/PresidenWice President AND print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary -Treasurer Exhibits: A. Depiction of Pipeline System B. Pipeline Network Alignment Drawings C. HBMC Chapter 3.44 CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ~ City Attorney ~-l°l-l3 COUNTERPART D. 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GENERAL PROVISIONS AND DEFINITIONS 3.44.010 Short Title 3.44.020 General Provisions 3.44.025 Franchise Required When 3.44.030 Pole Lines 3.44.040 Definitions 3.44.050 Term 3.44.060 Acceptance of Franchise Agreement 3.44.070 Nonexclusive Franchise 3.44.080 Maps 3.44.090 Repealed-Ordinance No. 3889-9/10 3.44.100 Liability Insurance 3 .44.105 Environmental Impairment Liability Insurance 3.44.110 Workers' Compensation Insurance 3.44.120 Insurance--Filing 3.44.130 Faithful Performance Bond 3.44.140 Repealed-Ordinance No. 3889-9/10 3.44.150 Repealed-Ordinance No. 3889-9/10 3.44.160 Forfeiture 3.44.170 Value of Franchise 3 .44.180 State Highways 3.44.190 Eminent Domain 3 .44.200 Publication Date 3.44.210 Assignment 3.44.220 Hold Harmless 3.44.230 Standards 3 .44.231 Conflicting Improvements 3.44.240 Defective Facilities 3.44.250 Hazardous Substances 3.44.251 Damage to Public Property Generally II. COMPENSATION 3 .44.252 Public Utility Not Transmitting Oil or Products Thereof 3.44.253 Length 3.44.255 Public Utility Transmitting Oil or Products Thereof 3.44.256 Non-Public Utility Franchises 3.44.260 Basic Granting Fee 3.44.270 Base Annual Fee 3.44.271 Payments to City 3.44.280 Base Construction Charges 3.44.290 Adjustments--Base Annual Fee 3.44.300 Proration of Payments 3 .44.310 Records III. CONSTRUCTION 3.44.320 Construction Requirements 3.44.330 New Installation or Replacement 3 .44.340 Permits City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 1 of 16 343 3.44.350 3.44.360 3.44.370 3.44.371 3.44.380 3.44.386 3.44.390 3.44.400 3.44.410 3.44.420 3.44.430 3.44.440 3.44.447 Work On and Restoration of Streets Failure to Comply Timely Completion Statement Responsibility Facilities Shoring Ordinary Repair Breaks or Leaks Emergency Equipment Removal or Abandonment of Facilities Failure to Comply Abandonment "In Place" Conditions Operation After Franchise Expiration -Revocable License IV. SPECIAL PROVISIONS FOR PETROLEUM PIPELINES 3 .44.450 Rights Granted 3.44.460 Materials Used 3.44.470 Approvals 3.44.480 Reports 3.44.490 Payments Due 3.44.500 Cost of Relocation I. GENERAL PROVISIONS AND DEFINITIONS 3.44.010 Short Title. This chapter shall be known and cited as "Pipeline Franchise Ordinance." (2319-10/78) 3.44.020 General Provisions. Every franchise hereafter granted by the City to lay, construct, maintain, operate, renew, repair, change the size of, remove or abandon in place pipes and pipelines for the collection, transportation or distribution of oil, gas, gasoline, petroleum, wet gas, hydrocarbon substances, or other substances, together with all manholes, valves, appurtenances and service connections necessary or convenient for the operation of said pipes or pipelines including conduits, cathodic protection devices, wires, cables and other appurtenances necessary or convenient for the exercise of the franchisee's business, in, under, along or across any and all streets within the City of Huntington Beach except as otherwise provided in the particular franchise agreement, shall be granted upon and be subject to the rules, regulations, restrictions and terms and conditions of this chapter, in addition to those rules, regulations, restrictions, terms and provisions set forth in the particular franchise agreement. (2319-10/78, 3889-9/10) 3.44.025 Franchise Required When. It is unlawful for any person, firm or corporation to exercise any privilege or franchise to lay or maintain any pipes or conduits in or under any public street, or alley in the City, for the transmission of gas, water, heat, steam, or other substance or to exercise any franchise or privilege for the erection or maintenance, in or upon any public street or alley in the City, of any telephone, telegraph, electric light or power poles, wires, or system, or for the erection of any pole or wire for the purpose of transmitting electrical energy or current, without first having procured a franchise to do so unless such person, firm or corporation is entitled to do so by direct and unlimited authority of the Constitution of the state or the Constitution of the laws of the United States. (3850-1/10) 3.44.030 Pole Lines. Nothing in this chapter or in any franchise agreement granting such a franchise shall be construed to permit the grantee to construct new poles or other facilities aboveground. (2319-10/78) City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 2 of 16 344 3.44.040 Definitions. For the purpose ofthis chapter, the following terms, phrases, words and their derivations shall have the meaning given herein: (a) "Council" shall mean City Council of the City of Huntington Beach. (3889-9/10) (b) 11 Code11 shall mean the Huntington Beach Municipal Code. (c) "Department" shall mean the Public Works Department of the City of Huntington Beach. (3889-9/10) (d) "Director" shall mean the Public Works Director of the City of Huntington Beach. (3889-9/10) (e) "Franchisee" or "grantee" shall mean the person to whom the franchise is granted, and any person to whom it is lawfully assigned. (f) "Facilities" or "appurtenances" shall mean all property owned or used by the franchisee, in connection with the franchise, including but not limited to, pipelines, pump stations, and service connection with the franchisee's facilities, whether installed by the franchisee as named or originally granted under this franchise or its predecessors or assignors, erected, constructed, laid, operated or maintained in, upon, over, under, along or across any street pursuant to any right or privilege granted by the franchise. (3889-9/10) (g) "Franchise payment period" shall mean the time period between the effective date of the franchise agreement granting the franchise and December 31 of the same calendar year, and each calendar year thereafter, during the life of the franchise. (3889-9/10) (h) "Franchise rep01t period" in all cases shall mean the time period between the effective date of the franchise agreement granting the franchise through and including December 31 of that calendar year, and each calendar year thereafter, during the life of the franchise. (3889-9/10) (i) "Highway" or "street" shall mean any public highway, freeway (except a state freeway), street, road, alley, lane or court or other public easement, and above and below the same, which now exists or which may hereafter exist in the City of Huntington Beach. (3889-9/1 0) (i) "Main" shall mean any pipeline or conduit laid in, along or approximately parallel with any street for the collection, transmission or distribution of any hydrocarbon substances. (k) "Major street" shall mean any street or portion thereof designated as a major secondary highway in the circulation element of the Huntington Beach General Plan. (1) "Minor street" shall mean all streets in the City other than those designated as "major" or "secondary highways" in the circulation element of the Huntington Beach General Plan. (3889-9/10) (m) "Person" shall mean any individual, person, firm, partnership or corporation. (n) "Section" shall mean a section of the Huntington Beach Municipal Code, unless some other code or statute is mentioned. ( o) "Service connection" shall mean the wire, pipes, or conduits connecting the building or place where the service or hydrocarbons supplied by the franchisee is used or delivered, or is made available for use or delivery, with the supply line or supply main in the highway or with such supply line or supply main on private property. (2319-10/78) (p) "Shall" is mandatory; "May'' is permissive. (3889-9/10) City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 3 of 16 345 3.44.050 Term. Unless the franchise agreement granting the franchise provides otherwise, the term of the franchise shall be fifteen (15) years. (2319-10/78, 3889-9/10) 3.44.060 Acceptance of Franchise Agreement. The franchisee shall enter into a written agreement with the City of Huntington Beach which grants the franchise and sets forth the terms and provisions therein. The franchisee shall, within thirty (30) days after the passage of the ordinance granting the franchise, file with the City Clerk of the City of Huntington Beach a written acceptance of the terms and conditions of said ordinance. The franchise shall be null and void if the written acceptance is not filed within the prescribed time. (2319-10/78, 3889-9/10) 3.44.070 Nonexclusive Franchise. The granting of the franchise shall not be construed to prevent the City from granting identical or similar franchise to any person other than the franchisee. Nothing herein contained shall ever be construed so as to exempt the franchisee from compliance with all ordinances, rules or regulations of the City now in effect or which may be hereafter adopted which are not inconsistent with the terms of the franchise. (2319-10/78, 3889-9/10) 3.44.080 Maps. Within ninety (90) days following the date on which any facilities or appurtenances have been laid, removed or abandoned under the franchise, the franchisee shall file a map or maps with the Department showing the accurate 11 as built" location, depth, and size of the facilities or appurtenances so laid, removed or abandoned. (2319-10/78, 3889-9/10) 3.44.100 Liability Insurance. The policy ofliability insurance required by this chapter shall be issued to franchisee and name the City and its officers, agents, and employees as additional insureds. It shall further indemnify for all liability for personal and bodily injury, death and damage to property arising from activities conducted pursuant to the franchise by providing coverage thereof, including but not limited to: (3889-9/10) (a) Negligent acts or omissions of franchisee and the agents, servants and employees thereof, committed in the conduct of franchise operations. (b) Provide a combined single limit liability insurance in the amount of five million dollars ($5,000,000). (3889-9/10) ( c) Be noncancellable without thirty (30) days written notice thereof directed to the City of Huntington Beach. (2319-10/78, 3889-9/10) 3.44.105 Environmental Impairment Liability Insurance. The policy of environmental impairment liability insurance or other environmental insurance policy as approved at the sole discretion of the City as required by this Chapter shall insure liability for environmental impairment including cleanup cost endorsed for "Sudden and Accidental" contamination or pollution. Such Coverage shall be in an amount and form to meet all applicable state and federal requirements but in no event less than five million dollars $5,000,000 per occurrence. (3889-9/10) (a) If written with an annual aggregate limit, the policy limit should be three (3) times the above- required occurrence limit. (3889-9/10) (b) If written on a claims made form, such insurance shall be endorsed to provide an extended reporting period of not less than two (2) years following termination or cancellation of this franchise. (3889-9/1 0) 3.44.110 Workers' Compensation Insurance. The policy of workers' compensation insurance, required by this chapter, shall: (a) Have been previously approved as to substance and form by the California Insurance Commissioner. City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 4 of 16 346 (b) Cover all employees of :franchisee who in the course and scope of their employment to conduct or do work pursuant to the franchise operations. (3889-9/10) ( c) Provide for every benefit and payment presently or hereinafter conferred by Division 4 of the Labor Code of the State of California upon an injured employee, including vocational rehabilitation and death benefits. (3889-9/10) (d) Be noncancellable without thirty (30) days written notice thereof directed to the City of Huntington Beach. (2319-10/78, 3889-9/10) 3.44.li0 Insurance--Filing. Franchisee shall file with the City Clerk prior to commencement of any franchise operations either ce1tified copies of said policies or a certificate of insurance for each of the required policies executed by the company issuing the policy, certifying that the policy is in force and providing the following information: (3889-9/10) (a) The policy number. (b) The date upon which the policy will become effective and the date upon which it will expire. ( c) The names of the insured and any additional insureds. (d) Subject of the insurance. ( e) The type of coverage provided by the insurance. (f) Amount of limit of coverage provided by the insurance. (g) A description of all endorsements that form a part of the policy. (h) In addition to the insurance requirements in this section the insured shall also agree to defend, indemnify and hold harmless the City of Huntington Beach against loss, damage or expense by reason of any suits, claims, demands, judgments caused by insured in the performance of the franchise as provided in Section 3.44.220. (3889-9/10) Any franchise operation shall not commence until franchisee has complied with the aforementioned provisions of this section, and any such operation shall be suspended during any period that franchisee fails to maintain said policies in full force and effect. (2319-10/78) 3.44.130 Faithful Performance Bond. On or before the effective date of the franchise agreement granting the franchise, franchisee shall file and thereafter at all times during the life of the franchise keep on file with the City Treasurer a corporate surety bond approved by the City Attorney running to the City in the penal sum of One Hundred Thousand Dollars ($100,000). In the event that said bond, after it has been so filed, shall at any time during the life of the franchise become insufficient, in the sole opinion of the City Clouncil, the franchisee agrees to renew said bond within ten ( 10) days after written notice to do so from the City Treasurer. At such time, the bond shall be increased by a rate set forth by City Council, with a surety to be approved by the City Attorney, conditioned that franchisee shall well and truly observe, fulfill and perform each condition of the franchise and that in case of any breach of condition of the bond the whole amount of the penal sum shall be deemed to be liquidated damages and shall be recoverable from the principal and sureties of the bond. If said bond is not filed prior to the effective date of the ordinance granting the franchise, the award of the franchise may be set aside and the ordinance granting the franchise repealed at any time prior to the filing of said bond and any money paid in consideration for said award of franchise shall be deemed forfeited. In the event that said bond, after it has been so filed, shall at any time during the life of the :franchise become insufficient, franchisee agrees to renew said bond, subject to the approval of the City Attorney, within ten (10) days after written notice to do so from the Director. (2319-10/78, 3889-9/10) City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 5 of 16 347 3.44.160 Forfeiture. The :franchise is granted and shall be held and enjoyed upon each and every condition contained in the :franchise agreement, including such conditions contained herein as are incorporated by reference in said :franchise agreement, and shall be strictly construed against the grantee. Any neglect, failure or refusal to comply with any of the terms and provisions of the :franchise agreement shall constitute grounds for the suspension or forfeiture of the :franchise, shall give to the grantee not less than thirty (30) days notice in writing of any default thereunder. If the grantee does not, within the noticed period, begin the work of compliance or after such beginning does not prosecute the work with due diligence to completion, the Council may hold a hearing, at which the grantee shall have the right to appear and be heard, and thereupon the Council may determine whether such conditions are material and essential to the :franchise and whether the grantee is in default with respect thereto and may declare the :franchise suspended or forfeited. Notice of said hearing shall be given to the grantee by certified mail not less than five (5) days before said hearing. (2319-10/78) 3.44.170 Value of Franchise. The grantee of any franchise awarded to a public utility, by accepting the terms and conditions thereof, stipulates and agrees that in any proceeding for the purpose of adjusting the rates of the grantee, no greater value shall be placed upon the franchise than the actual cash paid therefor by the grantee. (2319-10/78) 3.44.180 State Highways. If any street or portion thereof becomes a state highway, except for the right to continue to collect franchise payments in such other rights as by law remain with the City, the state shall succeed to all rights reserved to the City by the franchise. (2319-10/78, 3889-9/10) 3.44.190 Eminent Domain. No franchise granted by the City shall in any way impair or affect the right of the City or any successor in authority to acquire the property of the grantee by purchase or condemnation, and nothing contained in such a franchise shall be construed to contract away, modify or abridge either for a term or in perpetuity the City's right of eminent domain in respect to any public utility. (2319-10/78, 3889-9/10) 3.44.200 Publication Costs. The grantee shall pay to the City within thirty (30) days after receiving a statement therefore, all advertising and publishing costs, including the cost of publishing the granting of the franchise, if necessary. (2319-10/78, 3889-9/10) 3.44.210 Assignment. The grantee shall not directly or indirectly sell, transfer, assign or lease the franchise or any part thereof, or allow any other person or entity to operate any pipeline or related facility subject to the :franchise, except with the written approval of the Council which may be withheld at its sole and absolute discretion. Such sale, transfer, assignment, or lease shall be made only by filing with the Council a copy of the duly executed instrument of such sale, transfer, assignment or lease and a written request for the consent of the Council to such sale, transfer, assignment or lease. If such duly executed instrument and such written request is not filed with the Council before the expiration of thirty (30) days after the effective date of such sale, transfer, assignment or lease, then, upon the expiration of said thirty (30) days, the :franchise shall be subject to forfeiture and the Council may, without notice, revoke the franchise. As a condition to the granting of consent to such sale, transfer, assignment or lease, the Council may impose such additional terms and conditions upon the franchisee and upon the grantee or assignee, which the Council may deem to be in the public interest. Such additional terms and conditions shall be expressed by Council resolution. Nothing herein contained shall be construed to grant to the grantee the right to sell, transfer, assign or lease the franchise, or any part thereof, except in the manner aforesaid. This section applies to any assignment, whether by operation of law, by a voluntary act of the grantee or otherwise and includes a transfer of more than fifty percent (50%) of the voting stock of any corporate grantee or the change in identity of any general partner of a franchisee which is a partnership, whether to a third party or to any subsidiary, parent, or affiliated agency of :franchisee. (2319-10/78, 3889-9/10) 3.44.220 Hold Harmless. The grantee shall be responsible to the City and shall defend, indemnify and hold harmless the City and its officers and employees :from all damages or liability City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 6 of 16 348 arising from the use, operation or maintenance of the facilities erected, constructed, laid, operated or maintained thereunder. (2319-10/78, 3889-9/10) Franchisee hereby agrees to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all, claims, damages, losses, expenses, judgments, demands defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injmy to franchisee's employees and damage to franchisee's property, arising directly or indirectly out of the obligations or operations herein undertaken by franchisee, caused in whole or in pait by any negligent act or omission of the franchisee, any sub franchisees, anyone direcly or indirectly imployed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the City. Franchisee shall conduct all defense at its sole cost and expense and City shall approve selection of franchisee's counsel. City shall be reimbursed for all costs and attorney's fees incurred by City in enforcing this obligation. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitations upon the amount of indemnification to be provided by franchisee. (3889-9/10) 3.44.230 Standards. All facilities erected, constructed, laid, operated or maintained under the provisions of the franchise shall be erected, constructed, laid, operated or maintained in accordance with and conforming to all the ordinances, codes, rules and regulations now or hereafter adopted by or prescribed by the Council. (2319-10/78) 3.44.231 Conflicting Improvements. If the City or any other public entity constructs or maintains any storm drain, sewer structure, or other facility or improvement under or across any facility of the grantee maintained pursuant to the ordinance, the grantee shall provide at no expense to the City or other public entity such support as shall be reasonably required to suppo1t, maintain and protect grantee's facility. (3889-9/10) 3.44.240 Defective Facilities. If any pmtion of any street shall be damaged by reason of defective facilities laid or constructed under the franchise, the grantee shall, at its own expense, repair any such defect and put such street in as good condition as it was before such damage was incurred, to the satisfaction of the City. If the grantee, within ten (10) days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or, thereafter, shall fail diligently to prosecute such work to completion, then the City immediately may do whatever work is necessary to carry out said instructions at the cost and expense of the grantee, which cost and expense, by the acceptance of the franchise, the grantee agrees to pay upon demand. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City without notice may repair such damage and the grantee agrees to pay the reasonable cost thereof upon demand. (2319-10/78, 3889-9/10) 3.44.250 Hazardous Substances. Prior to the issuance of any excavation permit for the construction or installation of any pipeline for the transmission of flammable liquids or gases, written approval shall be obtained from the Director. Said approval may be withheld at the sole and absolute discretion of the Director. Said approval may be based on the determination that no undue fire hazard will be created to life or property in the areas through which the proposed pipeline will be located. To make such determination, consideration shall be given to: (3889-9/10) (a) Type of hydrocarbon to be transmitted. (b) Density of population or structural development in the area through which the pipeline will be located. ( c) Adequacy of water supplies for fire control purposes. City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 7 of 16 349 ( d) Extent of available public fire protection facilities. (e) Number and location of shutoff valves in line. (2319-10/78) 3.44.251 Damage to Public Property Generally. Any damage done directly or indirectly to any public property by grantee, in exercising directly or indirectly any right, power, or privilege under this franchise, or in performing any duty under or pursuant to the provisions of this section, shall be promptly repaired by grantee at its sole cost and expense to as good a condition as it was befor such damage was incurred, and to the satisfaction of the Director. If the franchisee, within ten (10) days after receipt of written notice from the City, instructing it to repair such damage, shall fail to commence to comply with such instructions, or thereafter, shall fail to diligently prosecute such work to completion, the City immediately may do work necessary to carry out said instructions and the cost and expense of the franchisee, which cost and expense, by the acceptance of the franchise, the franchisee agrees topay upon demand. If such damage constitutes an immediate danger to the public health or safety requiring the immediate repair thereof, the City without notice may repair such damage and the franchisee shall pay all costs incurred. (3889-9/10) II. COMPENSATION 3.44.252 Public Utility Not Transmitting Oil or Products Thereof. The franchisee of any franchise awarded to a public utility or non-public utility not transmitting oil or products thereof, as consideration for such franchise, shall annually pay to the City in lawful money of the United States, within thirty (30) days after the end of each calendar year and during the life of the franchise for each and every year, including the year of granting the franchise a franchise fee negotiated as part of the franchise agreement (unless preempted by State Law) arising from the use, operation or possession of the franchise. (3889-9/10) 3.44.253 Length. Whenever the length of any wire, pipe or conduit is a factor in calculating any payment due under any franchise granted by the, all service connections shall be excluded in detennining such lengths. (3889-9/10) 3.44.255 Public Utility Transmitting Oil or Products Thereof. The franchisee of any franchise awarded for a pipeline transmitting oil or products thereof which has been detennined by the Public Utilities Commission to be a public utility, as consideration for such franchise, shall, within thirty (30) days after the end of each calendar year and during the life of the franchise for each and every year, including the year of granting the franchise, annually pay to the City in lawful money of the United States, a fee in the following amounts as required by State law. In the event these referenced fees increase pursuant to State law, the fees referenced herein shall increase by the same: (3889-9/10) Pipelines with an Internal Diameter of: 0-4 inches 6 inches 8 inches 10 inches 12 inches 14 inches 16 inches 18 inches 20 inches 22 inches 24 inches 26 inches 28 inches 30 inches (3889-9/10) City of Huntington Beach Municipal Code 9/15/10 Base Rate Per Lineal Foot .088 .132 .176 .220 .264 .308 .352 .396 .440 .484 .528 .572 .616 .660 Chapter 3.44 Page 8 of 16 350 For pipelines with an internal diameter not listed above, the fees shall be in the same proportion to the fees of a twelve (12)-inch-diameter pipe as the diameter of the unlisted pipe is to twelve (12) inches. (3889-9/10) The amount of the fee or charge provided for in this paragraph shall be multiplied by the Consumer Price Index, all Urban Consumers (CPI-U) for the Los Angeles-Riverside-Orange County Area for the month of September immediately preceding the month in which payment is due and payable, and divided by the Consumer Price Index, All Urban Consumers (CPI-U for the Los Angeles-Riverside-Orange County Area for June 30, 1989, (1982-84= 100.0)). (3889-9/10) 3.44.256 Non-Public Utility Franchises. The franchisee of any franchises awarded to other than a public utility transmitting oil or oil products thereof, as further consideration for such franchise including the extension, renewal, or continuation of a previously granted franchise, shall pay to the City in lawful money of the United States the following fees: (3889-9/10) 3.44.260 Basic Granting Fee. In the event of an initial grant of franchise or franchises which extend, renew, or continue previously granted franchises, a base granting fee shall be required as established, and amended from time to time, by resolution of the City Council. (2319-10/78, 2676-2/84) 3.44.270 Base Annual Fee. A base annual fee shall be paid by franchisee within thirty (30) days after the end of each calendar year including the year of granting the franchises, according to the franchise payment period as defined in this chapter, in the following amounts: (2319-10/78, 2676-2/84, 3889-9/10) Pipelines with an Internal Diameter of: Amount Per Lineal Foot 0-4 inches .590 6 inches .895 8 inches 1.197 10 inches 1.485 12 inches 1.787 14 inches 2.092 16 inches 2.377 18 inches 2.682 20 inches 2.984 22 inches 3.272 24 inches 3.574 26 inches 3.879 28 inches 4.164 30 inches 4.469 The base annual rate applicable to pipelines with an internal diameter falling between incremental size categories shall pay a rate determined by adding the price corresponding to the lower size to a figure computed by multiplying the difference between the higher and lower price times the multiplier. The multiplier will be determined by dividing the difference between the size of the pipe and the lower size category by the difference between the two size categories. In determining the number of feet of pipeline upon which the annual fee will be computed, the greatest number of feet of pipeline covered by the franchise during the calendar year for which payment is due will be utilized. The base annual fee shall be paid no later than 30 days and a penalty at the rate often (10) percent per month or fraction thereof beyond the payment date shall be charged, but in no event shall said penalty exceed fifty (50) percent. ( 3889-9/1 0) The City reserves the right to adjust the base fees established hereunder at any time after the effective date of the ordinance. (3889-9/10) City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 9 of 16 351 3.44.271 Payments to City. Payment is due 30 days after the City's invoice date and a 10% per month late penalty and 18% annual interest cost will be charged for any delinquent payment. The City will also withhold any permits/not renew licenses if any payment is delinquent. Payments should be mailed to the City Treasurer, City of Huntington Beach, P.O. Box 711, Huntington Beach, CA 92648-0711. ( 3889-9/1 0) 3.44.280 Base Construction Charges. The holder of the franchise shall pay at the time of installation, relocation or replacement of any segment of pipe or pipeline, or any other facility covered by the franchise agreement, a base construction charge established, and amended from time to time, by resolution of the City Council. (2319-10/78, 2676-2/84) 3.44.290 Adiustments--Base Annual Fee. The amount of each base annual fee as specified in the above section shall be revised every year, in accordance with the following formula: (3889-9/10) (a) The Consumer Price Index, All Urban Consumers (CPI-U) for the Los Angeles-Riverside- Orange County area (1982-84= 100) as published by the United States Bureau of Labor Statistics ("Bureau"), shall be defined as the "index," and such index as it stands on August 1, 2010 shall be defined as the "base index" and the index for the month of September immediately preceding the fee payment date shall be defined as the "current index;" ( 3889-9/10) (b) If the current index differs from the base index, then the base annual fee shall increase or decrease by the percentage increase or decrease between the current index and the base index, provided that, if the current index drops below the base index, no adjustment shall be made. The base annual fee shall be multiplied by an adjustment factor dete1mined by dividing the current index by the base index. (3889-9/10) For example, if the base index is 185.0 and the current index is 190.5, the annual franchise fee shall be (i.e. 190.5/185.0 = 1.0297), times the base annual fee, provided however, under no circumstances shall the multiplying factor be less than one, nor shall the annual franchise fee calculated using said factor, be less than the base annual fee. If the Bureau shall revise the index, the parties hereto shall accept the method of revision for conversion recommended by the Bureau; and ( 3889-9/1 O) (c) If the Bureau discontinues the preparation or publication of the CPI-U, All Urban Consumers for the Los Angeles-Riverside-Orange County area (1982-84=100), and ifno transposition table prepared by the Bureau is available, then the amount of each annual franchise fee shall be computed by reference to such other price index as may be chosen by the City, and the City shall be the sole judge of comparability of successive indices and its determination on this point shall be final and conclusive. In no event shall the annual franchise fee adjustment by reference to such other price index be less than the base annual fee as set forth herein. ( 3889-9/10) ( d) Publication and Administrative Issuance Costs. The franchisee shall pay to the City within thirty (30) days after receiving a statement therefore, all administrative and other costs incurred by the City processing the application for a franchise, including but not limited to the preparation of any reports, statements or studies pursuant to the California Environmental Quality Act (Public resources Code Section 21000, et seq.) and any similar federal statute, or any successor statute, and for any and all advertising and publishing costs, including the cost of publishing the ordinance, if necessary, incurred in connection with the granting of the franchise. (3889-9/10) ( e) The base annual fee may also be amended from time to time by resolution of the City Council. ( 3889-9/1 o) City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 10 of 16 352 3.44.300 Proration of Payments. In the event of abandonment of facilities with the approval of the City as elsewhere in this chapter provided, or in the event of removal of such facilities by the franchisee, or in the event of the grant of a franchise with an initial franchise payment period of less than one year, the annual franchise fee required under the aforementioned sections shall be prorated for the calendar year in which such removal or abandonment or grant occurs as of the end of the calendar month in which removed, abandoned or granted. (2319-10/78, 3889-9/10) 3.44.310 Records. Franchisee shall keep and preserve for a peiiod of five ( 5) years subsequent to the date of the most recent franchise fee determination all the records necessary to determine the amount of such franchise fee. At all reasonable times, the franchisee shall permit the City or its duly authorized representative to examine all property of the franchisee erected, constructed, laid, operated or maintained pursuant to the franchise, together with any appurtenant property of the franchisee, and to examine and transcribe any and all books, accounts, papers, maps, and other records kept or maintained by the franchisee or under its control which concern the operations, affairs, transactions, property or financial condition of the franchisee with respect thereto. Said records shall be made available to the City at a location in the County of Orange. (2319-10/78, 3889-9/10) III. CONSTRUCTION 3.44.320 Construction Requirements. Pipelines and appmtenances shall be constructed and maintained in a good workmanlike manner in conformity with applicable law and the terms and conditions of any City ordinance, rule or regulation now, or as hereafter amended, adopted or presciibed by the City. All pipes pipelines and appurtenances will be installed in accordance with the latest revision of the "American Standard Code of Pressure Piping ASA B31.4." (2319-10/78, 3889-9/10) 3.44.330 New Installation or Replacement. New installations or replacements of pipelines and appurtenances and all other facilities necessary for the installation, operation, maintenance, and safety of pipelines and conduits shall be laid and maintained only pursuant to applicable law and permit issued by the Department. All such installations or replacements shall be reviewed by the Director as to the most desirable location in the streets of the City and his decision shall be final and binding on the franchisee. (2319-10/78, 3889-9/10) 3.44.340 Permits. Where the provisions of any City ordinance, resolution or regulation, which shall be in force at that time, require the issuance of an excavation, encroachment or other type of permit, the franchisee shall not commence any excavation or encroachment work under the franchise until it shall have obtained such permit from the Department except in cases of emergency affecting public health, safety or welfare or the preservation of life or property, in which case the franchisee shall apply for such permit not later than the next business day. (3889-9/10) The application of the franchisee for such permit shall show the following facts: the length and proposed location of the pipeline and/or appurtenance intended to be installed, and such other facts as the Department may require. The franchisee shall pay any and all permit inspection fees required by the Department. (2319-10/78, 3889-9/10) 3.44.350 Work On and Restoration of Streets. The work of constructing, laying, replacing, maintaining, repaiiing or removing all pipelines and appurtenances authorized under the provisions of this chapter in, over, under, along or across any street shall be conducted with the least possible hindrance to the use of the street for purposes of travel. As soon as such work is completed, all portions of the street which have been excavated or otherwise damaged thereby shall promptly and in a workmanlike manner be repaired, replaced or restored and placed in as good condition as before the commencement of such work and shall be done to the satisfaction of the Director at the expense of the franchisee, and in accordance with the terms and conditions of any City ordinance, resolution or regulation. For streets that have been rehabilitated within three City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 11 of 16 353 (3) years prior to the proposed work, the City shall require the resurfacing, or other treatment, of the entire lane widths of the street as directed by the Director. For those streets that have not been rehabilitated by the City within three (3) years prior to the proposed work, the restoration shall be in full compliance with City requirements. All restoration, repair or replacement work shall be done to the satisfaction of the Director at the expense of the franchisee in accordance with all applicable law. In the event that the franchisee shall fail or neglect to make such highway repair, replacement or restoration work, ten (10) days after notice therefore has been given franchisee by the Director, the City may repair, replace or restore said highway at the expense of franchisee. Franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable shall be the direct cost of such work plus the current rate of overhead being charged by the City for reimbursable work. (2319-10/78, 3889-9/10) 3.44.360 Failure to Comply Timely. In the event that the franchisee fails to complete the work within the time specified in the permit, the City may require the franchisee to pay to the City not more than five hundred dollars ($500) per day as liquidated damages for each day construction extends beyond the time specified in the permit. (3889-9/10) Whenever the franchisee fails to complete any work required by the terms and provisions of the franchise, and the permits issued thereunder, within the time limits required thereby, the City may complete or cause to be completed any and all such work at the expense of the franchisee. The franchisee agrees to pay to the City the cost of performing such work. The amount so chargeable to franchisee shall be the direct cost of such work plus the current rate of overhead being charged by the City for reimbursable work. (2319-10/78, 3889-9/10) 3.44.370 Completion Statement. Upon the completion of the construction of any pipelines or other facilities constructed pursuant to said franchise, the franchisee shall submit a statement to the Director, identifying the permit or permits issued by the Department, the total length of pipeline, pipeline material, diameter of pipeline, the construction of which was authorized under such permit or permits, and the total length of pipeline or facilities actually laid and as-built drawings. (2319-10/78, 3889-9/10) 3.44.371 Responsibility. In addition to any indemnification set forth herein, franchisee shall be specifically responsible to the City and shall save the City, its officers, agents, and employees, free and harmless from all damages or liability arising from any damage or injury suffered by any person by reason of any excavation or obstruction being improperly guarded during any work authorized pursuant to the franchise or the failure to neglect of the franchisee to properly perform, maintain, or protect any phase of such work. ( 3889-9/1 0) 3.44.380 Facilities. The franchisee shall have the right to construct, maintain and repair such traps, manholes, conduits, valves, appliances, attachments and other facilities as may be necessary or convenient for the proper maintenance and operation of the pipelines under said franchise, and said facilities shall be kept flush with the surface of the street and so located as to conform to applicable law including any ordinance, resolution or regulation of the City, or of any permit issued by the Department in regard thereto and shall not interfere with the use of the street for travel. The franchisee shall have the right subject to such ordinances, resolutions and regulations as are now or may hereafter be in force, to make all necessary excavations in said street for the construction, maintenance and repair of said facilities; provided, however, that the franchisee shall first obtain an excavation permit from the Department for doing any such work. (2319-10/78, 3889-9/10) 3.44.386 Shoring. The franchisee shall provide at its sole cost such shoring or other support as shall be reasonably required to support, maintain, and protect franchisee's facilities in connection with any storm drain or sewer construction by the City or in connection with any facility constructed by City, or by any successor agency. (3889-9/10) 3.44.390 Ordinary Repair. The franchisee shall be privileged to excavate in the road or street for line repair for the number of days agreed upon by the franchisee and the Department City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 12 of 16 354 provided, however, that the franchisee shall first obtain an excavation permit from the Department for the doing of any such work. (2319-10/78, 3889-9/10) 3.44.391 Relocation of Pipelines and Facilities. The City reserves the right to change the grade, to change the width or to alter or change the location of any street over which the franchise is granted. If any of the pipelines, facilities or appurtenances heretofore or hereafter constructed, installed or maintained by the franchisee pursuant to the franchise on, along, under, over, in, upon or across any street are located in a manner which conflict in any way with the change of grade, traffic needs, operation, maintenance, improvements, repair, construction, reconstruction, widening, alteration or relocation of the street, the franchisee shall relocate permanently or temporarily any such facility at no expense to the City upon receipt of a written request from the Director to do so, and shall commence such work on or before the day specified in such written request which date shall be not less than thirty (30) days from receipt of such written request. Franchisee shall thereafter diligently prosecute such work to completion. (3889-9/1 0) The City reserves the right for itself, and all other public entities which are now or may later be established, to lay, construct, repair, alter, relocated and maintain subsurface or other facilities or improvements of any type or description in a governmental but not proprietary capacity within the streets over which the franchise is granted. If the City or any other public entity finds that the location or relocation of such facilities or improvements conflicts with the facilities laid, constructed or maintained under the franchise, whether such facilities were laid before or after the facilities of the City or such other public entity were laid, the franchisee of such franchise shall at no expense to the City or public entity, on or before the date specified in a written request from the Director, which date shall be not less than thirty (30) days after the receipt of such notice and request to do so, commence work to change the location either permanently or temporarily of all facilities so conflicting with such improvements to a permanent or temporary location in said streets to be approved by the Director and thereafter diligently prosecute such work to completion. (3889-9/10) 3.44.400 Breaks or Leaks. If any portion of the street shall be damaged by reason of breaks or leaks in any pipe, conduit, or appurtenance constructed or maintained under the franchise, the franchisee thereof shall, at its own expense, immediately following written or oral notification thereof, promptly repair any such damage and put such street in as good condition as it was in before such damage or leak, all to the satisfaction of the Department. The franchisee shall obtain an excavation permit from the Department for the doing of any such work. (2319-10/78, 3889-9/10) 3.44.410 Emergency Equipment. At all times during the term of this franchise, the franchisee shall maintain or arrange for, on a twenty-four (24) hour a day basis adequate emergency equipment and a properly trained emergency crew within a radius of twenty-five (25) miles from any facilities installed or maintained pursuant hereto for the purpose of shutting off the pressure and the flow of contents of such facilities in the event of an emergency resulting from an earthquake, act of war, civil disturbance, fire, flood, or any other cause or nature whatsoever. (2319-10/78) 3.44.420 Removal or Abandonment of Facilities. (a) At the expiration, revocation or termination of this franchise or the permanent discontinuance of the use of all or a portion of its facilities, the franchisee shall, within thirty (30) days thereafter make written application to the Director for authority either: (1) to abandon all or a portion of such facilities in place; or (2) to remove all or a portion of such facilities. Such application shall describe the facilities desired to be abandoned or removed by reference to the map or maps required by Section 3.44.080 and shall also describe with reasonable accuracy the physical condition of such facilities. The Director shall determine whether any abandonment or removal which is thereby proposed may be effected without detriment to the public interest and under what conditions such proposed abandonment or removal may be safely effected and shall then notify the franchisee of his determination. The franchisee shall City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 13 of 16 355 pay to the City the cost of all tests required to determine the disposition of the application for abandonment removal. (3889-9/1 o) (b) Within thirty (30) days after receipt of such notice, the franchisee shall apply for a permit from the Department to abandon or remove the facility and shall pay all fees and costs related thereto. Such permit is to contain the conditions of abandonment or removal as may be presc1ibed by the Director. Any abandonment shall be conditioned, in part, upon the franchisee's compliance with the provisions set forth in this Chapter. (3889-9/10) The franchisee shall, within ninety (90) days after obtaining such pe1mit commence and diligently prosecute to completion, the work authorized by the permit. If the franchisee applies for authority to abandon all or a portion of its facilities in place, and the Director determines that abandonment in place of all or part of the facilities may be affected without detriment to the public interest, the franchisee shall pay to the City a fee which shall be computed as follows: Pipelines with an Internal Diameter of 0-12 inches 14-18-inches 20-30 inches (2319-10/78, 3889-9/10) 3.44.430 Failure to Comply. Amount per Lineal Foot $15.00 $22.00 $28.00 (a) If any facilities to be abandoned "in place" subject to prescribed conditions shall not be abandoned in accordance with all such conditions the Director may make additional appropriate orders, including an order that the franchisee shall remove any or all such facilities. The franchisee shall comply with such additional orders. (b) In the event that the franchisee shall fail to comply with the terms and conditions of abandonment or removal as may be required by this chapter and within such time as may be prescribed by the Director, the City may remove or cause to be removed such facilities at the franchisee's expense. The franchisee shall pay to the City the cost of such work plus the current rate of overhead being charged by the City for reimbursable work. (3889-9/10) ( c) If, at the expiration, revocation or termination of this franchise, or of the permanent discontinuance of the use of all or a portion of its facilities, the franchisee shall, within thirty (30) days thereafter, fail or refuse to make written application for the abovementioned authority, the Director shall make the determination as to whether the facilities shall be abandoned in place or removed. The Director shall then notify the franchisee of his determination. The franchisee shall thereafter comply with the provisions of subsection (b) of section 3.44.420. (2319-10/78) 3.44.440 Abandonment "In Place" Conditions. Facilities abandoned "in place" shall be subject to the condition that if, at any time after the effective date of the abandonment, the Director determines that the facility may interfere with any public project, franchisee or its successor in interest must remove the facility at its expense when requested to do so by the City or to pay City for the cost of such removal. (2319-10/78, 3889-9/10) 3.44.447 Operation After Franchise Expiration -Revocable License. If a franchise is to expire within sixty days according to the franchise terms, and a new franchise has been requested, but has not yet been granted, the franchisee may request the Mayor and City Council to issue the franchisee a written revocable license, for a renewable term not to exceed one hundred twenty (120) days from the expiration of the franchise, permitting the franchisee to continue to locate its existing facilities in or upon public property in the City during the term of the license. The Mayor and City Council may issue such a revocable license, subject to any restrictions, terms, and conditions (including compensation), without limitation, that they deem City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 14 of 16 356 to be in the best interests of the City. Nothing herein requires the Mayor and City Council to grant such a revocable license, nor does the issuance of such a revocable license require that the Mayor and City Council grant the franchisee a new franchise. Upon request of the franchisee, the City Clerk shall provide a revocable license application form. (3850-1/10) IV. SPECIAL PROVISIONS FOR PETROLEUM PIPELINES (3889-9/10) 3.44.450 Rights Granted. The franchisee granted a petroleum pipeline franchise shall have the right during the life thereof to transport oil, gas, gasoline, petroleum, wet gas and other hydrocarbon substances through the pipelines maintained under the franchise. If the franchisee or assignee later qualifies before the Public Utilities Commission of the State of California as a common carrier, the franchisee or assignee shall then have no right to continue to operate hereunder after the date of such qualification except with the consent of the Council, granted upon such additional terms and conditions as the Council may deem proper or as superseded by statute. Such additional te1ms and conditions shall be expressed by resolution. (2319-10/78, 3889-9/10) 3.44.460 Materials Used. All pipelines used or to be used for the transportation of oil, gas, gasoline, petroleum, wet gas and other hydrocarbon substances shall be first class and standard material as set forth by current American Petroleum Institute pipeline specifications. (2319-10/78) 3.44.470 Approvals. On all pipelines laid pursuant to the franchise, the Director shall approve where flush-valve connections shall be placed in the line. The availability of adequate water supplies, the hydrocarbons transmitted in the line, and the location of control valves shall be considered when making such determination. Such flush-valve connections shall be installed in the manner prescribed by the Director. (2319-10/78) 3.44.480 Reports. The franchisee during the life of the franchise, within sixty (60) days after the expiration of each franchise payment period, shall: (a) File with the Director two copies of a verified report of the franchisee showing for the immediately preceding franchise period, the length of lines in streets, the internal diameter of such lines, the rate per foot per year and the total amount due the City. (3889-9/1 0) (b) File with the Director a report in triplicate, showing the permit number of each permit obtained for the installation of new mains during the immediately preceding franchise payment period, together with the length and size of said mains. On this report the franchisee shall show any change in franchise footage since the last franchise payment period segregating such footage as to new mains laid, old mains removed, old mains abandoned in place, and the footage of mains in territory annexed or incorporated since the last franchise payment period. (2319-10/78) (c) All payments should be mailed to the City Treasurer, City of Huntington Beach, P.O. Box 711, Huntington Beach, CA 92648-0711. (3889-9/10) 3.44.490 Payments Due. Except for pipelines lawfully maintained other than by the authority granted by the franchise, the semi-annual payments shall accrue from the respective dates of installation, whether before or after the effective date of the franchise agreement, and such payments, together with the initial construction charges, if any, shall be due and payable semi- annually. (2319-10/78, 3889-9/10) 3.44.500 Cost of relocation. Franchisee shall bear the costs of removing and relocating its facilities used and maintained under this franchise if made necessary by any lawful change of grade, alignment or width of any public street, way, alley or place, or for any public project, even if franchisee's facilities are located on a private easement. If the grantee after reasonable notice, fails or refuses to relocate permanently or temporarily its facilities located in, on, upon, along, under, over, across or above any highway or to pave, surface, grade, repave, resurface or regrade City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 15 of 16 357 as required, pursuant to any provision of the franchise, the City or other public entity may cause the work to be done and shall keep an itemized account of the entire cost thereof, and the grant shall hold harmless the City, its officers and employees from any liability which may arise or be claimed to arise from the moving, cutting, or alteration of any of the grantee's facilities, or the turning on or off of water, oil, or other liquid, gas, or electricity. (2319-10/78, 3889-9/10) City of Huntington Beach Municipal Code 9/15/10 Chapter 3.44 Page 16 of 16 358 EXHIBIT D REINSTATEMENT FEE PAYMENT SCHEDULE INITIAL BALANCE: $639,753.92 MONTHLY PAYMENT: $5,331.28 Month Payment Balance Month Payment Balance Month Payment Balance 1 $5,331.28 $634,422.64 42 $5,331.28 $415,840.16 83 $5,331.28 $197,257.68 2 $5,331.28 $629,091.36 43 $5,331.28 $410,508.88 84 $5,331.28 $191,926.40 3 $5,331.28 $623,760.08 44 $5,331.28 $405,177.60 85 $5,331.28 $186,595.12 4 $5,331.28 $618,428.80 45 $5,331.28 $399,846.32 86 $5,331.28 $181,263.84 5 $5,331.28 $613,097.52 46 $5,331.28 $394,515.04 87 $5,331.28 $175,932.56 6 $5,331.28 $607,766.24 47 $5,331.28 $389,183.76 88 $5,331.28 $170,601.28 7 $5,331.28 $602,434.96 48 $5,331.28 $383,852.48 89 $5,331.28 $165,270.00 8 $5,331.28 $597,103.68 49 $5,331.28 $378,521.20 90 $5,331.28 $159,938.72 9 $5,331.28 $591,772.40 so $5,331.28 $373,189.92 91 $5,331.28 $154,607.44 10 $5,331.28 $586,441.12 51 $5,331.28 $367,858.64 92 $5,331.28 $149,276.16 11 $5,331.28 $581,109.84 52 $5,331.28 $362,527.36 93 $5,331.28 $143,944.88 12 $5,331.28 $575,778.56 53 $5,331.28 $357,196.08 94 $5,331.28 $138,613.60 13 $5,331.28 $570,447.28 54 $5,331.28 $351,864.80 95 $5,331.28 $133,282.32 14 $5,331.28 $565,116.00 55 $5,331.28 $346,533.52 96 $5,331.28 $127,951.04 15 $5,331.28 $559,784.72 56 $5,331.28 $341,202.24 97 $5,331.28 $122,619.76 16 $5,331.28 $554,453.44 57 $5,331.28 $335,870.96 98 $5,331.28 $117,288.48 17 $5,331.28 $549,122.16 58 $5,331.28 $330,539.68 99 $5,331.28 $111,957.20 18 $5,331.28 $543,790.88 59 $5,331.28 $325,208.40 100 $5,331.28 $106,625.92 19 $5,331.28 $538,459.60 60 $5,331.28 $319,877.12 101 $5,331.28 $101,294.64 20 $5,331.28 $533,128.32 61 $5,331.28 $314,545.84 102 $5,331.28 $95,963.36 21 $5,331.28 $527,797.04 62 $5,331.28 $309,214.56 103 $5,331.28 $90,632.08 22 $5,331.28 $522,465.76 63 $5,331.28 $303,883.28 104 $5,331.28 $85,300.80 23 $5,331.28 $517,134.48 64 $5,331.28 $298,552.00 105 $5,331.28 $79,969.52 24 $5,331.28 $511,803.20 65 $5,331.28 $293,220.72 106 $5,331.28 $74,638.24 25 $5,331.28 $506,471.92 66 $5,331.28 $287,889.44 107 $5,331.28 $69,306.96 26 $5,331.28 $501,140.64 67 $5,331.28 $282,558.16 108 $5,331.28 $63,975.68 27 $5,331.28 $495,809.36 68 $5,331.28 $277,226.88 109 $5,331.28 $58,644.40 28 $5,331.28 $490,478.08 69 $5,331.28 $271,895.60 110 $5,331.28 $53,313.12 29 $5,331.28 $485,146.80 70 $5,331.28 $266,564.32 111 $5,331.28 $47,981.84 30 $5,331.28 $479,815.52 71 $5,331.28 $261,233.04 112 $5,331.28 $42,650.56 31 $5,331.28 $474,484.24 72 $5,331.28 $255,901.76 113 $5,331.28 $37,319.28 32 $5,331.28 $469,152.96 73 $5,331.28 $250,570.48 114 $5,331.28 $31,988.00 33 $5,331.28 $463,821.68 74 $5,331.28 $245,239.20 115 $5,331.28 $26,656.72 34 $5,331.28 $458,490.40 75 $5,331.28 $239,907.92 116 $5,331.28 $21,325.44 35 $5,331.28 $453,159.12 76 $5,331.28 $234,576.64 117 $5,331.28 $15,994.16 36 $5,331.28 $447,827.84 77 $5,331.28 $229,245.36 118 $5,331.28 $10,662.88 37 $5,331.28 $442,496.56 78 $5,331.28 $223,914.08 119 $5,332.28 $5,330.60 38 $5,331.28 $437,165.28 79 $5,331.28 $218,582.80 120 $5,330.60 $0.00 39 $5,331.28 $431,834.00 80 $5,331.28 $213,251.52 40 $5,331.28 $426,502.72 81 $5,331.28 $207,920.24 41 $5,331.28 $421,171.44 82 $5,331.28 $202,588.96 Franchise Agreement Between the City of Huntington Beach and Paramount Petroleum Corporation 359 Ord. No. 4008 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on January 21, 2014, and was again read to said City Council at a Regular meeting thereof held on February 3, 2014, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Sullivan, Hardy, Harper, Boardman, Carchio, Shaw, Katapodis NOES: None ABSENT: None ABSTAIN: None I, Joan L. Flynn, CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council, do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on February 13, 2014. In accordance with the City Charter of said City Joan L. Flynn, City Clerk Senior Deputy City Clerk Ci of the City Council of the City of Huntington Beach, California Amendment to Pipeline Franchise Agreement Cardinal Pipeline L.P. June 18, 2024 360 Statement of Issue • The Mayor and City Council are being asked to approve for introduction Ordinance No. 4230 and authorize execution of an Amendment to the Pipeline Franchise Agreement with Cardinal Pipeline L.P. 361 Financial Impact • The City will continue to receive a Base Annual Fee which will be deposited to the General Fund (Account Number 10000100.41230). Each annual period, this fee is adjusted by a rate of change as determined by HBMC 3.44.290. • For the most recent billing period, the Base Annual Fee was $126,001.25. 362 Recommended Action • Approve for introduction Ordinance 4230 “An Ordinance of the City of Huntington Beach Amending Ordinance No. 4008 which Granted an Oil Pipeline Franchise” • Approve and authorize the Mayor and City Clerk to execute the “Amendment to Franchise Agreement between the City of Huntington Beach and Cardinal Pipeline L.P.” 363 Alternative Action • Do not approve the Agreement and direct staff to draft correspondence informing Franchisee that existing pipeline must be abandoned pursuant to HBMC and State code. • This action would result in revenue loss for the City. 364 Terms of Amendment • 10-year extension. New expiration would be 2/13/2034. • Base Annual Fee: $87,768.26 + Annual CPI adjustment. • Corporate Surety Bond of $100,000 • Liability, Environmental and Workers Compensation Insurance 365 Questions? 366