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HomeMy WebLinkAbout25Q - AGMT DT OPREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: 18 , 2018 TITLE: APPROVE FIRST AMENDMENTS TO THE DOWNTOWN MERCHANTS FUND OPERATING AGREEMENTS WITH DOWNTOWN INC. AND SANTA ANA BUSINESS COUNCIL {STRATEGIC PLAN NO. 3,4F) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1sT Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute First Amendments to the Downtown Merchants Fund Operating Agreements with Downtown Inc. and Santa Ana Business Council in the amount of $200,000 ($100,000 per organization), for the period of January 1, 2019 through December 31, 2019, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On August 4, 2015, the City Council adopted the Downtown Enhancements and Parking Modernization Plan to address the need to modernize parking structures, enhance public amenities, and address deferred maintenance in the downtown. As part of the Plan, downtown business associations and stakeholders agreed to an increase in parking rates and the implementation of new smart meters in the downtown area with the understanding that increased revenue from these new rates and smart meters would be reinvested back into the downtown. As part of the Plan, it was proposed that a Downtown MerchantsNalidation Fund be created to fund a validation program for participating business and merchants to reward their customers for using the parking structures. Before implementation, both merchant groups and the City staff determined that a validation program was not feasible due to the administrative burden of such a program. It was recommended that the funds be used by Downtown Inc. and Santa Ana Business Council for continued promotion and marketing of the downtown to complement the annual Business Improvement District funds. On December 5, 2017, the City Council approved agreements with Downtown Inc. and Santa Ana Business Council in the amount of $200,000 ($100,000 per organization) for the 2018 Downtown Merchants Fund (DMF) in lieu of the validation program. The intent of this agreement is for both organizations to receive $100,000 from the DMF each calendar year that such funding is approved by City Council. 25Q-1 First Amendment to the Downtown Merchants Fund Operating Agreement December 18, 2018 Page 2 The proposed 2019 Merchants Fund budgets of in the amount of $200,000 ($100,000 per organization) have been submitted for City Council consideration (Exhibit 1). With approval, this funding will continue to support marketing efforts and will allow for successful year-round administration of events for the Downtown. This additional $100,000 per organization will complement the existing funds each association receives from the City's Business Improvement District (BID). In FY 2017-18, the Merchants Fund enhanced the Business Improvement District funding and brought successful events and promotions that drew thousands of visitors to Downtown Santa Ana. These events and promotions included: First Saturday Artwalk, Savor Santa Ana, Boca De Oro Literary Festival, Santa Ana Media Summit, Outdoor Cinema Series, Santa Ana Sidewalk Sales (monthly), and the Downtown Santa Ana newsletter. Additionally, the Downtown Bridal Association, Restaurant Association, Arts Association, and other downtown stakeholder meetings also receive support. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 (Economic Development), Objective 4 (Continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Strategy F (Partner with downtown business and merchant associations to program events that showcase restaurants, shopping and entertainment venues). FISCAL IMPACT Funds in the amount of $100,000 are available in the Downtown Enhancements and Parking Modernization Plan account (no. 02710133-62300) for expenditure in FY 18-19. Funds in the amount of $100,000 for the second half of the agreement term will be included and budgeted in the FY 19-20 budget. Steven . Mendoza Executive Director Community Development Agency APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency Exhibits: 1. Proposed 2019 Merchants Fund Budget / 2. Downtown Inc. - First Amendment to the Downtown Merchants Fund Operating Agreement 3. Downtown Inc. - Downtown Merchants Fund Operating Agreement 4. Santa Ana Business Council - First Amendment to the Downtown Merchants Fund Operating Agreement 5. Santa Ana Business Council — Downtown Merchants Fund Operating Agreement 25Q-2 EXHIBIT 1 Proposed 2019 Merchants Fund (Parking Revenue) Budget Downtown Inc. Budget Personnel Costs $42,500 Contractors/Professional Services $15,000 -- Event Producers, Program Coordinators, Production Staff Meetings/Stakeholder Groups/Training $12,500 -- Restaurant Assoc., Arts Meetings, Staff & Stakeholder Development Marketing/Promotions/Events $12,500 -- Maps, Guides, Savor Santa Ana, Artwalk Communication $10,000 -- Newsletter, Social Media, Translation, Design, Videos, Photos Office/Operations/Technology $7,500 --- Office Supplies, Web hosting, Subscription Technology/Software Downtown Inc. TOTAL: $100,000 Santa Ana Business Council Budget Administrative/Personnel Costs $18,000 -- Consulting Services Contractors/Professional Services $23,300 -- Grant Writer, Specialized Nonprofit Accountant Meetings/Stakeholder Groups/Training $20,000 -- Entrepreneurship and Small Business Education Development Marketing/Promotions $9,700 -- Building Downtown Business &Community Engagement Team, Internship Program Events/Entertainment/Sponsorships $14,000 -- Downtown Activation, Circulation, Flows, Urban Tacticalism, Pilot Projects Communication $15,000 -- News, Print Media, Photography, Videography, Social Media Support Services Santa Ana Business Council TOTAL: $100,000 Proposed 2019 Merchants Fund Budget TOTAL: $200,000 EXHIBIT 1 25Q-3 25Q-4 EXHIBIT 2 THE DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT THIS FIRST AMENDMENT TO THE DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT is entered into this 18th day of December, 2018, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and Downtown Incorporated, Inc., a California non-profit corporation ("DTI"). RECITALS A. On January 10, 2018, the City entered into the Downtown Merchants Fund Operating Agreement #A-2017-326 with DTI to create the Downtown Merchants Fund ("DMF") from a portion of downtown parking revenues for continued promotion of the downtown ("said Agreemenn. The intent of said Agreement is for DTI to receive $100,000 from the DMF each calendar year that such funding is approved by City Council. B. The City hereby approves an additional $100,000 in DMF funds for use by DTI in 2019 pursuant to the terns and conditions of said Agreement. Additionally, the City hereby approves DTI's 2019 DMF Annual Budget. C. In accordance with the terms and conditions of said Agreement, the parties desire to amend said Agreement to extend the term of said Agreement, add an additional $100,000 in DMF funding for the extended term of said Agreement, and incorporate DTI's 2019 DMF Annual Budget into said Agreement. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terns and conditions of said Agreement, except as herein modified, the parties agree as follows: Pursuant to the terms of said Agreement, the City Council approved an additional $100,000 in DMF funding for the 2019 calendar year to be utilized by DTI pursuant to DTI's 2019 DMF Annual Budget and the terms of said Agreement. 2. Section 1.02, Term, shall be amended to read as follows: "This Agreement shall commence on the date first written above and terminate on December -31-,-2019, unless terminated earlier in accordance with sections 4.02 or 4.05 below." 3. Section 2.01, Annual Budget and Program Report, subsection (a), shall be amended to reflect the City's approval of DTI's 2019 DMF Annual Budget, a true and correct copy of which is attached hereto as Exhibit A and incorporated herein by reference. 25Q-5 4. Section 2.02, Bi -Annual Financial Statement and Audit, shall be amended to read as follows: "Annual Financial Statement and Audit No later than November 1 of each year, DTI shall submit to the City Manager a complete statement of DTI's revenues and expenditures and a financial audit for the preceding year prepared by an independent certified public accountant." 5. Except as hereinabove modified, the terms and conditions of said Agreement remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Approval and Amendment to said Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA RAUL GODINEZ II City Manager DOWNTOWN INCORPORATED, INC.: Ryan Chase President Tax ID# 264051161 25Q-6 2 EXH[BTT A DOWNTOWN MERCHANTS FUND ANNUAL BUDGET Proposed 2019 Merchants Fund (Parking Revenue) Budget Downtown Inc. Budget Personnel Costs $42,500 Contractors/Professional Services $15,000 -- Event Producers, Program Coordinators, Production Staff Meetings/Stakeholder Groups/Training $12,500 -- Restaurant Assoc., Arts Meetings, Staff & Stakeholder Development Marketing/Promotions/Events $12,500 -- Maps, Guides, Savor Santa Ana, Artwalk Communication $10,000 -- Newsletter, Social Media, Translation, Design, Videos, Photos Office/Operations/Technology $7,500 --- Office Supplies, Web hosting, Subscription Technology/Software Downtown Inc. TOTAL: $100,000 25Q-7 25Q-8 INSURANCE ON FILE WORK MAY PROCEED LIMINSURANCE EXPIRESiv / A/ij CLEUN L DATE: JAN 19 2018 0'. CPA (p) EXHIBIT 3 DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT A-2017-326 C This OPERATING AGREEMENT made and entered into this 10 day of, N . 2018, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and Downtown Incorporated, Inc., a California non-profit corporation ("DTr') RECITALS A. On August 4, 2015, the City Council adopted the Downtown Enhancements and Parking Modernization Plan to address the need to modernize parking structures, enhance public amenities, and address deferred maintenance in the downtown (Santa Ana Ordinance No. NS -2880). B. Downtown business associations and stakeholders agreed to an increase in parking rates and the implementation of new smart meters in the downtown area with the understanding that increased revenue from these new rates and smart meters would be reinvested back into the downtown C. As part of the Plan, it was proposed that a Downtown Merchants Fund ("DMF") be created for continued promotion of the downtown. This funding will continue to support strong marketing efforts and will allow for successful year-round administration of events for the downtown. D. Both DTI and the Santa Ana Business Council have provided budgets for the administration of the DMF. This additional $100,000 per organization will complement the existing funds each association receives from the City's Business Improvement District ("BID"). E. The City and DTI under this Operating Agreement propose to: (1) confirm that DTI will receive $100,000 from the DMF each calendar year that such funding is approved by City Council; (2) to provide that DTI's use of said DMF funds will be consistent with its approved DMF Annual Budget; and, (3) to provide for auditing of DTPs DMF funds. WHEREFORE, and in consideration of the mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Operating Agreement, the parties hereto do hereby agree as follows: ARTICLE I PRELIMINARY MATTERS § 1.01 Definitions As used in this Operating Agreement, the following terms shall have the following 25Q-9 meanings: (a) "City" means the City of Santa Ana, California. (b) "City Council" means the City Council of the City. (c) "City Manager" means the City Manager of the City or his/her designated representative(s). (d) "DMF" means Downtown Merchants Fund, a fund created from downtown parking revenues to support marketing of the downtown. (e) "DTr' means Downtown Incorporated, Inc., a California nonprofit corporation. (1) "Board" means the Board of DTI. § I.02 Lem This Agreement shall commence on the date first written above and terminate on 20_, unless terminated earlier in accordance with sections 4.02 or 4.05, below. The Term of this Agreement shall be automatically renewed in one (1) year Renewal Terms, unless terminated earlier in accordance with sections 4.02 or 4.05, below. § 1.03 Status of DTI (a) By its execution of this Agreement, DTI wan -ants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of Incorporation and Bylaws and a true and correct listing of DTI's officers and their terms of office, certified as such by DTI's Secretary, have been filed with the Clerk of the Council. (b) By its execution of this Agreement, City accepts and agrees to the organization of DTI as set forth in the above said Articles of Incorporation and Bylaws. § 1.04 Compensation of DTI Board Members and Meetings (a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of the DTI Board. When conducting meetings related to the DMF, members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for DTI when authorized by the DTI Board. § 1.05 Changes in Officers Articles and Bylaws DTI shall notify the Clerk of the Council of any change in the membership of the Board and any change in the officers of DTI. Any amendment of DTI's Articles or Bylaws shall be filed with the Clerk of the Council. 2 25Q-10 §1.06 City Representation at Meetines of DTI The City Manager shall be entitled to attend all meetings of DTI related to the DMF and to participate in the discussions of the Board to the same extent as the members of the Board, and DTI shall assure that the City Manager is provided with reasonable advance notice of all meetings of DTI. Nothing herein shall be construed to provide the City Manager with any authority to make, second, or vote on motions, or to cause him/her to be counted for purposes of determining whether a quorum exists at meetings of DTT. §1.07 City Residents, Downtown Property Owners and Business Operator-so{t the Board A majority of the Board shall be City residents, downtown property owners, or business operators. If the number of members who are City residents, downtown property owners, or business operators becomes less than a majority due to the death, resignation, or change of residence or business location, DTI shall not be in defimlt under this section, provided, however, the the next member appointed to the Board shall be a City resident, downtown property owner, or business operator. ARTICLE 2 REPORTS AND RECORDS AND DMF FUND TRANSFERS § 2.01 Annual Budget and Program Report (a) No later than November 1 of each year, DTl shall provide the City Manager with a copy of a detailed calendar year operating budget showing expected sources of revenue and the nature of all expected or proposed expenditures for the forthcoming calendar year and a report on the proposed programs to be undertaken by DTI in said calendar year. A true and correct copy of DTI's 2016 DMF Annual Budget is attached hereto as Exhibit A and incorporated herein by reference. (b) If the proposed budget is accepted by the City Manager, it shall be submitted to the City Council for approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City Manager and DTI shall meet in good faith in an attempt to reach agreement on a budget. If they are unable to do so, the City Manager shall submit DTI's proposed budget to the City Council for approval, in whole or in part. (c) DTI acknowledges that its proposed budget in any given calendar year will consist of $100,000, or any such amount as previously approved by the City Council. (d) DTI further acknowledges that expenditures of DMF funds will be for the purposes identified in the Downtown Enhancements and Parking Modernization Plan. (e) The City shall provide DT1 with $25,000 of DMF funds each quarter (January 1, 25Q-11 April 1, July 1, and October 1) for a total of $100,000 of DMF per year. If the first day of the quarter falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall be made the next day City Hall is open. (f) The City upon depositing DMF monies shall notify DTI by electronic mail of the net amount of funds deposited to DTI. Failure by DTI to receive or acknowledge electronic mail notification shall not constitute a breach of this Agreement. (g) All DMF expenditures must be for the purposes identified in the Downtown Enhancements and Parking Modernization Plan, and must be sufficiently documented by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. If DTI expends any DMF money for unauthorized purposes, the City may, at its sole option, deduct the disputed amount from any future DMF payments to DTI, or may terminate the Agreement pursuant to the terms of section 4.05. (h) In the event questions arise relating to the payment of funds to ATI, DTI may within 15 days of notification request an accounting by the City of the amount of net funds disbursed to DTI. Thereupon the City shall re-evaluate the amount of such. disbursement and give written notification of its decision to DTI which shall be fmal and conclusive. § 2.02 Bi -Annual Financial Statement and And Every six (6) months (June 30 and December 31), DTI shall submit to the City Manager a complete statement of DTPs revenues and expenditures and a financial audit for the preceding half- year prepared by an independent certified public accountant. § 2.03 Financial Records DTI shall keep, or cause to be kept, true, accurate and complete records, including double - entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to determine the amount and nature of all revenues and expenditures. All expenditures and transactions shall be supported by documents of original entry such as sales slips, cash register tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and supporting documents shall be retained by DT1 for a period of three (3) years after the end of the accounting year to which they pertain. § 2.04 Accounting Procedures DTI shall maintain a system of accounting according to Generally Accepted Accounting Practices. 0 25Q-12 § 2.05 Inspection and Audit City shall be entitled, during the tern of this Agreement and for a period of one year following the termination, to: (a) inspect and examine all of DTI's books, statements, records, and supporting documents to ascertain the correctness of DTI's financial statements. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI; and (b) inspect and examine each expense made by DTI to ascertain that all expenses are for the purposes identified in the Downtown Enhancements and Parking Modernization Plan, and that all expenses are sufficiently documented by receipts, purchase invoices, or other permanent evidences of expenditure in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI. ARTICLE 3 INDEMNITY AND INSURANCE § 3.01 Indemnification DTI shall indemnify and save harmless City and its officers, agents and employees from and against any and all claims, demands, loss or liability of any kind or nature which City or its officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as a result of, arising out of, or in any manner connected with DTPs management and/or administration of the DMF funds. § 3.02 Insurance Requirement Gen Prior to the Commencement Date (except as hereinafter otherwise provided), DTI shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Tern, policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of Workers' Compensation Insurance) shall name City as an insured or additional insured and each liability insurance policy shall also name the officers, agents and employees of City as insureds or additional insureds. Each such policy shall also contain a provision that no termination, cancellation or change of coverage or (where applicable) of insured or additional insured shall be effective until after thirty (30) day notice thereof has been given in writing to City. § 3.03 Liability Itas rce DTI shall provide a policy or policies of insurance which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for 25Q-13 any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the operations of DTI, its officers, employees, agents or assigns. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent. § 3.04 Fidelity Bondinn DTI shall provide a policy or policies of insurance insuring DTI against loss due to dishonesty of DTPs officers, agents and employees. Said policy or policies shall provide coverage in not less than $500,000. § 3.05 Workers' Compensation Insurance DTI shall provide a policy or policies of workers' compensation insurance as required by law. § 3.06 Modification of Insurance Requirements The City Manager may modify or suspend the requirements imposed on DTI by this Article if in Esther reasonable determination strict compliance is impossible or excessively costly due to insurance market conditions. ARTICLE 4 DEFAULTS, REMEDIES AND TERMINATION § 4.01 Defaults (a) Failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting party has been given written notice of the default, specifying the nature thereof and a period of sixty (60) days to cure or correct such default (b) Any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. § 4.02 Remedies of City In the event of any default and failure to cure, correct or remedy the same by DTT, City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the following remedies: (a) Delay of any or all transfers of DMF funds to DTI pursuant to §2.01 of this 25Q-14 Agreement until such default is cured, corrected or remedied; provided such delay is approved by the City Council. (b) Terminate this Agreement, provided such termination is approved by the City Council. § 4.03 Legg Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county. § 4.04 Cumulative Rights and Remedies The rights and remedies of the parties are cumulative and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. § 4.05 Termination This Agreement may be terminated by the City for any mason upon thirty (30) days written notice of termination. Upon any termination, or expiration of the Term, the City shall have no further obligation to provide funding or other assistance to DTI pursuant to this Agreement for any period following such expiration or early termination. ARTICLE 5 GENERAL PROVISIONS § 5.01 Representatives (a) All actions authorized to be taken by City pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate any officer of the City as his/her representative with respect to any specified authority given to the City Manager by this Agreement, and in such event the actions of such officer within the scope of such authority shall have the same effect as if taken by the City Manager. (b) All actions authorized to be taken by DTI pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of DTI by DTI's governing board or by such officer of DTI as may be designated by resolution of said governing board. § 5.02 Notices 25Q-15 Notices and written communications sent by one party to the other shall be either personally delivered or sent by U.S. Mail, postage prepaid, to the following addresses: (a) If sent by DTI to City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 With Copies to: City Manager City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 And: City Attorney City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 (b) If sent by City to DTI: Downtown Inc. 200 North Main St. 2°d Floor Santa Ana, CA 92701 Attention: Chairman of the Board § 5.03 Non-assienabili The rights and obligations of DTI under this Agreement may not be assigned or delegated without the prior approval of the City Council. § 5.04 Partial Invalidity If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby. 25Q-16 §5.05 LXclusivity Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both City and DTI. §5.06 Conflict of Interest Clause DTI covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance under this Agreement. §5.07 OC Streetcar Project DTI, and its members, officers, employees, and representatives, agree not to commence, participate in, or assist with any action, legal proceeding, cause of action or suits in law or equity, of whatever kind or nature, in any way, directly or indirectly, against the City, or any parry, on any issue related to the OC Streetcar Project, and knowingly, voluntarily, unconditionally, irrevocably, and expressly forever discharge and release any damages and/or claims, now known or arising in the future, against the City, or any party, on any issue related to the OC Streetcar Project. Any violation of this provision shall be considered a breach of the Agreement subject to immediate termination and cancellation of all funding at the sole and absolute discretion of the City. (signature page follows) 25Q-17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: CITY OF SANTA ANA APPROVED AS TO FORM: SONIA R. CARVALHO City Attooyy _ By: ' Ryan RECOMMENDED FOR APPROVAL: DOWNTOWN, INC. R BERT ZUR C (NAME) at O,tn q4.e Executive Director -- CDA (Title) et ce4 Tax ID# ,26—VO51/6/ IU 25Q-18 EXHIBIT A DOWNTOWN MERCHANTS FUND ANNUAL BUDGET 198-H Exhibit 4 Santa Ana Business Council Proposed "Merchant Fund" Revenue FY 2017-2018 Budget PARKING Revenue Merchant Fund (Parking Revenue TOTAL $100,000 PARKING Expenses Administrative/ Personnel Costs $18,000 Consulting Services, Contractors/ProfesslcnalServices $23,300 Granth/ricer, Specialized Nonprofit Accountant MeeOngs/StakeholderGroups/Training $20,000 Entrepreneurship and Small Business Education Development MarketinglPromotions $9,700 Building Downtown Business &Community Engagement Team, Internship Program Evenis/EntertalnmenUSponsorships $14,000 Downtown Activelion,Circulation, Flows, Urban Tacticalism, Pilot Projects Communications $18,000 News, Print Media, Photography, Videography, Social Meda Support Services TOTAL $100,000 Downtown Inc. Proposed "Merchant Fund" Revenue FY 2017.2018 Budget PARKING Revenue Merchant Fund (Parking Revenua TOTAL $10010 PARKING Expenses Personnel Costs $42,500 Director, Administrative Support Contractors/Professional Services $15,000 Event Producers, Program Coordinators, Production Staff Meetings/StakeholderGroups)Training $12,500 Restaurant Assoc., Arts Meetings, Staff & Stakeholder Development Marketing/Promotions/Events $12,500 Maps, Guides, Savor Santa Ana, Artwalk Communication $10,000 Newsletter, Social Media, Translation, Design, Videos, Photos ORice/Operalionw Technology $7,500 Office Supplies, Web hosting, Subscription Technology Software TOTAL $100,000 25D-14 25Q-20 .4coezv® CERTIFICATE OF LIABILITY INSURANCE DATE(MWDOnYYYI 1210712017 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 ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Michael ROdgick(971632A) 196 Technology Dr Ste B CONTACT A : Mike NAIe_ -jaglG,4��y. 949.753-9555 �_No(: A00 IEys; -m--m[ad*k@f0MI=gBDLcom---:.�_ _ LBERG S AINGCD_VERAG_E __ ____ N8100 ___ _ INSURERP CIRO _—_ Irvine CA 92618-2433 INSURERA: Truck Insurance Exchanqe 21709 INSURED'----��--_v__-_�--i-----------__--INSURERBIFarmersInsuranceExchan9 _ 216522 -- INSURERC: Mid Century Insurance Company 21667 SANTA, ANA BUSINESS COUNCIL, INSURER D: State Fund 1000000 400 E. ATH STREET INSURER E: Travelers Insurance _—~ 31194 S 1,0001000 INSURER F: v ---------- SANTA ANA CA 92701 COVERAGES CERTIFICATE NUMBER: 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 AFFQROED 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. NS • TVPEOPINSURANCE Ai1D fees =8 POLICY NUMBER POUCYEYry PO OOY E%P LBERG I GENERAL LIABILITY X I COMMERCWL GENERALLIAMLITY CIAIMS4ADE�OCCUft T_--------- EACH OCCURRENCE S 1,000,000 OAMAGEiO-FSTttT 1000000 �S S 10,000_ PERSONALSADV INJURY S 1,0001000 B ---------- Y N 605503396 12JO712017 12/07/2018 GENERALAOGREGATE S 2,000.000 GENL AGGREGATE LIMIT APPLIES PER: PRODUCTS�COMP(OPAGO S 2,000,000 POLICY PRO. LOC 1i —_ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Son r'danll _ 1,000,000 BODILY INJURY (Par person) S ANY AUTO B _ ALL OWNED AUTOSULEO NON -OWNED HNiEDAUT05 X AUTOS 605503306 12fO712D17 12lD712018 BODILY INJURY (Par noddan0 S _ PROPERTY O/IMAI;i'E+— B -- — — S UMBRELLA LIAa OCCUR EACH OCCUiiRENCE_ 5 AGGREGATE___ ____ _ EXCESS LIAR CLAIAUSMADE I DED RETENTION S 5 _ WORKERS COMPENSATION OTH- D AND EMPLOYERS'LIABILnY YIN ANY PROPIUETORIPARTNEPfEXECtrrvE = OFFTCEWMEMSER EXCLUDED? tMandatorylnNH) Iryee,describe Under 0 SCRIPTI N OF OPERATIONS Wire, NIA 9081384 17/1012017 12110/2018 I- IIORY.I-IMIl9.1.1 EL EACH ACCIDENT --- E.L. DISEASE -EA WPLOYEE _-. S 1_000_000 — S1,000,000 151.OISEASE-POLICY LIMIT - S — 1,000,00D E Fidelity Bond D&O 106032811 12!1012017 12110/2018 5,000 SIR $500,000 1,000SIR $1,000,000 EPL 1,000 SIR $1,000,000 DESCRIPTONOFOPERATIONSILOCATIONSIVEHICLES (Attach ACORO VII, Additional Remarks Sem,dulo. If mom spaeo is required) 400 E. 4TH STREET, SANTA ANA, CA 92701 CITY OF SANTA ANA, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS ARE NAMED AS ADDITIONAL INSUREDS FOR GENERAL LIABILITY PURPOSES. COVERAGE IS PRIMARY AND NON-CONTRIBUTORY, WITH THIRTY (30) DAYS NOTICE OF CANCELLATION, EXCEPT 10 DAYS FOR NONPAYMENT OF PREMIUMS CERTIFICATE HOLDER CANCELLATION ACORD 25 (2010105) 01988.2010 ACORD CORIPbRAT10%. A71 rights ieserved. The ACORD name and logo are registered marks of ACORD 25Q-21 SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE CITYOFSANTAANA THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 20 CIVIC CENTER PLZ ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE SANTA ANA CA 92701 ACORD 25 (2010105) 01988.2010 ACORD CORIPbRAT10%. A71 rights ieserved. The ACORD name and logo are registered marks of ACORD 25Q-21 POLICY NUMBER: 605503396 BUSINESSOWNERS THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - STATE OR POLITICAL SUBDIVISIONS - PERMITS RELATING TO PREMISES This endorsement modifies insurance provided under the following: BUSINESSOWNERS POLICY SCHEDULE' State or Political Subdivision: CITY OF SANTA ANA, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS The following is added to Paragraph C. WHO IS AN INSURED in the Businessownem Liability Coverage Form: 4. Any state or political subdivision shown in the Schedule is also an insured, subject to the follow- ing additional provision: This insurance apptlea only with reaped to the follow ng hazards for which the state or political subdivision has issued a permit in connection with premises you own, rent, or control and to which this Insurance applies: a. The existence, maintenance, repair, construe - Von, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hots- taway openings, sidewalk vaults, street ban- ners, or decoration and similar exposures; b. The construction, erection, or removal of ele- vators; or c. The ownership, maintenance, or use of any elevators covered by this Insurance. • Information required to complete this Schedule. If not shown on this endorsement, will be shown In the Decla- nations. BP 04 07 0187 Copyright, Insurance Services Office, Inc., 1985 Page 1 of 1 O 25Q-22 EXHIBIT 4 FIRST AMENDMENT TO THE DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT THIS FIRST AMENDMENT TO THE DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT is entered into this 18th day of December, 2018, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and the Santa. Ana Business Council,,=a California non-profit corporation ("SABC"). RECITALS A. On January 11, 2018, the City entered into the Downtown Merchants Fund Operating Agreement #A-2017-327 with SABC to create the Downtown Merchants Fund ("DMF") from a portion of downtown parldng revenues for continued promotion of the downtown ("said Agreement!). The intent of said Agreement is for SABC to receive $100,000 from the DMF each calendar year that such funding is approved by City Council. B. The City hereby approves an additional $100,000 in DMF funds for use by SABC in 2019 pursuant to the terms and conditions of said Agreement. Additionally, the City hereby approves SABC's 2019 DMF Annual Budget. C. In accordance with the terms and conditions of said Agreement, the parties desire to amend said Agreement to extend the term of said Agreement, add an additional $100,000 in DMF funding for the extended term of said Agreement, and incorporate SABC's 2019 DMF Annual Budget into said Agreement. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions of said Agreement, except as herein modified, the parties agree as follows: 1. Pursuant to the terms of said Agreement, the City Council approved an additional $100,000._ in DMF funding for the 2019 calendar year to be utilized by SABC pursuant to SABC's 2019 DMF Annual Budget and the terms of said Agreement. 2. Section 1.02, Term, shall be amended to read as follows: "This Agreement shall commence on the date first written above and terminate on December_ 31-: 2019, unless terminated earlier in accordance with sections 4.02 or 4.05 below." 3. Section 2.01, Annual Budget and Program Report, subsection (a), shall be amended to reflect the City's approval of SABC's 2019 DMF Annual Budget, a true and correct copy of which is attached hereto as Exhibit A and incorporated herein by reference. 25Q-23 4. Section 2.02, Bi -Annual Financial Statement and Audit, shall be amended to read as follows: "Annual Financial Statement and Audit No later than November I of each year, SABC shall submit to the City Manager a complete statement of SABC's revenues and expenditures and a financial audit for the preceding year prepared by an independent certified public accountant." 5. Except as hereinabove modified, the terms and conditions of said Agreement remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Approval and Amendment to said Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA RAUL GODINEZ II City Manager SANTA ANA BUSINESS COUNCIL: l � GAJ Pauf Yanez President Tax ID# 90-0975204 25Q-24 EXHIBIT A DOWNTOWN MERCHANTS FUND ANNUAL BUDGET Santa Ana Business Council Budget Administrative/Personnel Costs $18,000 -- Consulting Services Contractors/Professional Services $23,300 -- Grant Writer, Specialized Nonprofit Accountant Meetings/Stakeholder Groups/Training $20,000 -- Entrepreneurship and Small Business Education Development Marketing/Promotions $9,700 -- Building Downtown Business &Community Engagement Team, Internship Program Events/Entertainment/Sponsorships $14,000 -- Downtown Activation, Circulation, Flows, Urban Tacticalism, Pilot Projects Communication $15,000 -- News, Print Media, Photography, Videography, Social Media Support Services Santa Ana Business Council TOTAL: $100,000 25Q-25 25Q-26 INSURANCE ON FILE WORKMAYPROCEED PIRGSCLERKOF1-TUNNT DATE` JAN 19 2018 EXHIBIT 5 DOWNTOWN MERCHANTS FUND OPERATING AGREEMENT A-2017-327 This OPERATING AGREEMENT made and entered into this —/ day of _j� 2018, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and the Santa Ana Business Council, a California non-profit corporation ("SABC"). RECITALS A. On August 4, 2015, the City Council adopted the Downtown Enhancements and Parking Modernization Plan to address the need to modernize parking structures, enhance public amenities, and address deferred maintenance in the downtown (Santa Ana Ordinance No. NS - 2880). B. Downtown business associations and stakeholders agreed to an increase in parking rates and the implementation of new smart meters in the downtown area with the understanding that increased revenue from these new rates and smart meters would be reinvested back into the downtown. C. As part of the Plan, it was proposed that a Downtown Merchants Fund ("DMF) be created for continued promotion of the downtown. This funding will continue to support strong marketing efforts and will allow for successful year-round administration of events for the downtown. D. Both SABC and Downtown, Inc. have provided budgets for the administration of the DMF. This additional $100,000 per organization will complement the existing funds each association receives from the City's Business Improvement District (`BID"). E. The City and SABC under this Operating Agreement propose to: (1) confirm that SABC will receive $100,000 from the DMF each calendar year that such funding is approved by City Council; (2) to provide that SABC's use of said DMF funds will be consistent with its approved DMF Annual Budget; and, (3) to provide for auditing of SABC's DMF funds. WHEREFORE, and in consideration of the mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Operating Agreement, the parties hereto do hereby agree as follows: ARTICLE 1 PRELIMINARY MATTERS § I.01 Definitions As used in this Operating Agreement, the following terms shall have the following meanings: 25Q-27 (a) "City" means the City of Santa Ana, California. (b) "City Council" means the City Council of the City. (c) "City Manager" means the City Manager of the City or his/her designated representative(s). (d) "DMF" means Downtown Merchants Fund, a fund created from downtown parking revenues to, support marketing of the downtown. (e) "SABC" means Santa Ana Business Council, a California nonprofit corporation. (f) `Board" means the Board of SABC. § 1.02 Term This Agreement shall commence on the date first written above and terminate on ,20—, unless terminated earlier in accordance with sections 4.02 or 4.05, below. The Term of this Agreement shall be automatically renewed in one (1) year Renewal Terms, unless terminated earlier in accordance with sections 4.02 or 4,05, below. § 1.03 Status of SABC (a) By its execution of this Agreement, SABC warrants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of Incorporation and Bylaws and a true and correct listing of SABC's officers and their terms of office, certified as such by SABC's Secretary, have been filed with the Clerk of the Council. (b) By its execution of this Agreement, City accepts and agrees to the organization of SABC as set forth in the above said Articles of Incorporation and Bylaws. § 1.04 Compensation of SABC Board Members and Meetings (a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of the SABC Board. When conducting meetings related to the DMF, members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for SABC when authorized by the SABC Board. § 1.05 Changes in Officers, Articles and Bylaws SABC shall notify the Clerk of the Council of any change in the membership of the Board and any change in the officers of SABC. Any amendment of SABC's Articles or Bylaws shall be filed with the Clerk of the Council. 2 25Q-28 §1.06 City Representation at Meetings of SABC The City Manager shall be entitled to attend all meetings of SABC related to the DMF and to participate in the discussions of the Board to the same extent as the members of the Board, and SABC shall assure that the City Manager is provided with reasonable advance notice of all meetings of SABC. Nothing herein shall be construed to provide the City Manager with any authority to make, second, or vote on motions, or to cause him/her to be counted for purposes of determining whether a quorum exists at meetings of SABC. §1.07 City Residents Downtown Property Owners and Business Operators on the Board A majority of the Board shall be City residents, downtown property owners, or business operators. If the number of members who are City residents, downtown property owners, or business operators becomes less than a majority due to the death, resignation, or change of residence or business location, SABC shall not be in default under this section, provided, however, that the next member appointed to the Board shall be a City resident, downtown property owner, or business operator. ARTICLE 2 REPORTS AND RECORDS AND DMF FUND TRANSFERS § 2.01 Annual Budget and Program Report (a) No later than November 1 of each year, SABC shall provide the City Manager with a copy of a detailed calendar year operating budget showing expected sources of revenue and the nature of all expected or proposed expenditures for the forthcoming calendar year and a report on the proposed programs to be undertaken by SABC in said calendar year. A true and correct copy of SABC's 2018 DMF Annual Budget is attached hereto as Exhibit A and incorporated herein by reference. (b) If the proposed budget is accepted by the City Manager, it shall be submitted to the City Council for approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City Manager and SABC shall meet in good faith in an attempt to reach agreement on a budget. If they are unable to do so, the City Manager shall submit SABC's proposed budget to the City Council for approval, in whole or in part. (c) SABC acknowledges that its proposed budget in any given calendar year will consist of $100,000, or any such amount as previously approved by the City Council. (d) SABC further acknowledges that expenditures of DMF funds will be for the purposes identified in the Downtown Enhancements and Parking Modernization Plan. (e) The City shall provide SABC with $25,000 of DMF funds each quarter (January 1, April 1, July 1, and October 1) for a total of $100,000 of DMF per year. If the first day of the 25Q-29 quarter falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall be made the next day City Hall is open. (f) The City upon depositing DMF monies shall notify SA13C by electronic mail of the net amount of funds deposited to SABC. Failure by SABC to receive or acknowledge electronic mail notification shall not constitute a breach of this Agreement. (g) All DMF expenditures must be for the purposes identified in the Downtown Enhancements and Parking Modernization Plan, and must be sufficiently documented by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. If SABC expends any DMF money for unauthorized purposes, the City may, at its sole option, deduct the disputed amount from any future DMF payments to SABC, or may terminate the Agreement pursuant to the terms of section 4.05. (h) In the event questions arise relating to the payment of funds to SABC, SABC may within 15 days of notification request an accounting by the City of the amount of net funds disbursed to SABC. Thereupon the City shall re-evaluate the amount of such disbursement and give written notification of its decision to SABC which shall be final and conclusive. § 2.02 Bi -Annual Financial Statement and Audit Every six (6) months (June 30 and December 31), SABC shall submit to the City Manager a complete statement of SABC's revenues and expenditures and a financial audit for the preceding half- year prepared by an independent certified public accountant. § 2.03 Financial Records SABC shall keep, or cause to be kept, true, accurate and complete records, including double - entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to determine the amount and nature of all revenues and expenditures. All expenditures and transactions shall be supported by documents of original entry such as sales slips, cash register tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and supporting documents shall be retained by SABC for a period of three (3) years after the end of the accounting year to which they pertain. § 2.04 Accounting Procedures SABC shall maintain a system of accounting according to Generally Accepted Accounting Practices. 4 25Q-30 § 2.05 Inspection and Audit City shall be entitled, during the term of this Agreement and for a period of one year following the termination, to: (a) inspect and examine all of SABC's books, statements, records, and supporting documents to ascertain the correctness of SABC's financial statements. Any such inspection and/or exmnination shall be conducted during normal business hours with prior 15 days written notice to SABC; and (b) inspect and examine each expense made by SABC to ascertain that all expenses are for the purposes identified in the Downtown Enhancements and Parking Modernization Plan, and that all expenses are sufficiently documented by receipts, purchase invoices, or other permanent evidences of expenditure in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to SABC. ARTICLE 3 INDEMNITY AND INSURANCE § 3.01 Indemnification SABC shall indemnify and save harmless City and its officers, agents and employees from and against any and all claims, demands, loss or liability of any kind or nature which City or its officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as a result of; arising out of, or in any manner connected with SABC's management and/or administration of the DMF funds. § 3.02 Insurance Reauirement Generall Prior to the Commencement Date (except as hereinafter otherwise provided), SABC shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Tenn, policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of Workers' Compensation Insurance) shall name City as an insured or additional insured and each liability insurance policy shall also name the officers, agents and employees of City as insureds or additional insureds. Each such policy shall also contain a provision that no termination, cancellation or change of coverage or (where applicable) of insured or additional insured shall be effective until after thirty (30) day notice thereof has been given in writing to City. § 3.03 Liability Insurance SABC shall provide a policy or policies of insurance which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising 25Q-31 out of the operations of SABC, its officers, employees, agents or assigns. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent. § 3.04 Fidelity Bonding SABC shall provide a policy or policies of insurance insuring SABC against loss due to dishonesty of SABC's officers, agents and employees. Said policy or policies shall provide coverage in not less than $500,000. § 3.05 Workers' Compensation Insurance SABC shall provide a policy or policies of workers' compensation insurance as required by law. § 3.06 Modification of Insurance Requirements The City Manager may modify or suspend the requirements imposed on SABC by this Article if in his/her reasonable determination strict compliance is impossible or excessively costly due to insurance market conditions. ARTICLE 4 DEFAULTS, REMEDIES AND TERMINATION § 4.01 Defaults (a) Failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting party has been given written notice of the default, specifying the nature thereof, and a period of sixty (60) days to cure or correct such default. (b) Any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. § 4.02 Remedies of Citv In the event of any default and failure to cure, correct or remedy the same by SABC, City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the following remedies: 25Q-32 (a) Delay of any or all transfers of DMF funds to SABC pursuant to §2.01 of this Agreement until such default is cured, corrected or remedied; provided such delay is approved by the City Council. (b) Terminate this Agreement, provided such termination is approved by the City Council. § 4.03 Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county. § 4.04 Cumulative Rights and Remedies The rights and remedies of the parties are cumulative and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. § 4.05 Termination This Agreement may be terminated by the City for any reason upon thirty (30) days written notice of termination. Upon any termination, or expiration of the Term, the City shall have no further obligation to provide funding or other assistance to SABC pursuant to this Agreement for any period following such expiration or early termination. ARTICLE 5 GENERAL PROVISIONS § 5.01 Representatives (a) All actions authorized to be taken by City pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate any officer of the City as his/her representative with respect to any specified authority given to the City Manager by this Agreement, and in such event the actions of such officer within the scope of such authority shall have the same effect as if taken by the City Manager. (b) All actions authorized to be taken by SABC pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of SABC by SABC's governing board or by such officer of SABC as may be designated by resolution of said goveming board. 25Q-33 § 5.02 Notices Notices and written communications sent by one parry to the other shall be either personally delivered or sent by U.S. Mail, postage prepaid, to the following addresses: (a) If sent by SABC to City: With Copies to: I:RA (b) If sent by City to SABC: Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 City Manager City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 City Attorney City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Santa Ana Business Council § 5.03 Non-assi ang bitty The rights and obligations of SABC under this Agreement may not be assigned or delegated without the prior approval of the City Council. § 5.04 Partial Invalidity If any term, covenant, condition, or provision of this Agreement is held by a court of competentjurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof H 25Q-34 shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby. §5.05 Exclusivity Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both City and SABC. §5.06 Conflict of Interest Clause SABC covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance under this Agreement. §5.07 OC Streetcar Project SABC, and its members, officers, employees, and representatives, agree not to commence, participate in, or assist with any action, legal proceeding, cause of action or suits in law or equity, of whatever kind or nature, in any way, directly or indirectly, against the City, or any party, on any issue related to the OC Streetcar Project, and knowingly, voluntarily, unconditionally, irrevocably, and expressly forever discharge and release any damages and/or claims, now known or arising in the future, against the City, or any party, on any issue related to the OC Streetcar Project. Any violation of this provision shall be considered a breach of the Agreement subject to immediate termination and cancellation of all funding at the sole and absolute discretion of the City. (signature page follows) 25Q-35 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorpqy By: Ryan RECOMMENDED FOR APPROVAL: BERT Executive Directo —CDA CITY OF SANTA ANA RAUL GOD City Manager SANTA ANA BUSINESS COUNCIL r_ (N E) (Title) �/.� �i'eScC%2i1� 10 25Q-36 EXHIBIT A DOWNTOWN MERCHANTS FUND ANNUAL BUDGET Nl lh Exhibit 4 Santa Ana Business Council Proposed "Merchant Fund" Revenue FY 2017-2018 Budget PARKING Revenue $42,500 Merchant Fund (Parking Revenue TOTAL W0,00 PARKING Expenses $15,000 Administrative/ Personnel Costs $18,000 Consu (ting Services, $12,500 Contractors/ProfesslenalServices $23,300 GrantVIricer, Specialized Nonprofit Accountant $12,500 Meetings/StakeholderGroupsfrraining $20,000 Entrepreneurship and Small Business Education Development $10,000 Markeling(Promotions $9,700 Building Downtown Business &Community Engagement Team, Internship Program $7,500 EventsfEntertainment/Sponsorships $14,000 Downtown Activadon,Circulation, Flows, Urban Tacticatism, Pilot Projects communications $15,000 News, Print Media, Photography, Videography, Social Media Support Services TOTAL $100,000 Downtown Inc. Proposed "Merchant Fund" Revenue FY 2017.2018 Budget PARKING Revenue Merchant Fund (Parking Revenue TOTAL $100,000 PARKING Expenses Personnel Costs $42,500 Director, Administrative Support Contractors/Professional Services $15,000 Event Producers, Program Coordinators, Production Staff Meetings/StakeholderGroups/Training $12,500 Restaurant Assoc„ Arts Meetings, Staff & Stakeholder Development Marketing/Promotions/Events $12,500 4laps, Guides, Savor Santa Ana, Anwalk Communication $10,000 Newsletter, Social Media, Translation, Design, tide -os, Photos OfFce/Operalions/Technology $7,500 Office Supplies, Web hosting, Subscription Technology Software TOTAL $100,000 CERTIFICATE OF LIABILITY INSURANCE ( DA 12JO71201Y7 1 2/0 712 01 7 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 ADDITIONAL INSURED, the pollcy(los) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the PRODUCER 1AME6_I Mlke Michael Rodglck(971832A) PHONE 94, 196 TechnologyOr Ste B ADDRESS; goDREss: mrod CA SANTA, ANA BUSINESS COUNCIL, 400 E. 4TH STREET COVERAGES CERTIFICATP NI IMPOPP. omliainns ur moee�. THIS IS TD 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. IITTt TYP50FINSURANCE INSR SUB�CYNUMSER PIDWoo EPS MMIDD E%P LIMITS - GENERALUABILITY X COMMERCIAL GENERAL LIABILITY 'CLAIMS -MAGE nOCCUR EACH OCCURRENCE "-- _bw6E'Yb'TIERTED RISES EagwfmKW MEO EXP Any an�oreanj-_ 5 11000,0000 - S 1000000 S 10,000 Y N 605503396 12/0712017 12/07/2018 PERSONALBADVINJURY s GENERAL AGGREGATE_ x11000000 S__2,000,DOO GENL AGGREGATE POUCV LIMIT APPLIES PER: PRO LOC II PRODUCTS -COMPIOPAGG S_ 2,000,00_0 E AUTOMOBILE LIABILITY COMBINED SINGLC OMIT En accMa,l 1,000,00_0__ BODILY INJURY (P.ALL person) ___ $ _ ANY AUTO_ B AUTOS NEO SCHEDULED OS HIRED AUTOS X NON -OWNED AUTOS 605503398 12fD7/2017 12/07/2018 BODILY INJURY(Pwacritlsne S 5 UMBRELLA LIAR OCCUR EACH OCCURRECE SrEXCESSLIAB W WSOE O—RETE I _ — AGGREGATE $ S D (WORKERS COMPENSATION ANDEMPLOYERS'LIABILITY YIN IANY PROPRIETOWPAATNEWEXECUTIVE OFFICERJMEMBER EXCLUDED? NIA I 9081384 121102017 12A%2018 v WC STATU I OTH- ^ TORY IMITS�._ _EB. EL EACH ACCIDENT —'--qqT----- __— $ 1,000,000 S - -- IlMandalPrylnNHl Ilya, desmbe under DESCRIPTION OF OPERATIONS balwr E.L 2.SEgSE_EA tLPLOYE E.L. O7SEASE-POLICY LIMIT $ 11000,000 5 1,000,000 E j Fidelity Bond D80 EPL 106032811 12/10/2017 12/102018 11.000 5,000 SIR $500,000 1,000 SIR $1,000,000 SIR $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES IAHech ADGflD 101, gddlHansi Romarks Schoduln, Ilnwrn epaco le mqulmtl) 400 E. 4TH STREET, SANTA ANA, CA 92701 CITY OF SANTA ANA, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS ARE NAMED AS ADDITIONAL INSUREDS FOR GENERAL LIABILITY PURPOSES. COVERAGE IS PRIMARY AND NON-CONTRIBUTORY, WITH THIRTY (30) DAYS NOTICE OF CANCELLATION, EXCEPT 10 DAYS FOR NONPAYMENT OF PREMIUMS SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CITY OF SANTA ANA THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 20 CIVIC CENTER PLZ ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE SANTA ANA CA 92707 010/05)"1•I-n`'V0✓199BBB-2010ACOR1/D�COR RAT102N!'.^Ail Tiahts Teserved. The ACORD name and I o aegl e d marks of ACORD 5U39- POLICY NUMBER: 605503396 BUSINESSOWNERS THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ R CAREFULLY. ADDITIONAL INSURED - STATE OR POLITICAL SUBDIVISIONS - PERMITS RELATING TO PREMISES This endorsement modifies insurance provided under the following: BUSINESSOWNERS POLICY SCHEDULE' State or Political Subdivision: CITY OF SANTA ANA, ITS OFFICERS, AGENTS, EMPLOYEES AND VOLUNTEERS The following is added to Paragraph C. WHO IS AN INSURED In the Businessowners Liability Coverage Form: 4. Any state or political subdivision shown in the Schedule is also an insured, subject to the foliow- ing additional provision: This insurance applies only with respect to the following hazards for which the state or political subdivision has issued a permit In connection with premises you own, rent, or control and to which this Insurance applies. a. The existence, maintenance, repair, contrac- tion, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hols- taway openings, sidewalk vaults, street ban- ners, or decoration and similar exposures; b. The construction, erection, or removal of sit - vators; or c. The ownership, maintenance, or use of any elevators covered by this insurance. • Information required to complete this Schedule. If not shown on this endorsement, will be shown In the Decla- rations. BP 04 07 0187 Copyright, insurance Services Office, Inc., 1985 Page 1 of 1 25Q-40 W