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HomeMy WebLinkAbout75A - PH 2019-85REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: OCTOBER 20, 2020 TITLE: PUBLIC HEARING — ENVIRONMENTAL REVIEW NO. 2019-85 FOR DENSITY BONUS AGREEMENT APPLICATION NO. 2020-01, SITE PLAN REVIEW NO.2020-01, SITE PLAN REVIEW NO. 2020-02, AND DISPOSITION AND DEVELOPMENT AGREEMENT WITH CARIBOU INDUSTRIES FOR THE 31d AND BROADWAY DEVELOPMENT AT 201 WEST 3rd STREET (PROPERTY OWNER: CITY OF SANTA ANA AND APPLICANT: CARIBOU INDUSTRIES, INC.) /s/ Kristine Ridge CITY MANAGER CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 111 Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Adopt a resolution approving an addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH No. 2006071100) and adoption of a mitigation monitoring and reporting program for Density Bonus Agreement Application No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, and the Disposition and Development Agreement. 2. Adopt a resolution approving Density Bonus Agreement Application No. 2020-01 with concessions and waivers and authorize the City Manager to execute a Density Bonus Agreement with Caribou Industries Inc. or assignees for a 55-year term, for the development of a mixed -use residential and commercial development with up to 171 residential rental units, including 19 residential rental affordable units, at 201 West 3rd Street, subject to non - substantive changes approved by the City Manager and City Attorney. 3. Adopt a resolution approving Site Plan Review No. 2020-01 for a mixed -use development as conditioned. 4. Adopt a resolution approving Site Plan Review No. 2020-02 for a hotel as conditioned. 5. Adopt a resolution approving a Disposition and Development Agreement and authorize the City Manager to enter into a Disposition and Development Agreement with Caribou Industries for the 3rd and Broadway development project, subject to non -substantive changes approved by the City Manager and City Attorney. 75A-1 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 2 OR ALTERNATIVELY, 6. Authorize the City Manager to execute a second amendment to the second Exclusive Negotiation Agreement (ENA) with Caribou Industries to extend the term for a 60-day period from November 6, 2020 to January 5, 2021 for the 3rd and Broadway development, subject to non -substantive changes approved by the City Manager and City Attorney EXECUTIVE SUMMARY Mike Harrah, representing Caribou Industries, is requesting approval of multiple entitlements to replace the existing City -owned, 3-level parking garage with a mixed -use development that will consist of two separate buildings. Specifically, the applicant is proposing to construct a 16-story mixed -use building consisting of 171 residential units (with 19 very -low income units) and 13,419 square feet of commercial space (including retail and food/beverage establishments), and a 10- story, 75-room hotel at 201 West 3rd Street. Additionally, the applicant is requesting approval of an addendum to the Transit Zoning Code Environmental Impact Report, a density bonus agreement (DBA) with concessions and waivers, two site plan review (SPR) applications and a Disposition and Development Agreement (DDA). The current Exclusive Negotiation Agreement (ENA) with Caribou Industries expires on November 6, 2020. If the City Council does not approve the actions presented, an alternative action is to extend the term of the ENA for another 60 days to allow for additional time to bring the project back to the City Council. This public -private partnership will result in the redevelopment of underutilized land and aging infrastructure, development of apartments and extended stay hotel rooms to accommodate a demand in Downtown Santa Ana and to the nearby Orange County Courthouse facility, development of 19 affordable housing units for very low-income families in downtown Santa Ana, increased employment opportunities within the City, reconnecting the City's grid system with Sycamore Street and additional property taxes, sales taxes, and transient occupancy taxes produced from the project site. As the project is located in the City's Opportunity Zone, investors will be extremely attracted to this high - profile project in the heart of downtown Santa Ana. This exciting project for the downtown has been in discussion since 2014 and will add tremendous economic value to the existing businesses and the surrounding neighborhoods. DISCUSSION The proposed project is located at 201 West 3rd Street, at the northeast corner of Broadway and 3rd Street. Caribou Industries, a local developer and property owner in the City, proposes to replace the existing City -owned, 3-level parking garage with a mixed -use development containing 171 housing units (with 19 for low income residents), a 75-room boutique hotel, 13,419 square feet of commercial space (including retail and food/beverage establishments), and rooftop amenities ancillary to residential and hotel uses. The development would be composed of two buildings: a 16-story, 194-foot-tall mixed -use (residential and commercial) building and a 10-story, 128-foot tall hotel building. The buildings would be separated by an extension of Sycamore Street from the north edge of the project site to West 3rd Street. The proposed project would provide 490 total parking spaces, including 211 public parking spaces, 196 residential parking spaces, and 83 hotel parking spaces. 75A-2 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 3 Table 1: Development Project Summary Item Mixed -Use Development Parcel 1 Hotel Parcel 2 Units/Rooms 171 units 75 rooms Building 197,726 SF 63,069 SF Square Footage SF Unit Mix/Room 95 studios 66 standard rooms 51 one -bedrooms 9 suites 25 two -bedrooms Unit SF 547 to 722 SF one -bedrooms 418 to 527 SF standard rooms 625 to 968 SF one -bedrooms 855 SF suites 1,002 to 1,637 two- bedrooms/penthouse Commercial SF 13,419 SF 520 to 3,692 SF units N/A Height & 16 stories, 193'-10" 10-stories, 127'-6" Stories Parking 196 spaces 83 spaces 1 space/1 bedroom and 2 spaces/2 1 space per room + 1 space per 10 bedroom rooms Open Space/ 1st floor: 731 SF lobby and 727 SF 1st floor: 4,046 SF lobby Amenities lobby 3'd floor: 734 sf public outdoor area 3'd floor: 1,184 SF public outdoor 4th 6th 8th floors: 287 SF guest terrace deck 5th 9th floors: 287 SF amenity space 4th floor: 731 SF fitness room, 730 SF 7th floor: 287 SF meeting room outdoor deck 10th floor: 3,722 SF seating area, 853 5th floor: 733 SF event space, 3,901 SF meeting room and 287 SF terrace outdoor deck 16th floor: 2,925 SF rooftop pool deck Background On September 16, 2014, the City Council directed the Planning and Building Agency (PBA) to release a Request for Qualifications (RFQ) for the 3rd and Broadway Development Project. The RFQ outlined several project components desired by the City Council. Among the components of the new project was a desire to include a hotel/hospitality component. Five proposals were received and only the Caribou Industries proposal included a hotel. In 2016, the project was put on hold due to several City executive staff changes. On March 21, 2017, the City entered into an Exclusive Negotiation Agreement (ENA) with Caribou Industries for the 3rd and Broadway project. To assist with the negotiations, the City also entered into a contract with consultant Lisa Stipkovich to lead negotiations for the City and identify transaction business terms. On May 7, 2019, the City Council approved the execution of a second ENA with Caribou to allow for the entitlement process and the final negotiation of the business terms for the DDA. Since 75A-3 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 4 the execution of the second ENA, the developer has been working on his entitlements for the project. At the September 28, 2020 Planning Commission public hearing, by a vote of 6-0-1 (Phan abstained), the Commission approved Variance No. 2020-05 to utilize the Santa Ana Municipal Code (SAMC) Section 41-1344 standards for hotel off-street parking and to allow deviations from the off-street parking access requirement and Tentative Parcel Map. No. 2020-02 to create two development sites and establish airspace to allow for separate interest and ownership of public parking spaces and to provide vehicular and pedestrian access to a private street through a public access easement and the associated addendum to the Environmental Impact Report (EIR) for the project. In addition, the Planning Commission recommended City Council approval of the addendum, DBA, and SPR applications (Exhibit 4). Economic Development Summary and Subsidy Report Kosmont Companies, a land economics consulting firm, was retained to provide a financial feasibility analysis of the Caribou proposal. In their analysis, Kosmont has validated that the proposed project, which requires the demolition of the current parking structure, replacement of public parking spaces, and the reconnection of Sycamore Street, has a significant financial gap and a subsidy is warranted. The proposed deal structure would minimize the financial gap as follows: The City would segregate typical costs to develop a site such as demolition of the existing parking structure and preparation for development, as well as public improvements such as replacement public parking and a reconnection of a public street (Sycamore Street) as the City's responsibilities. The costs for the City's responsibilities are estimated by the developer at $13 million. The City cost will be based on the actual cost of the public improvements with a maximum cap of $13 million. The City would finance the capital costs through public financing at a later date. The developer will pay the debt service through an Operating Agreement whereby the developer will operate the public parking and pay all costs associated, with no financial risk to the City. The subsidy amount ($13 million) is within the feasibility gap as estimated by Kosmont. The hotel is the biggest economic risk, especially during the recent pandemic. However, the possibility of future conversion to residential if the hotel is not economically viable in the first 5 years provides an economic alternative that helps to mitigate the risk. As part of the approval process and in accordance with Government Code Sections 52201 and 53083, a project summary and economic development subsidy report (Exhibit 5) must be completed and submitted detailing the project, the structure of the public subsidy, projected tax benefits, and estimated number of jobs that would be created by the subsidy. This report shall be available to the public and posted on the City's website until the end date of the economic development subsidy. This analysis does not take into consideration the value of the public benefit of 19 affordable housing units for very low-income families that will be developed on -site by the developer at no cost to the City. 75A-4 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 5 Disposition and Development Agreement The next step in the process is to enter into a Disposition and Development Agreement (DDA) with Caribou Industries. A DDA is a contract between a developer and the City that involves the sale of City -owned land to the developer. The DDA will fully detail the final terms of the transaction, including a schedule of completion with milestones for the developer to achieve, the method of conveyance of the property, parking structure operational agreements, and all City participation options if the project is sold in the future (Exhibit 6). The City will not convey the site, nor will the existing parking be demolished, until the developer has met all obligations defined in the DDA, obtained all approved permits and entitlements, and provided proof of financing for construction of the project. Below is a summary of the transaction business terms. Summary of Business Terms Proposed Project: Land Use: Mixed -Use Residential units: 171 apartments with 19 very -low income units Residential Only Parking: 196 spaces Retail: 13,419 sq. ft. Public Parking: 211 spaces Hotel: 75 keys with 83 parking spaces City Responsibilities: The City will fund the costs for public improvements to ready the site for development. This will include the demolition of the existing parking structure, preparation of the site for development, the construction of Sycamore Street reconnection, and construction of 211 public parking spaces to replace the existing parking currently provided at the 3'd and Broadway parking structure. The estimated cost for public improvements is $7 million for the construction of the 211 public parking spaces and $6 million for the additional public improvements. The estimated debt service (at an interest rate of 4%) for the public improvements would be $750,000 per year for 30 years. Developer Responsibilities: The developer's obligations for the project include providing funding to finance the over $100 million development project, processing all entitlements, construction of the public improvements, designing and operating a hotel, and managing and operating the public parking for the project. The developer will also have the option to convert the hotel to residential after three years of operation if certain revenues per available room thresholds are reached. This would indicate the hotel is not financially sustainable after those first three years to continue operations. The developer will guarantee that the anticipated revenues from the parking will cover the City's estimated annual debt service of $750,000. There will be no out-of-pocket costs to the City. Community Workforce Agreement The DDA requires that the developer shall be subject to the City's Community Workforce Agreement policy adopted by the City Council in 2017. This project labor agreement establishes local hiring requirements for construction projects and requires using unionized labor for the work. 75A-5 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 6 The agreement is with the Los Angeles/Orange County Building and Construction Trades Council, which represents about 140,000 workers in dozens of trade unions, many of them Santa Ana residents. Public Parking Availability During Construction During construction of the 3'd and Broadway project, downtown parking will decrease by 440 spaces. Table 3 demonstrates the availability of sufficient parking within City -owned parking facilities to absorb the 440 parking spaces within our own current inventory. Downtown Santa Ana's existing parking supply is more than sufficient to meet current demand. However, there may be a decrease in parking revenue as a result of the reduction of 440 spaces at the 3'd and Broadway Parking Structure. During construction, there exists convenient options available for public parking. It is important to note that these numbers were calculated before the COVID pandemic. The pre-COVID capacity of the existing parking facilities can accommodate the demolition of 440 public parking spaces now located within the 3'd & Broadway Parking Structure. Table 2: Total Spaces Downtown Descriptions Spaces City -Owned 1,995 Parking Metered 500 Spaces Non -City -Owned 1,407 Total Today 3,902 Removed During (440) Construction Total During 3,462 Construction Added with project 211 Total After Project 3,673 75A-6 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 7 Table 3: Downtown Public Parking Inventory 3rd & 5th & 3rd & 3'd and 5th & Main Bush Total Broadway Spurgeon Birch Lot # of total spaces 440 700 400 400 55 1995 # of Users at 331 223 312 234 13 1113 Peak Time # of spaces for 109 477 88 166 42 882 daily users % of total spaces available 24% 68% 22% 41 % 76% 44% for public "Peak I ime Data Collected on 12/S/19 at 12pm In addition to the above -mentioned City -owned parking, there are also parking spaces available at County -owned and private lots in the downtown area: Table 4: Downtown Private Parking Inventory 812 N. Downtown County Private lots in Sycamore Structures downtown Private Number of Parking Spaces 547 660 200 With the availability of parking in City -owned parking structures, County -owned parking structures, metered parking, and privately owned lots, staff remains confident that sufficient parking exists both before and after construction of the project to satisfy visitors and the existing business community. Table 5 represents the distance and the number of steps to each structure. Table 5: Distance to Alternative Parking Structures 5th rd 3 aLo Bush Spurgeon 31d &Birch 5th &Main Feet from 3'd and Broadway 1,250 739 660 790 Steps from 3'd and Broadway 500 295 264 316 Site Plan Review The mixed -use development will be a 16-story urban building within the downtown zone and will be a harmonious development to the City and increase the desirability of investment or occupation of the downtown neighborhood. The development will facilitate the replacement of a parking 75A-7 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 8 structure, with no features of pedestrian interest, with a multi -story building with pedestrian oriented retail, service, and residential uses. In addition, the inclusion of 19 very -low income housing units creates housing opportunities for very -low income households within a high -amenity mixed -income development. Conditions of approval for public art, public access to the fifth floor deck and community room, and compliance with a parking management plan are included in the SPR. The hotel conforms to the building form, character, and quality of the downtown zone. The hotel will be the first in downtown and can cater to individuals doing business at the nearby government facilities and office buildings. Additionally, the hotel will make downtown Santa Ana feasible as an overnight destination to those visiting the Orange County area. The development site is accessible to the OC Streetcar, Santa Ana Regional Transportation Center, and local bus routes. Redevelopment of the superblock into two development sites with a new sidewalk and street grid will link the existing Artist Village and west -end commercial uses with the rest of downtown to help activate the area. Furthermore, the development is consistent with General Plan Land Use Element Goals 1, 2, 3 and 4, and several policies (Policies 1.1, 3.7, 3.1 and 4.5 and 5.1) which aim to promote development within the City's District Centers, redevelop and revitalize the City's urban areas within close proximity to transit, and promote land uses that enhance the City's economic and fiscal viability. The proposed mixed -use and mixed -income community and hotel satisfies the goals by providing On -Site affordable units in a high -amenity development located in downtown, reducing the need for automobile dependence by encouraging transit ridership and generating sales tax and hotel tax revenues. Architecture and Amenities The architectural style of the development is California Contemporary, which is one of the six architectural styles permitted by the Transit Zoning Code (TZC). The mixed -use building has been designed as three distinct masses, with an open roof deck at the fourth and fifth levels to provide views of the W.H. Spurgeon Building's clock tower to the north. The building detail at the lower levels, including tan masonry brick street walls and recessed retail entrances, will link the project to the existing environment and is similar to the buildings that characterize downtown Santa Ana. The middle building mass is composed mainly of the parking structure, which will be screened with angled perforated metal panels and a brass finish. The upper portion of the building contains the residential units with floor -to -ceiling glass windows and balconies. The hotel is a contemporary building designed generally as a single mass. The building will feature a 4,046-square foot ground -level lobby, 300-square foot meeting space on the seventh floor, 853- square foot meeting room on the tenth floor, 300-square foot amenity rooms, outdoor terraces and balconies, and a roof deck with a kitchen and outdoor seating that will overlook downtown Santa Ana. It is proposed that the rooftop will be accessible to the public and provide food and beverage service. The exterior of the building includes high -quality material such white marble with contrasting grey metal panels and bronze window frames that will create a visual icon within downtown Santa Ana. 75A-8 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 9 Public wall art is proposed on each elevation of the mixed -use building and at the ground level of the hotel building. To promote walkability, sidewalks ten feet in width will be provided along base of the buildings, benches will be installed at the corners of Sycamore and 3rd Street, and new Sycamore trees along Sycamore Street will be planted. With proper permits and approvals, it is intended that Sycamore Street could be closed temporarily for events such as a farmer's market or artisan fair, with City approvals. State Density Bonus Law The applicant is proposing to dedicate 11 percent of the total units (19 units, including ten studios, six one -bedrooms, and three two -bedrooms proportional to the residential project's unit mix) to be attainable to very -low income households. Therefore, the project is eligible for a density bonus, concession/incentives, waivers, and parking reductions per state law (California Government Code Section 65915) in exchange for providing affordable units on -site. To ensure that the units are dedicated as affordable for a period of a minimum of 55 years, the applicant will enter into a DBA with the City (Exhibit 7). The law also restricts the ability of local jurisdictions to require studies to "justify" the density bonus and requested incentives/waivers. The law places the responsibility on local jurisdictions to prove that the incentives/concessions or waivers are not financially warranted and requires substantial evidence determining that granting the concessions and waivers would cause detriment to public health, safety, the physical environment, or any property that is listed in the California Register of Historical Resources. Density Bonus Under the State's Density Bonus Law, developers providing 11 percent very -low income units may request a numerical density bonus of 35 percent from the base density (California Government Code Section 65915 (f)(2)). The General Plan land use designation for the site is District Center, which allows 90 dwelling units per acre and a maximum floor area ratio of 3.0. Based on the site area of 1.41 acres at 90 dwelling units per acre, 127 units are allowed. In exchange for providing 11 percent very -low income units on site, an additional 45 units are permitted through a density bonus. Therefore, the project proposes a total of 171 units with a total floor area ratio (FAR) of 4.2 for the development site. Application of the floor area ratio maximum would physically preclude development of on -site affordable housing units. Table 6: Density Bonus Calculation Density or Bonus Allowed for Project Provided Base Density 127 units (1.41 acres x 90 units/acre 127 Units 35-Percent State Density Bonus 45 units (127 x 0.35) +44 Units Total Units 172 units maximum 171 units proposed 75A-9 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 10 Concessions and Waivers To help make providing on -site affordable units feasible, the State law allows developers constructing 11 percent very -low income units to seek up to two incentives/concessions (California Government Code Section 65915 (d)(2)(B)), and an unlimited number of waivers (California Government Code Section 65915 (e)(1)), which are essentially variances from development standards that would help the project be built. A concession may be a reduction in a site development standard, modification to a zoning code requirement, or a modification to architectural design requirement that results in identifiable cost reductions. A waiver is for a standard that would physically preclude development from being built at the permitted density and with the granted concession/incentives. A development standard is defined in California Government Code Section 65915 as a site or construction condition, including, but not limited to, a height limitation, a setback requirement, FAR, an on -site open space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter or other local condition, law, policy, resolution, or regulation. Table 7: Requested Incentives/Concessions/Waivers TZC and General Requirement Provided Plan Standards Floor Area Ratio 4.2 FAR — Requires Waiver, (FAR) 3.0 - Downtown District Center Cal. Gov't Code Sec. 65915 (e)(1) Sec. 41-2011(a) — The Line Block building type permits a 16 stories — Requires Waiver, Height maximum of 10 stories Cal. Gov't Code Sec. 65915 (e)(1) 1. The common open space shall be designated as a courtyard, or in the front as a forecourt. This area shall be equal to 15% of the lot and shall be open to the sky. 2. Minimum courtyard width of 20'0" when running EW and 15'0" when running NS. Common open space is not Sec. 41-2023(f) — 3. 20'0" wide courts only permit proposed as a courtyard or Open Space architectural projections on two forecourt— Requires opposing sides. Concession 1 of 2, Cal. Gov't 4. Private open space for each Code Sec. 65915 (d)(1) dwelling unit and no less than 50 SF and not less than 60" in each direction. 5. Private open space can be substituted for common open space or common interior space at an equivalent square footage. The 75A-10 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 11 TZC and General Plan Standards Requirement Provided minimum dimension of this space shall be 15'0" in each direction. Max. Ratios of each Story: Level 3 is proposed at 94% — o a. Ground Floor- 100 /o Sec. 41-2023(i) — b. Level 2 — 100 /�o Requires Concession 2 of 2, Massing c. Level 3-5 — 85 /o Cal. Gov't Code Sec. 65915 d. Level 6 + — 85% (d)(1) The property is within a height exempt zone. However, in the TZC downtown zone, the Lined Block building type limits structures to a 10-story maximum, but the building is proposed to be 16-stories (193 feet, 10 inches). A waiver from the maximum number of stories is needed for the project. The six additional stories are needed to make construction of a mixed -income high-rise development financially feasible. A designed four upper story levels are needed to accommodate space for 19 on -site affordable units and 44 density bonus units. Efforts to maintain views of the W.H. Spurgeon Building's clock tower to the north of the site have been made by recessing the building mass at the fourth and fifth levels and providing a publicly accessible deck that will provide views of downtown. In addition, the public parking stalls account for one below -grade and four above -grade levels of the building, adding to the overall height of the development. The application of the 10- story maximum building height standard would physically preclude construction of the mixed - income project. The project's open space is designed as open roof decks rather than courtyards or forecourt, as required by the TZC. Construction of a courtyard or forecourt would substantially increase engineering costs, and the development would need to be completely redesigned. This would reduce the number of units that could be constructed on the site and therefore reduce the number of affordable housing units that would result from the project. The project exceeds the 15 percent of common and private open space requirements in regards to quantity of open space provided as a total of 10,685 square feet of common open space and 7,550 square feet of private decks are provided. The intent of specifying the massing for each level of a building is to maintain the building form of each building type. A maximum of 85 percent total coverage of the third level is permitted and 94 percent coverage is proposed. In order to maximize the number of parking stalls provided, the building footprint needs to span the building site at level three (cover 94 percent of the site). However, the urban form that the Line Block building type strives for through massing is still achieved due to the overall larger scale of the building. In addition, the levels 4 through 16 meet the prescribed massing standards. The overall building form and design is typical of the Line Block building type and typical of buildings found in a downtown urban environment. A reduction in massing at the third level would result in a reduction in public parking and reduce the financial feasibility of redeveloping the site and providing 19 on -site very -low income units. Overall, the mixed -used and mixed -income nature of the development supports the goals of the TZC. 75A-11 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 12 Mixed -Use Building Parking The density bonus law entitles developers to reduced parking standards. Pursuant to California Government Code Section 65915 (p)(1), residential developments providing eleven percent on - site affordable housing units at very -low income levels are entitled to provide on -site parking at the ratio of 1 stall for studio or one -bedroom units, and 2 stalls for two -bedroom units, inclusive of disabled person parking and guest parking. The applicant has elected to exercise the option to provide this parking ratio pursuant to the California Government Code Section (p)(1). Therefore, a total of 196 parking spaces are provided. It is anticipated that employees and patrons for the commercial businesses will utilize the public parking spaces available on site and throughout downtown. Table 8: Mixed -Use Parking Number of Units & Type Required Parking Per Cal. Gov't Code Section 65915(p)(1) Provided Parking 95 Studios 95 space 95 spaces 51 One Bedrooms 51 spaces 51 spaces 25 Two Bedrooms 50 spaces 50 spaces Total 196 spaces 196 spaces It is also important to note that under California Government Code Section 65915 (p)(4) upon request of a developer, residential developments providing 11 percent very -low income units and located within one-half mile of a major transit stop are entitled to a parking requirement of only 0.5 spaces per bedroom. The project is within 0.15 miles of the OCTA bus routes 53/53x stop at Main Street and Fourth Street, route 55 stop at Main Street and First Street, and route 64/64x stop at Main Street and First Street. As such, the project is entitled to an even lower parking ratio than proposed under which a total of 98 parking spaces would be required for the 171-unit development. However, the applicant is providing 196 parking spaces, which would be an excess of 98 spaces if California Government Code Section 65915(p)(4) were exercised. To address concerns regarding the requested parking incentive, the applicant prepared a parking analysis and parking management plan (PMP). The PMP encourages transit ridership by providing transit maps with tenant move -in packets and, upon demand, can provide on -site valet service to maximize use of parking areas and reserve additional residential and commercial parking spaces through long-term agreements with the City for use of nearby parking structures. The parking management plan indicates that, if needed, valet service for on -site vehicle stacking for all uses could create an additional 122 parking spaces on levels P1 through 8, raising the total on -site parking supply for the mixed -used project spaces from 196 to 318. In addition, the PMP indicates that an additional 50 off -site parking spaces could be leased on a long-term basis at on -site or nearby City -owned parking structures. When implemented, this would result in an effective parking ratio of 1.86 parking spaces per residential unit with the on -site valet service, and 2.15 spaces per unit with the additional 50 off -site spaces, which would be equivalent to the 2.15 per unit parking space requirement of the TZC. 75A-12 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 13 The parking study supports the parking ratio of one space for every studio and one bedroom and two spaces for every two -bedroom unit for variety of factors. These include the project's proximity to existing and future mass transit, such as standard bus service, high-capacity/express bus service, the Santa Ana Regional Transportation Center, and the under -construction OC Streetcar; the project's location within a high amenity, mixed -use environment with shopping and major employment centers nearby; and proximity to nearby existing parking facilities, including parking structures, parking lots, and on -street parking. Key Terms in the Density Bonus Agreement The following is a list of key terms agreed upon in the Density Bonus Agreement: • Affordable Units. The project shall have nineteen (19) affordable units which shall be composed of ten (10) studio units, six (6) one -bedroom units, and three (3) two -bedroom units. The units shall be evenly distributed among all levels of the project. The affordable units shall be restricted to use and occupancy by eligible households for a total period of no less than fifty-five (55) years. • The affordable units in the project shall at all times during the term of the agreement be rented to very low-income tenants at 50% Area Median Income. • Affordable Rent Schedule. The affordable rents shall be created in accordance with the Orange County, California Primary Metropolitan Statistical Area ("PMSA") as published by the California Department of Housing and Community Development ("HCD"), adjusted for family size, and shall be updated no less than annually. • Marketing and Resident Selection Plan. Developer shall prepare and obtain City's approval a marketing program and resident selection plan for the leasing of the affordable units at the project prior to occupancy. • Selection of Tenants. The Developer shall give preference in leasing units to households that live and/or work in the City of Santa Ana or who have an active Housing Choice Voucher issued by the Housing Authority of the City of Santa Ana or any other Public Housing Authority. Implementation of the preference will be monitored by staff in the Community Development Agency. • Monitoring. Developer agrees to pay a reasonable fee for the City's obligation to monitor Owner's compliance with the affordability restrictions contained in the Agreement. • Rental Lease Agreement. Developer shall prepare and obtain City's approval of a rental lease agreement consistent with the terms contained in this Density Bonus Agreement. • On -Site Parking Management Plan. Developer has provided a parking management plan attached to the agreement. The City may enforce the provisions of the parking management plan against the Developer at the City's sole discretion. • Payment of Density Bonus Setup Fee. Developer must pay the Density Bonus Setup Fee in the amount of $56,697.12 prior to the issuance of building permits for the project. The Density Bonus Agreement has been signed by the Developer to acknowledge their acceptance of the terms. The agreement is not considered final until the City Council has reviewed and approved the agreement and the agreement is executed by all parties. 75A-13 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 14 California Environmental Quality Act (CEQA) An addendum to a previously certified EIR is prepared when a lead agency is asked to approve modifications to an existing project for which an EIR has already been certified. An addendum evaluates the requested modifications and determines whether subsequent EIR review is required. Since none of the conditions specified in state CEQA Guidelines, section 15162 are present, an addendum to the previously -certified 2010 EIR was prepared for the 3rd and Broadway project. Pursuant to state CEQA Guidelines section 15164(b), an addendum to a previously -certified EIR is not circulated for public review. Pursuant to state CEQA Guidelines section 15164(d), the City Council must consider the addendum together with the TZC's original 2010 EIR before making a decision on the project. Previous CEQA Documentation The 2010 TZC EIR (SCH No. 2006071100) anticipated potential development of approximately 4,075 residential units, 387,000 square feet of retail development, and an additional 15.5 acres of open space within the City. The 2010 EIR considered the environmental impacts related to aesthetics; air quality; biological resources; cultural resources; hazards and hazardous materials; hydrology and water quality; land use; noise; population, housing, and employment; public services; transportation and traffic; utilities and service systems; and climate change. A mitigation monitoring and reporting program, findings of fact, and a statement of overriding consideration were adopted with the 2010 EIR. 2020 3rd and Broadway Addendum The addendum focuses on the potential environmental impacts associated with the project, including the density bonus application and associated concessions and waivers, site plan review applications, variance, tentative parcel map, and disposition and development agreement that might cause a change in the conclusions of the certified 2010 EIR, including changes in circumstances or new information of substantial importance that would substantially change those conclusions. The proposed development required preparation of studies relating to shade and shadow, air quality and greenhouse gas emissions, traffic, parking, noise and vibration, Phase I environmental site assessment, hydrology, a preliminary water quality management plan, and sewer capacity (Attachments to the 2020 Addendum). All studies evaluate the proposed project as compared to the existing entitlements and were reviewed for content and accuracy by the City. In addition, the project is within a Transit Priority Area. Under Senate Bill 743, aesthetic and parking impacts cannot be considered a significant impact within a Transit Priority Area. The addendum concludes no new or substantially greater impacts would occur with implementation of the proposed development when compared to those identified in the 2010 EIR and finds that no supplemental or subsequent EIR is required for the proposed development. Therefore, the 2010 EIR's MMRP will continue to mitigate or lessen any impacts already identified by the TZC's original 2010 EIR. 75A-14 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 15 Public Noticing Table 9: Public Notification and Community Outreach Public Notification and Community Outreach Required On October 8, 2019 at 6:00 p.m. a community meeting was held at 100 Measures South Main Street in accordance with the provisions of the City's Sunshine Ordinance. Invitations/notices were mailed to property owners and occupants/tenants within a 500-foot radius from the project site. Approximately 13 members of the public attended, as well as 3 City staff. The applicant provided all the required information to the City after the meeting. Details from the community meeting were posted to the project's webpage at https://www.santa-ana.org//pb/planning= division/major-planningrojects-and-monthly-development-project- re orts/3rd-and-0. On October 9, 2020 notification by mail was mailed to all property owners, occupants, and other interested parties within 500 feet of the project site in accordance with SAMC requirements and a newspaper posting was published in the Orange County Register in accordance with SAMC requirements. On October 6 and 13, 2020 pursuant to Government Code Section 52201 and 53083 a public hearing notice was published in the Orange County Register and the summary and subsidy report was made available online before the scheduled Public Hearing at htt s://www.santa-ana.or /cd/economic-develo ment-subsid -re orts. Additional Over the past three years, the applicant has conducted one-on-one Measures informational meetings with over 20 businesses or interested parties in and around downtown, along with outreach with the Chamber of Commerce and Downtown, Inc. FISCAL IMPACT The following estimates of potential economic impact were developed by the City's consultant, Kosmont Companies. Table 10: Potential General Fund Revenue from Proposed Project Summary of Annual Potential Revenue from Project Property Tax (Secured & Unsecured) $210,000 Property Tax In -Lieu of VLF $130,000 Sales & Use Tax (On-site/Direct) $57,000 Sales & Use Tax (Off-Site/Indirect)On-Site $25,000 Transient Occupancy Tax ($90 RevPar) $270,000 Utility User Tax & Other Tax $45,000 Annual General Fund Revenues (ROUNDED): $737,000 75A-15 ER No. 2019-85/DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/DDA October 20, 2020 Page 16 Table 11: Potential Economic Benefits of Construction for 3rd and Broadway Employment Labor Income Direct On -site 475 $49,000,000 Indirect 180 $14,000,000 Induced 200 $13,000,000 Total Countywide 855 $76,000,000 Estimated City Capture 510 $53,000,000 Submitted By: Steven A. Mendoza, Executive Director — Community Development Agency Minh Thai, Executive Director — Planning and Building Agency Exhibits: 1. Resolution Approving 2020 Addendum 2. Resolution Approving Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, and Site Plan Review 2020-02 3. Resolution Approving Disposition and Development Agreement 4. Planning Commission Staff Report 5. 52201 and 53083 Summary and Economic Subsidy Report 6. Development and Disposition Agreement 7. Density Bonus Agreement 8. Second Amendment to Second ENA 75A-16 RESOLUTION NO. 2020-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AND ADOPTING AN ADDENDUM TO THE ENVIRONMENTAL IMPACT REPORT FOR THE TRANSIT ZONING CODE PROJECT (SCH NO. 2006071100) FOR SITE PLAN REVIEW NO. 2020-01, SITE PLAN REVIEW NO. 2020-02, DENSITY BONUS AGREEMENT NO. 2020-01 AND DISPOSITION AND DEVELOPMENT AGREEMENT AND ADOPTION OF A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE THIRD AND BROADWAY MIXED - USE PROJECT LOCATED AT 201 WEST THIRD STREET WHEREAS, Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Variance No. 2020-05, Tentative Parcel Map No. 2020-02, and a Disposition and Development Agreement to allow the demolition of an existing public parking structure and construction of a new mixed -use 171-unit residential and 13,419 square foot commercial development and 75-room hotel at 201 West Third Street; and WHEREAS, the subject Property contains 1.41 acres and is currently developed with a City -owned public parking structure; and WHEREAS, the Transit Zoning Code was adopted in 2010 as a result of interest in developing transit -oriented mixed -use residential and commercial projects in its project area. The Transit Zoning Code was amended in 2019 to modernize and refine development standards to further these interests. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including mixed -use residential communities, live/work units, hotels, and offices; and WHEREAS, the City Council of the City of Santa Ana certified the Environmental Impact Report (SCH No. 2006071100) and adopted a mitigation monitoring and reporting program for the Transit Zoning Code, which allows a mixture of residential, commercial, and limited industrial land uses; and WHEREAS, the entitlements sought for the proposed mixed -use development project include a Density Bonus Agreement application, two Site Plan Review applications, a Variance application, a Tentative Parcel Map application, and a Disposition and Development Agreement; and WHEREAS, in 2010, the City Council certified the Final Environmental Impact Report ("2010 EIR") for the Transit Zoning Code Project ("Originally Approved Plan"), which analyzed the potentially significant environmental impacts of a mixed -use plan area consisting of new residential, commercial, and industrial development; and WHEREAS, pursuant to the 2010 EIR, the subject site may be developed with a mixed -use development consisting of residential and commercial land uses; and WHEREAS, when compared against the Originally Approved Plan, the proposed mixed -use development will not result in any new or intensified significant impacts; and 55394.00053\32005762.1 7 5A-1 7 WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code section 21000 et seq.) ("CEQA") and the State CEQA Guidelines (14 Cal. Code Regs. 15000 et seq.), the City is the Lead Agency for the proposed development; and WHEREAS, pursuant to CEQA, when taking subsequent discretionary actions in furtherance of a project for which an EIR has already been certified, the Lead Agency is prohibited from requiring a subsequent or supplemental EIR unless at least one of the circumstances identified in Public Resources Code section 21166 or State CEQA Guidelines section 15162 are present; and WHEREAS, City staff has evaluated the proposed project and considered whether, in light of the impacts associated with its development, any supplemental or subsequent environmental review is required pursuant to Public Resources Code section 21166 or State CEQA Guidelines section 15162; and WHEREAS, the analysis contained in the Third & Broadway project's EIR Addendum ("2020 Addendum") concludes that none of the circumstances described in Public Resources Code section 21166 or State CEQA Guidelines section 15162 have occurred, and thus no supplemental or subsequent EIR is required; and WHEREAS, the proposed Project is within a transit priority area (TPA) as defined by Public Resources Code (PRC) Section 21099(a)(7). A TPA is an area within one-half mile of a major transit stop that is existing (or planned under certain conditions). A major transit stop includes the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods (PRC § 21064.3). The Project site is within 0.15 miles of the intersection of Bus Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west via 1st Street). Under SB 743, aesthetic and parking impacts cannot be considered a significant impact within TPA's; and WHEREAS, on September 28, 2020 at a duly noticed public hearing, the Planning Commission recommended City Council adoption of the 2020 Addendum; and WHEREAS, on October 20, 2020 at a duly noticed public hearing, the City Council considered the 2020 Addendum for Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Density Bonus Agreement No. 2020-01 and Disposition and Development Agreement; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS: SECTION 1. The above recitals are true and correct and incorporated herein by reference. SECTION 2. State CEQA Guidelines section 15164 requires lead agencies to prepare an addendum to a previously certified EIR if some changes or additions to the project are necessary, but none of the conditions requiring preparation of a subsequent EIR are present. The City Council has reviewed and considered the 2010 EIR and the 2020 Addendum, and finds that these documents taken together contain a complete and accurate reporting of all of the potential environmental impacts associated with the proposed development. The City Council further finds that the 2020 Addendum has 55394.00053\32005762.1 7 5A-1 8 been completed in compliance with CEQA and the State CEQA Guidelines. The City Council further finds and determines that the Addendum reflects the City's independent judgment. SECTION 3. Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Addendum, the City Council finds that an addendum is the appropriate document for disclosing the changes to the subject property, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: (a) The proposed development does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. (b) There is not a substantial change with respect to the circumstances under which the proposed development will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. (c) New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. SECTION 4. The City Council hereby finds that mitigation measures identified in the 2010 EIR remain applicable to the Transit Zoning Code. These findings are laid out more specifically in the Mitigation Monitoring and Reporting Program ("MMRP") attached hereto as Exhibit A. The City Council therefore hereby adopts those mitigation measures identified as remaining applicable to the Transit Zoning Code, through the MMRP attached hereto and incorporated herein as Exhibit A. Applicant shall be solely responsible for the implementation of all mitigation measures in the MMRP applicable to any aspect of the proposed mixed -use development project. SECTION 5. The City Council hereby approves and adopts the 2020 Third and Broadway Addendum related to Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Density Bonus Agreement No. 2020-01, attached hereto and incorporated herein as Exhibit B. SECTION 6. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, 55394.00053\32005762.1 7 5A-1 9 authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. SECTION 7. The City Council directs staff to prepare, execute and file a CEQA Notice of Determination with the Orange County Clerk's Office within five working days of the City Council's approval of Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Density Bonus Agreement No. 2020-01 and Disposition and Development Agreement for the Third and Broadway Mixed -Use Development Project. SECTION 8. The 2010 El and the 2020 Addendum, and any other documents and materials that constitute the record of proceedings upon which these findings have been based are on file, are incorporated herein by reference and are available for public review at Santa Ana City Hall, Planning and Building Agency, M20, 20 Civic Center Plaza, Santa Ana, California 92701. The custodian of these records is Daisy Gomez, City Clerk for the City. SECTION 9. This resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this resolution. ADOPTED this day of 12020. Miguel A. Pulido Mayor APPROVED AS TO FORM: 55394.00053\32005762.1 7 5A-2 0 Sonia R. Carvalho City Attorney By: Ryan b, Ho ibe Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 55394.00053\32005762.1 7 5A-21 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 55394.00053\32005762.1 7 5A-2 2 EXHIBIT A MITIGATION MONITORING AND REPORTING PROGRAM The Mitigation Monitoring and Reporting Program (MMRP) is available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and- monthly-development-project-reports/3rd-and-0 Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana, CA 92701 55394.00053\32005762.1 7 5A-2 3 EXHIBIT B THIRD AND BROADWAY EIR ADDENDUM The Third and Broadway Project EIR Addendum and Technical Appendices are available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and- monthly-development-protect-reports/3rd-and-0 Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana, CA 92701 55394.00053\32005762.1 7 5A-24 RESOLUTION NO. 2020-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING DENSITY BONUS AGREEMENT NO. 2020-01, SITE PLAN REVIEW NO. 2020-01, AND SITE PLAN REVIEW NO. 2020-02 AS CONDITIONED FOR A NEW MIXED -USE AND HOTEL DEVELOPMENT LOCATED AT 201 WEST THIRD STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, and Site Plan Review No. 2020- 02, as conditioned to allow the construction of a new mixed -use development consisting of 171 residential units, 13,419 square foot commercial development and a 75-room hotel at 201 West Third Street. B. The Transit Zoning Code was adopted in 2010 as a result of interest in developing transit -oriented mixed -use residential and commercial projects in its project area. The Transit Zoning Code was amended in 2019 to modernize and refine development standards to further these interests. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including mixed -use residential communities, live/work units, hotels, and offices. C. The California Density Bonus Law (California Government Code Section 65915 et seq.) allows developers to seek increases in base density for providing on -site housing units in exchange for providing affordable units on site. To help make constructing on -site affordable units feasible, the law allows developers to seek incentives/concessions or waivers that would help the project be built without significant burden and without detriment to public health. D. On September 28, 2020, the Planning Commission of the City of Santa Ana held a duly noticed public hearing regarding Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01 and Site Plan Review No. 2020-02 at that time considered all testimony, written and oral and recommended City Council approval of the entitlements. E. On October 20, 2020, the City Council of the City of Santa Ana held a duly noticed public hearing regarding Density Bonus Agreement No. 2020-01, Resolution No. 2020-xx 75A-25 Page 1 of 18 Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Disposition and Development Agreement at that time considered all testimony, written and oral. F. Sections 41-2007 and 41-593.5 of the Santa Ana Municipal Code (SAMC) requires a review by the Planning Commission and City Council of all plans for developments of over four stories within the Transit Zoning Code (Specific Development No. 84) to ensure the project is in conformity with the overlay zone plan. G. The zoning designation for the subject property is Specific Development No. 84. Downtown sub -zone. H. The City Council determines pursuant to SAMC Sections 41-2007 and 41- 593.5, that the mixed -use and hotel project is in compliance with all applicable development standards outlined within the Specific Development (SD No. 84/Transit Zoning Code), with the exception of required on -site residential parking, maximum stories, open space and massing which, pursuant to the California Government Code sections 65915 through 65918, may be reduced through approval of the requested Density Bonus Agreement application and off-street parking subject to approval of Variance No. 2020-02. The City Council determine that the following findings, which must be established in order to grant this Density Bonus Agreement with deviations pursuant to SAMC Section 41-1607, have been established for Density Bonus Agreement No. 2020-01 to allow construction of the proposed project: That the proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. The proposed development will provide 152 market -rate rental units and 19 very -low income affordable units, contributing toward the City's rental housing stock to serve the needs of diverse and underserved populations. 10 studios, 6 one -bedrooms and 3 two -bedrooms very -low income units will be evenly dispersed throughout the development. The area in which the project is proposed, the Transit Zoning Code plan area, currently contains several entitled or constructed affordable and market -rate residential communities. The construction of this project will contribute toward an economically and demographically balanced community by providing housing for different demographic and income levels in an area rich with employment Resolution No. 2020-xx 75A-26 Page 2 of 18 opportunities, commercial development, market -rate housing and close to many public transportation options such as the under -construction OC Streetcar, bus routes and the Santa Ana Regional Transportation Center. 2. That the development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. The project site is located in an area already identified in both the City's Zoning Code (the Transit Zoning Code) and General Plan (the Land Use and Housing elements) for new residential communities. The application includes a request for a 35-percent density bonus in exchange for providing eleven percent very -low income units on -site (19 units). Under the State's Density Bonus Law, developers providing eleven percent very -low income units may request a numerical density bonus of 35 percent from the base density (California Government Code Section 65915 (f)(2)). The General Plan land use designation for Downtown is District Center which allows 90 dwelling units per acre and maximum floor area ratio (FAR) of 3.0. Based on the site area of 1.41 acres at 90 dwelling units per acre 127 units are allowed. In exchange for providing eleven percent very -low income units on -site an additional 45 units are permitted through a density bonus. Therefore, the project proposes a total of 171 units with a total FAR of 4.2 for the development site. Application of the floor area ratio maximum would physically preclude development of on -site affordable housing units. Furthermore, California Government Code Section 65915 (f)(5) granting a density bonus shall not require a General Plan Amendment. With approval of concessions and waivers the project is consistent with the underlying zoning development standards and General Plan. Additionally, the project supports several goals and policies within the General Plan land use element. 3. That the deviations are necessary to make it economically feasible for the Applicant to utilize a density bonus authorized for the development pursuant to section 41-1603. The proposed project requires waivers, two incentives/concessions, and for a reduction in required on - site (off-street) parking. The deviations are described as follow: Resolution No. 2020-xx 75A-27 Page 3 of 18 (a) Waiver from the General Plan Land Use Element, Downtown District Center maximum FAR of 3.0. The FAR for the entire development site is 4.2. Capping the FAR at 3.0 would physically preclude development of the project and on -site affordable housing units [Cal. Gov't Code Sec. 65915 (e)(1)]. Limiting the FAR may preclude additional stories to accommodate the affordable units and density bonus units which make the project financially feasible for the developer. (b) Waiver from Santa Ana Municipal Code Sec. 41-2011(a) — Height. The Line Block Building Type sets a maximum height of 10-stories while 16 stories are proposed. The additional stories are needed to provide affordable housing units on -site and to make the construction of a high-rise development financially feasible. In addition, the requirement to provide 211 public parking spaces on site adds an additional five stories to the overall development [Cal. Gov't Code Sec. 65915 (e)(1)]. (c) Concession 1 from Santa Ana Municipal Code Sec. 41- 2023(f) Open Space, the project's open space is designed as open roof decks rather than courtyards or forecourt. Construction of a courtyard or forecourt would substantially increase engineering costs and the development would need to be redesigned completely reducing the number of units that could be constructed on the site therefore, reducing the number of onsite affordable housing units that would result from the project [Cal. Gov't Code Sec. 65915 (d)(1)]. (d) Concession 2 from Santa Ana Municipal Code Sec. 41- 2023(i) Massing a reduction in massing at the third level would result in a reduction in public parking or redesigning and engineering the project which would reduce the financial feasibility of redeveloping the site and providing 19 onsite very -low income units [Cal. Gov't Code Sec. 65915 (d)(1)]. (e) Parking: Constructing 2.0 parking spaces per residential unit and 0.15 guest parking spaces per residential unit on the project site would require the developer to construct additional levels of parking either above- or below -grade, resulting in increased construction costs and/or a loss of an entire level of residential units. The City has identified the Transit Zoning Code area for high -intensity, mixed - use, transit -oriented development in order to reduce Resolution No. 2020-xx 75A-28 Page 4 of 18 demands for parking and traffic impacts. Pursuant to California Government Code Section 65915 (p)(1) residential developments providing eleven percent on - site affordable housing units at very -low income levels are entitled to provide on -site parking at the ratio of 1 stall for studio or one -bedroom units, and 2 stalls for two - bedroom units, inclusive of handicapped and guest parking. To address the parking reduction requested by the applicant pursuant to State Housing Law, the Applicant prepared a parking study and parking management plan (PMP). The PMP adequately outlines measurable means to provide additional parking through additional onsite valet parking, offsite parking, or a combination thereof, raising the effective parking ratios to a minimum of 2.15 parking spaces per residential unit if fully implemented. Section 2. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 3. In accordance with the California Environmental Quality Act (CEQA), the City Council of the City of Santa Ana has, as a result of its consideration of the record as a whole and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, Environmental Review No. 2019-85 meets all the requirements of CEQA: Resolution No. 2020-xx 75A-29 Page 5 of 18 Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Third & Broadway Addendum, the City Council finds that an addendum is the appropriate document for disclosing the changes to the subject properties, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: A. The project does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. B. There is not a substantial change with respect to the circumstances under which the project will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. C. New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. Section 4. The City Council of the City of Santa Ana, after conducting the public hearing, hereby approves Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 as conditioned in Exhibit A, attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for City Council Action dated October 20, 2020, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. ***Signatures on following page*** ADOPTED this day of 12020. Resolution No. 2020-xx 75A-30 Page 6 of 18 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By:.,� Ryan ®0., Hodge Assistant City Attorney /d\'1�91 I0107�91 Councilmembers Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2020-xx 75A-31 Page 7 of 18 EXHIBIT A Conditions for Approval for Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Density Bonus Agreement No. 2020-01 Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Density Bonus Agreement No. 2020-01 are approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below Prior to exercising the rights conferred by this site plan review. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the site plan review. A. Planning Division All proposed site improvements must conform to the Development Project Review approval of DP No. 2019-32 and the staff report exhibits. 2. Any amendment to this site plan review, including modifications to approved materials, finishes, architecture, site plan, landscaping, unit count, mix, and square footages must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the site plan review must be amended. 3. A residential property manager shall be on site at all times that the project is occupied and the developer and on -site management shall at all times maintain a 24-hour emergency contact and contact information on file with the City. 4. The Project shall implement the Parking Management Plan dated September 9, 2020. 5. The Project shall include a publicly -accessible amenity area available to the public on a semi -regular basis, upon agreement by the public and Applicant, but in no instances less than four times per year for community -serving purposes. Any revisions to the proposed projects to include said amenity area, or any required modifications to accommodate said amenity area, shall be reviewed for substantial conformance during Building Division plan check. 6. All mechanical equipment shall be screened from view from public and roof deck amenity areas. Resolution No. 2020-xx 75A-32 Page 8 of 18 7. Prior to issuance of any building permits, the Applicant shall submit a detailed rooftop plan to the Planning Division for review and approval demonstrating that the unoccupied lower level rooftops, visible from the building levels above, incorporate artificial green roofs and water infiltration planters as shown on the DP No. 2019-32 plans. 8. Prior to the issuance of any building permits, the Applicant shall submit a final detailed amenity plan to the Planning Division for review and approval. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for amenity decks and plaza areas as well as an installation plan. The exact specifications for these items are subject to the review and approval by the Planning Division. 9. Prior to issuance of building permits, the Applicant shall submit a construction schedule and staging plan to the Planning Division for review and approval. The plan shall include perimeter construction signage with a contact phone number, construction hours, staging areas, parking and site security/screening during project construction. 10. Prior to installation of landscaping, the Applicant shall submit photos and specifications of all trees to be installed on the project site to the Planning Division review and approval. Specifications shall include, at a minimum, the species, box size (24 inches minimum), brown trunk height (10-foot minimum), and name and location of the supplier. 11. After Project occupancy, landscaping and hardscape materials must be maintained as shown on the approved landscape plans. 12. A Resident Storage Plan shall be provided for the Project prior to occupancy. Storage shall be available at no cost to the residents. 13. Prior to Certificate of Occupancy issuance, public art shall be installed on the Project site at a value of one-half of one percent (0.5%) of the total valuation of both buildings. The art shall be installed on the north, east, west and south elevations of the mixed -use project and on the south elevation of the hotel project in the areas depicted on the DP No. 2019-32 plans. The selection, design, and installation of the art shall be subject to review and approval by the Planning and Building Agency, the Community Development Agency, and the Applicant. 14. Prior to Certificate of Occupancy issuance, a Property Maintenance Agreement must be recorded against the property. The agreement will be subject to review and applicability by the Planning and Building Agency, the Community Development Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Developer (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) Resolution No. 2020-xx 75A-33 Page 9 of 18 shall execute a Maintenance Agreement with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The Maintenance Agreement shall contain covenants, conditions and restrictions relating to the following: (a) Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.); (b) Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses, (c) Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; (d) Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); (e) If Developer and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the Maintenance Agreement and both shall be jointly and severally liable for compliance with its terms. (f) The Maintenance Agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties, obligations and responsibilities set forth under the Maintenance Agreement. (g) The Maintenance Agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any unreimbursed costs and/or Resolution No. 2020-xx 75A-34 Page 10 of 18 expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City. (h) The execution and recordation of the Maintenance Agreement shall be a condition precedent to the issuance of final approval for any construction permit related to this entitlement. Resolution No. 2020-xx 75A-35 Page 11 of 18 Exhibit 3 RESOLUTION NO. 2020-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND CARIBOU INDUSTRIES, INC. FOR THE PROPERTY GENERALLY LOCATED AT 201 WEST 3RD STREET, SANTA ANA, CALIFORNIA (APN 398-264-13) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City owns that certain real property generally located at 201 West Third Street, Santa Ana, California 92701, and as more particularly described in the legal description(s) attached to this Resolution as Exhibit "A" of the "Disposition and Development Agreement' attached hereto as Exhibit "A" and depicted as APN 398-264- 13 (the "Property"). B. On September 16, 2014, the City Council unanimously directed the Planning and Building Agency to release a Request for Qualifications for the Third and Broadway Development Project ("RFQ"). A hotel was one of the components the City Council desired and the request for a hotel was listed in the RFQ. C. The City received five proposals, but only one proposal, by Caribou Industries, Inc., included a hotel component. D. The Development and Transportation Council Committee was presented the Proposals, and directed staff to contact all of the development firms that had submitted proposals and provide them a second opportunity to submit new proposals that would include a hotel component. E. Four of the development firms resubmitted proposals. Only one of the four, Caribou Industries, Inc. included a hotel component. F. On April 27, 2017, City and Developer entered into an Exclusive Negotiating Agreement to discuss proposed terms for the disposition of the City Property and development of the proposed mixed -use hotel and commercial/retail project on the City Property and the Developer Property. G. On July 5, 2017, the Parties entered into a First Amendment to the Exclusive Negotiation Agreement, and on January 11, 2019, the Parties entered in to a Second Amended and restated Exclusive Negotiation Agreement (No. A-2018-002) which expired on its own terms on April 28, 2019. tbA 6 H On May 7, 2019, the Parties entered into a Second Exclusive Negotiation Agreement (No. A-2019-062) which was effective until May 7, 2020. I. On April 22, 2020, the Parties entered into the First Amendment to the Second Exclusive Negotiation Agreement, which is effective until November 6, 2020. J. The Developer proposes the development of the Property with a Mixed Use Project including apartments, commercial (including retail and food/beverage establishments), a seventy-five (75) room Hotel Project and a Parking Structure, which will contain 444 total parking spaces including 211 public parking spaces ("Project'). K. In compliance with Government Code Sections 52201 and 53083, the City has prepared and made available to the public, and City Council has reviewed the Summary and Subsidy Report detailing the sale of the Property as furtherance of an economic opportunity for the City. L. Pursuant to Government Code Section 52200.2 the sale of this Property is an Economic Opportunity for the City, for the following reasons: 1. The sale of the Property will result in an increase of at least 15 percent of total property tax resulting from the Project at full implementation when compared to the year prior to the Property being acquired by the City. Government Code Section 52200.2(b). 2. The Project will result in the creation of nineteen affordable housing units. Government Code Section 52200.2(c) 3. The Project is a transit priority project (see Public Resources Code Section 21155(b)) in compliance with Government Code Section 522002(e): (a) The Projects contains 63% residential use based on total building square footage and has a floor area ratio of 4.2. (b) The Project has a minimum density of 121 dwelling units per acre. (c) the Project is within a transit priority area as defined by Public Resources Code (PRC) Section 21099(a)(7). A transit priority area is an area within one-half mile of a major transit stop that is existing (or planned under certain conditions). A major transit stop includes the intersection of two or more major bus routes with a frequency service interval of 15 minutes or less during the morning and afternoon peak commute periods (PRC §21064.3). The Project site is within 0.15 miles of the intersection of Bus Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west via 1st Street). t bA-i / M. On September 28, 2020, the Planning Commission held a duly noticed public hearing, and by a vote of 6:0 (Commissioner Phan abstained) voted to: 1. Adopt a resolution approving an addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH NO. 2006071100) and adoption of a mitigation monitoring and reporting program for Variance No. 2020-05 and Tentative Parcel Map No. 2020-02. 2. Adopt a resolution approving Variance No. 2020-05 for the hotel off- street parking requirements as conditioned. 3. Adopt a resolution approving Tentative Parcel Map No. 2020-02 as conditioned. 4. Recommend that the City Council: a. Adopt a resolution approving an addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH NO. 2006071100) and adoption of a mitigation monitoring and reporting program for Density Bonus Agreement Application No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, and the Disposition and Development Agreement. b. Adopt a resolution approving Density Bonus Agreement Application No. 2020-01 with concessions and waivers, Site Plan Review No. 2020-01 for a mixed -use development and Site Plan Review No. 2020- 02 for a hotel as conditioned. N. On October 20, 2020 the City Council held a duly noticed public hearing, and at that time considered all testimony, written and oral. O. The proposed Project and Parking Structure will result in the redevelopment of underutilized land and aging structures, development of apartments and hotel rooms to accommodate a demand in Downtown Santa Ana and to the nearby Orange County Courthouse facility, increased employment opportunities within the City and additional property taxes, sales taxes and transient occupancy taxes produced from the Project. P. The City Council finds and determines that the Disposition and Development Agreement (DDA) is in the best interest of the City and the community. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Santa Ana hereby finds, determines and declares as follows that: Section 1. The recitals are true and correct and are incorporated into this Resolution by this reference. t bA-ib Section 2. CEQA Compliance. In accordance with the California Environmental Quality Act (CEQA), the City Council of the City of Santa Ana has, as a result of its consideration of the record as a whole and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, Environmental Review No. 2019-85 meets all the requirements of CEQA. Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Third & Broadway Addendum, the City Council finds that an addendum is the appropriate document for disclosing the changes to the subject properties, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred. because: A. The project does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. B. There is not a substantial change with respect to the circumstances under which the project will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. C. New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. Section 3. Approval of DDA. The City Council of the City of Santa Ana approves the DDA, in substantially the form attached to this Resolution as Exhibit "A," and authorizes the City Manager, acting on behalf of the City Council, to sign and enter into the DDA and perform the obligations of the City Council pursuant to the DDA. Section 4. The applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the applicant of any Action brought and City shall cooperate with applicant in the defense of the Action. Section 5. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council declares that the City Council would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution. Section 6. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of Council shall attest to and certify the vote adopting this Resolution. t bA-40 ADOPTED this day of , 2020. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Ryan O. H'odge Assistant City Attorney AYES NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Daisy Gomez, Clerk of the Council do hereby attest to and certify the attached Resolution No. 2020-OXX to be the original resolution adopted by the City Council of the City of Santa Ana on March _, 2020. Date Daisy Gomez Clerk of the Council City of Santa Ana t bA-461 EXHIBIT A DISPOSITION AND DEVELOPMENT AGREEMENT [Attached behind this cover page] 7U-42 EXHIBIT 4 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: SEPTEMBER 28, 2020 TITLE: PUBLIC HEARING — ENVIRONMENTAL REVIEW NO. 2019-85 FOR DENSITY BONUS AGREEMENT APPLICATION NO. 2020-01, SITE PLAN REVIEW NO. 2020-01, SITE PLAN REVIEW NO.2020-02, VARIANCE NO. 2020-05, AND TENTATIVE PARCEL MAP NO. 2020- 02 TO ALLOW CONSTRUCTION OF A MIXED -USE DEVELOPMENT AND HOTEL AT 201 WEST THIRD STREET Prepared by Selena Kelaher, AICP M1 Executive Director RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Planning Manager 1. Adopt a resolution approving an addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH NO. 2006071100) and adoption of a mitigation monitoring and reporting program for Variance No. 2020-05 and Tentative Parcel Map No. 2020-02. 2. Adopt a resolution approving Variance No. 2020-05 for the hotel off-street parking requirements as conditioned. 3. Adopt a resolution approving Tentative Parcel Map No. 2020-02 as conditioned. 4. Recommend that the City Council: a. Adopt a resolution approving an addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH NO. 2006071100) and adoption of a mitigation monitoring and reporting program for Density Bonus Agreement Application No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, and the Disposition and Development Agreement. b. Adopt a resolution approving Density Bonus Agreement Application No. 2020-01 with concessions and waivers, Site Plan Review No. 2020-01 for a mixed -use development and Site Plan Review No. 2020-02 for a hotel as conditioned. Executive Summary Mike Harrah, representing Caribou Industries, is requesting approval of multiple entitlements to facilitate construction of the Third & Broadway mixed -use development, consisting of two separate buildings, 171 residential units, 13,419 square feet of commercial space, and a 75-room hotel at 201 West Third Street. Specifically, the applicant 2upsting approval of a density bonus agreement DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 2 (DBA), two site plan review (SPR) applications, a variance, and a tentative parcel map (TPM). As proposed, the development will include 19 very -low income units on site and requires approval of a density bonus agreement memorializing the density bonus, parking reductions, two concessions, and waivers from the Transit Zoning Code's (TZC) development standards. A variance application is also being requested to utilize the Santa Ana Municipal Code (SAMC) Section 41-1344 standards for hotel off-street parking and to allow deviations from the off-street parking access requirement. Lastly, a tentative parcel map is proposed to create two development sites and establish airspace to allow for separate interest and ownership of public parking spaces and to provide vehicular and pedestrian access to a private street through a public access easement. Redevelopment of this site commenced in 2014, when the City initiated the process to embark upon a Public/Private Partnership to replace a dilapidated parking structure that divides Downtown Santa Ana with a development that benefitted the City. Staff is recommending approval of the applicant's request due to the project's compliance with the intent of the TZC to promote a pedestrian - oriented environment with a mix of land uses, redevelopment of underutilized land and an aging parking structure, increased employment opportunities within the City, additional property taxes, sales taxes, hotel visitor's tax revenue, the production of on -site affordable housing units, and reconstruction of a roadway that will help reconnect portions of Downtown. The Planning Commission is the final approving body of the Tentative Parcel Map and Variance applications and would need to approve the addendum to the Environmental Impact Report (EIR) for the said actions. The recommendations of the Planning Commission on the addendum to the TZC EIR, Density Bonus Agreement (DBA), and Site Plan Review (SPR) applications will be forwarded to City Council for review. Separately, the City Council will be considering a Disposition and Development Agreement (DDA) for the sale the property for the City -owned parking structure. Table 1: Project and Location Information Project Address 201 West Third Street Nearest Intersection Third Street and Broadway General Plan Designation District Center (DC) Zoning Designation Transit Zoning Code (Specific Development No. 84), Downtown sub - zone Surrounding Land Uses (Exhibit 2) Commercial North Commercial East Commercial and Parking and Residential (South) Commercial West Site Size 1.41 acres combined Parcel 1: 0.89 acres; Parcel 2: 0.52 acres Existing Site Development 3-level public parking structure with 440 spaces Use Permissions Mixed -use projects permitted by Section 41-2006 and Section 41-2007 of the SAMC. Code Sections Affected Uses DBA required pursuant to SAMC Sec. 41- 1600; SPR required pursuant to SAMC Sec. 41-2007; VAR required pursuant to SAMC Sec. 41-632; TPM required pursuant to SAMC Article V. Development Standards Transit Zoning Code, SAMC Sec. 41-2011, 41-2022 and 41-2023 75A-44 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 3 Project Description The project proposes demolition of the City -owned public parking structure at 201 West Third Street and construction of a mixed -use development and hotel on two sites (Exhibits 3 through 9). In addition, Sycamore Street would be reconstructed between Third and Fourth Streets. A full description of each building's conformance to development standards is provided in Exhibit 10 to this staff report. Table 2: Project Summary Units/Rooms 171 units 75 rooms Building Square 197,726 SF _ 63,069 SF Foots a SF) Unit Mix/Room 95 studios 66 standard rooms 51 one -bedrooms 9 suites _ 25 two -bedrooms Unit SF 547 to 722 SF one -bedrooms 418 to 527 SF standard rooms 625 to 968 SF one -bedrooms 855 SF suites 1,002 to 1,637 two-bedrooms/penthouse Commercial SF 13,419 SF 520 to 3,692 SF units N/A Hei ht & Stories 16 stories, 193'-10" 10-stories Parking 196 spaces _ 83 spaces 1 space/1 bedroom and 2 spaces/2 bedroom 1 space per room + 1 space per 10 rooms Open Space/ 181 floor: 731 SF lobby and 727 SF lobby 15t floor: 4,046 SF lobby Amenities 31d floor: 1,184 SF public outdoor deck 3'" floor: 734 sf public outdoor area 4th floor: 731 SF fitness room, 730 SF outdoor deck 4th 6th 8th floors: 287 SF guest terrace 5th floor: 733 SF event space, 3,901 outdoor deck 5th 9th floors: 287 SF amenity space 161h floor: 2,925 SF rooftop pool deck 711 floor: 287 SF meeting room 10th floor: 3,722 SF seating area, 853 SF meeting room and 287 SF terrace Parking A total of 490 parking spaces will be provided for the entire development: 211 public parking spaces, 196 residential parking spaces, 83 hotel parking spaces (41 standard spaces and 42 mechanical stacker (lift) spaces). Vehicular access to the public, residential, reserved hotel valet parking, and mechanical stackers (lifts) will be from a City alley immediately north of the site between Third and Fourth streets. Pedestrian access to and from the parking structure is provided from stairs and an elevator that lead to a lobby that is accessible from Sycamore Street. A hotel valet parking drop-off zone will be on Sycamore Street immediately adjacent to the hotel lobby. One subterranean level of parking below Sycamore Street will span the entire development site, and eight levels of above -grade parking will be provided. The lower levels of the parking structure (Levels P1 through 5) are reserved for 211 public parking spaces and 37 hotel valet parking spaces. The upper levels of the parking structure (Levels 5 through 8, 196 spaces total) are reserved for the residential development. A total of 83 hotel parking spaces will be provided through a combination of 42 parking lifts, 4 ADA parking spaces, and the 37 reserved valet parking spaces within the adjacent parking structure (Levels P1, 4 and 5). 75A-45 DBA No. 2020-01/SPR No. 2020-01/SPR No Third & Broadway Mixed -Use Development September 28, 2020 Page 4 Architecture & Amenities 2020-02NAR No. 2020-05/TPM No. 2020-02 The architectural style of the development is California Contemporary, which is one of the six architectural styles permitted by the TZC. The mixed -use building has been designed as three distinct masses, with an open roof deck at the fourth and fifth levels to provide views of the W.H. Spurgeon Building's clock tower to the north. The three recessed and projecting volumes have separate architectural elements to create the appearance of multiple masses ratherthan one single structure. The corner of Broadway and Third Street features a public plaza that will include a statement evergreen tree. The building's ground level details, such as tan masonry brick street walls and recessed retail entrances, will link the project to the existing environment and is similar to the buildings that characterize Downtown Santa Ana. The middle building mass is comprised mainly of the parking structure, which will be screened with angled perforated metal panels with a brass finish. The upper portion of the building contains the residential units with floor -to -ceiling glass windows and balconies that span each level. The portions of the lower level roofs visible from above will incorporate artificial green roofs and water infiltration planters. The hotel is a contemporary building designed generally as a single mass. The building will also feature a 4,046-square foot ground -level lobby, 300-square foot meeting space on the seventh floor, 853-square foot meeting room on the tenth floor, 300-square foot amenity rooms, outdoor terraces and balconies, and a roof deck with a kitchen and outdoor seating that will overlook Downtown Santa Ana. It is proposed that the rooftop will be accessible to the public and provide food and beverage service. The exterior of the building includes high quality material such a white marble with contrasting grey metal panels and bronze window frames that will create a visual icon within Downtown Santa Ana. The upper levels will be recessed from the base of the building creating a publicly accessible deck and private hotel room decks on the third level that overlook Sycamore Street, Public wall art is proposed on each elevation of the residential building and at the ground level of the south elevation (along Third Street) of the hotel building. To promote walkability, sidewalks ten feet in width will be provided along base of the buildings, benches will be installed at the corners of Sycamore and Third Street, and new Sycamore trees along Sycamore Street will be planted. With proper permits and approvals, it is intended that Sycamore Street could be closed temporarily for events such as a farmer's market or artisan fair, with City approvals. Project and Site Background Site Background The site's existing public parking structure was constructed in the early 1980s. The structure consists of 440 parking spaces (an approximately 146,055-square foot, three -level structure) that provides both daily and monthly public parking. The parking structure is in need of significant repairs to fix structural shoring, drainage, circulation and outdated parking equipment issues. 75A-46 DBA No. 2020-01/SPR No. 2020-01/SPR No. Third & Broadway Mixed -Use Development September 28, 2020 Page 5 Setting 2020-02/VAR No. 2020-051TPM No. 2020-02 The TZC was adopted in July 2010 and updated in 2019; it provides a framework for transit -oriented mixed -use, residential, commercial, and limited industrial activities in a large section of central Santa Ana. The Downtown sub -zone in which the project is proposed allows a variety of mixed -use developments intended to contribute to creating a dynamic, transit -oriented area for residents, business owners, and visitors, and to lessen the need for automobile dependence. The project site is not within the Downtown National Register District; however, the boundary of the Downtown National Register District surrounds the project site to the north, west, east and a portion of the south. Planning for the OC Streetcar began in 2008. The fixed -guideway will traverse 4.15 miles throughout Santa Ana and will serve as a last -mile connection from the Santa Ana Regional Transportation Center through Downtown and to the City of Garden Grove. The project is currently under construction and is expected to be operational in 2022. An OC Streetcar stop is planned at Fourth Street between Broadway and Sycamore Street, which is one block from the subject site. Request for Qualifications In 2014, City Council directed the Planning and Building Agency to release a Request for Qualifications (RFQ) searching for a developer that would reconstruct the site's parking, develop the site, and include a hotel component. Five proposals were received in response to the RFQ and only the Caribou Industries proposal included a hotel. In 2017, the City entered into an Exclusive Negotiation Agreement (ENA) with Caribou Industries for the Third & Broadway project. Since then the Community Development Agency has been working with Caribou Industries to complete the DDA regarding the sale of the property and reconstruction of public parking spaces. Following the Planning Commission's review of the entitlements for redevelopment of the site, the DDA will be presented to the City Council for review and approval. Analysis of the Issues Site Plan Review Section 41-2005 of the SAMC requires developments proposing over four stories in height to submit a SPR application to the Planning Commission. As the buildings in the proposed development are proposed to be 16 and 10 stories, approval of two individual SPR applications is required. The mixed -use development will be a 16-story urban building within the Downtown zone and will not be detrimental to the harmonious development of the City or impair the desirability of investment or occupation of the Downtown neighborhood. The development will facilitate the replacement of a parking structure with no features of pedestrian interest with a multi -story building with pedestrian oriented retail, service, and residential uses. In addition, the inclusion of 19 very -low income housing units creates housing opportunities for very -low income households within a highly amenitized mixed - income development. Conditions of approval for public art, public access to the fifth floor deck and community room, and compliance with a parking management plan are included in the SPR. 75A-47 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 6 The hotel conforms to the building form, character and quality of the Downtown zone. The hotel will be the first in Downtown and can cater to individuals doing business at the nearby government facilities and office buildings. Additionally, the hotel will make Downtown Santa Ana available as an overnight destination to those visiting the Orange County area. The development site is accessible to the OC Streetcar, Santa Ana Regional Transportation Center, and local bus routes. Redevelopment of the superblock into two development sites with a new sidewalk and street grid will link the existing Artist Village and west -end commercial uses with the rest of Downtown to help activate the area. Furthermore, the development is consistent with General Plan Land Use Element Goals 1, 2, 3 and 4 and several policies (Policies 1.1, 3.7, 3.1 and 4.5 and 5.1) which aim to promote development within the City's District Centers, redevelop and revitalize the City's urban areas within close proximity to transit and promote land uses that enhance the City's economic and fiscal viability. The proposed mixed -use and mixed -income community and hotel satisfies the goals by providing onsite affordable units in a highly-amenitized development and in Downtown, reducing the need for automobile dependence by encouraging transit ridership and generating sales tax and hotel tax revenues. State Density Bonus Law The applicant is proposing to dedicate 11 percent of the total units (19 units, including 10 studios, 6 one -bedrooms, and 3 two -bedrooms) to be attainable to very -low income households. Therefore, the project is eligible for a density bonus, concession/incentives, waivers and parking reductions per state law (California Government Code Section 65915) in exchange for providing affordable units onsite. To ensure that the units are dedicated as affordable for a period of a minimum of 55 years the applicant will enter into a DBA with the City (Exhibit 10). The law also restricts the ability of local jurisdictions to require studies to "justify" the density bonus and requested incentives/waivers. The law places the onus on local jurisdictions to prove that the incentives/concessions or waivers are not financially warranted and requires substantial evidence determining that granting the concessions and waivers would cause detriment to public health, safety, the physical environment, or any property that is listed in the California Register of Historical Resources. Density Bonus Under the State's Density Bonus Law, developers providing 11 percent very -low income units may request a numerical density bonus of 35 percent from the base density (California Government Code Section 65915 (f)(2)). The General Plan land use designation for the site is District Center, which allows 90 dwelling units per acre and a maximum floor area ratio of 3.0. Based on the site area of 1.41 acres at 90 dwelling units per acre, 127 units are allowed. In exchange for providing 11 percent very -low income units on site, an additional 45 units are permitted through a density bonus. Therefore, the project proposes a total of 171 units with a total floor area ratio (FAR) of 4.2 for the development site. Application of the floor area ratio maximum would physically preclude development of on -site affordable housing units. 75A-48 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 7 Table 3: Density Bonus Calculation ® W e o 1 UvLsMEE • 171 1 • 1 • - ' Concessions and Waivers To help make providing onsite affordable units feasible, the State law allows developers constructing 11 percent very -low income units seek up to two incentives/concessions (California Government Code Section 65915 (d)(2)(B)), and an unlimited number of waivers (California Government Code Section 65915 (e)(1)), which are essentially variances from development standards that would help the project be built. A concession may be a reduction in a site development standard, modification to a zoning code requirement or a modification to architectural design requirement that results in identifiable cost reductions. A waiver is for a standard that would physically preclude development from being built at the permitted density and with the granted concession/incentives. A development standard is defined in California Government Code Section 65915 as a site or construction condition, including, but not limited to, a height limitation, a setback requirement, FAR, an on -site open space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter or other local condition, law, policy, resolution or regulation. Table 4: Requested Incentives/Concessions/Waivers Floor Area Ratio (FAR) 3.0 -Downtown District Center 4.2 FAR — Requires Waiver, Cal. Gov't Code Sec. 65915 (e)(1 Sec. 41-2011(a) — The Line Block building type permits a 16 stories — Requires Waiver, Cal. Height maximum of 10 stories Gov't Code Sec. 65915 (e)(1) 1. The common open space shall be designated as a courtyard, or in the front as a forecourt. This area shall be equal to 15% of the lot and shall be open to the sky. 2. Minimum courtyard width of 20'0" when running EW and 160" when running NS. 3. 20'0" wide courts only permit architectural Common open space is not proposed Sec. 41-2023(f) — projections on two opposing sides. as a courtyard or forecourt — Open Space 4. Private open space for each dwelling unit Requires Concession 1 of 2, Cal. and no less than 50 SF and not less than Gov't Code Sec. 65915 (d)(1) 6'0" in each direction. 5. Private open space can be substituted for common open space or common interior space at an equivalent square footage. The minimum dimension of this space shall be 160" in each direction. Max. Ratios of each Story: Sec. 41-2023(i) — a.Ground Floor —100% Level 3 is proposed at 94%— Massing b. Level 2 —100% Requires Concession 2 of 2, Cal. c. Level 3-5 — 85% Gov't Code Sec. 65915 (d)(1) d. Level 6 + — 850% DBA No. 2020-01/SPR No. 2020-01/SPR No Third & Broadway Mixed -Use Development September 28, 2020 Page 8 2020-02/VAR No. 2020-05/TPM No. 2020-02 The property is within a height exempt zone. However, in the TZC Downtown zone, the Lined Block building type limits structures to a 10-story maximum, but the building is proposed to be 16-stories (193 feet, 10 inches). A waiver from the maximum number of stories is needed for the project. The six additional stories are needed to make construction of a mixed -income high-rise development financially feasible. A designed four upper story levels are needed to accommodate space for 19 on - site affordable units and 44 density bonus units. Efforts to maintain views of the W.H. Spurgeon Building's clock tower to the north of the site have been made by recessing the building mass at the fourth and fifth levels and providing a publicly accessible deck that will provide views of Downtown. In addition, the public parking stalls account for one below -grade and four above -grade levels of the building, adding to the overall height of the development. The application of the 10-story maximum building height standard would physically preclude construction of the mixed -income project. The project's open space is designed as open roof decks rather than courtyards or forecourt, as required bythe TZC. Construction of a courtyard orforecourt would substantially increase engineering costs, and the development would need to be completely redesigned. This would reduce the number of units that could be constructed on the site and therefore reducing the number of affordable housing units that would result from the project. The project exceeds the 15 percent of common and private open space requirements in regards to quantity of open space provided as a total of 10,685 square feet of common open space and 7,550 square feet of private decks are provided. The intent of specifying the massing for each level of a building is to maintain the building form of each building type. A maximum of 85 percent total coverage of the third level is permitted and 94 percent coverage is proposed. In order to maximize the number of parking stalls provided, the building footprint needs to span the building site at level three (cover 94 percent of the site). However, the urban form that the Line Block building type strives for through massing is still achieved due to the overall larger scale of the building. In addition, the levels 4 through 16 meet the prescribed massing standards. The overall building form and design is typical of the Line Block building type and typical of buildings found in a downtown urban environment. A reduction in massing at the third level would result in a reduction in public parking and reduce the financial feasibility of redeveloping the site and providing 19 on -site very -low income units. Overall, the mixed -used and mixed -income nature of the development supports the goals of the TZC. Mixed -Use Building Parking The density bonus law entitles developers to reduced parking standards. Pursuant to California Government Code Section 65915 (p)(1), residential developments providing eleven percent on -site affordable housing units at very -low income levels are entitled to provide on -site parking at the ratio of 1 stall for studio or one -bedroom units, and 2 stalls for two -bedroom units, inclusive of handicapped and guest parking. The applicant has elected to exercise the option to provide this parking ratio pursuant to the California Government Code Section (p)(1) therefore, a total of 196 parking spaces are provided. It is anticipated that employees and patrons for the commercial businesses will utilize the public parking spaces available on site and throughout Downtown. 75A-50 DBA No. 2020-01/SPR No, 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 9 Table 5: Mixed -Use Parking Number of Units & Type Required Parking Per Cal. Gov't Code Section 65915 (1) Provided Parking 95-Studios 95 space 95 spaces 51 One Bedrooms 51 spaces 51 s aces 25 Two Bedrooms 50 spaces 50 spaces Total 196 spaces 196 spaces It is also important to note that under California Government Code Section 65915 (p)(4) upon request of a developer, residential developments providing 11 percent very -low income units and located within one-half mile of a major transit stop are entitled to a parking requirement of only 0.5 spaces per bedroom. The project is within 0.15 miles of the OCTA bus routes 53/53x stop at Main Street and Fourth Street, route 55 stop at Main Street and First Street and route 64/64x stop at Main Street and First Street. As such, the project is entitled to an even lower parking ratio than proposed under which a total of 98 parking spaces would be required for the 171-unit development. However, the applicant is providing 196 parking spaces, which would be an excess of 98 spaces if California Government Code Section 65915(p)(4) were exercised. To address concerns regarding the requested parking incentive, the applicant prepared a parking analysis and parking management plan (PMP) (Exhibit 12). The PMP encourages transit ridership by providing transit maps with tenant move -in packets and upon demand can provide on -site valet service to maximize use of parking areas and reserve additional residential and commercial parking spaces through long-term agreements with the City for use of nearby parking structures. The parking management plan indicates that, if needed, valet service for on -site vehicle stacking for all uses could create an additional 122 parking spaces on levels P1 through 8, raising the total on -site parking supply for the mixed -used project spaces from 196 to 318. In addition, the PMP indicates that an additional 50 offsite parking spaces could be leased on a long-term basis at on - site or nearby City -owned parking structures. When implemented, this would result in an effective parking ratio of 1.86 parking spaces per residential unit with the on -site valet service, and 2.15 spaces per unit with the additional 50 offsite spaces, which would be equivalent to the 2.15 per unit parking space requirement of the TZC. The parking study supports the parking ratio of one space for every studio and one bedroom and two spaces for every two -bedroom unit for variety of factors. These include the project's proximity to existing and future mass transit, such as standard bus service, high-capacity/express bus service, the Santa Ana Regional Transportation Center, and the under -construction OC Streetcar; the project's location within a highly-amenitized, mixed -use environment with shopping and major employment centers nearby; and proximity to nearby existing parking facilities, including parking structures, parking lots, and on -street parking. Variance — Hotel Parking The applicant is proposing to provide 83 hotel parking spaces, which would include 42 mechanical stackers, 4 ADA spaces, and 37 reserved parking spaces in the adjacent parking structure. The applicant is proposing use of Park Plus SpaceMaker Triple Parking Lifts, which is a mechanical stacking device that allows for three vehicles to be stacked above one another. Due to the need for 75A-51 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02NAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 10 trained operation of the system, the stacker system requires use of valet operators. In addition, hotel valet parking services would be provided for 37 vehicles in the adjacent building. Pursuant to SAMC Section 41-632, a variance for a reduction in required off-street parking and from off-street parking access requirements is required. The SAMC requires that all parking stalls be accessible and useable. The mechanical stackers do not allow for all of the parking stalls to be accessible as the system requires trained valet operators. In addition, the applicant is proposing to utilize the SAMC Section 41-1344 hotel off-street parking standard instead of the TZC's Downtown zone's non-residential off-street parking requirements. Table 6: Hotel Parking Transit Zoning Code 156 spaces 1 space per 400 square feet of non-residential uses 83 spaces; Santa Ana Municipal Code Section 41-1344 83 spaces 42 stackers 1 space per 1 room + 1 space per every 10 rooms 37 reserved spaces Requested Variance 73 spaces 4 ADA spaces The TZC parking requirements do not differentiate between hotels and other commercial uses. Therefore, the required off-street parking for all commercial uses in the TZC Downtown zone is one parking space per every 400 square feet. Application of the TZC Downtown zone standard for the 62,516 square foot hotel would require 156 parking spaces, which would be an additional 73 spaces (46-percent variance). The SAMC Section 41-1344 hotel off-street parking requirement for hotels requires one parking space for every room plus one space per every ten rooms. Application of SAMC Section 41-1344 hotel off-street parking standard, a more apt standard, would require 83 parking spaces. The applicant engaged the services of Urban Crossroads, a professional parking consulting firm, to prepare a parking analysis, which supports use of the SAMC Section 41-1344 hotel off-street parking standard due to the mixed -use nature and urban location of the project. In addition, the study notes that the SAMC Section 41-1344 hotel off-street parking standard is higher than other jurisdictions' standards, such as Anaheim, Costa Mesa and Buena Park's hotel off-street parking requirements, all of which are hotel -rich cities. Condition of approvals for the variance and hotel's SPR application have been added to require valet service and reciprocal parking and accesses easements within the adjacent mixed -use development site. Due to the project's proximity to public transportation options and to support the intended goal of creating a transit -oriented Downtown, staff supports use of the SAMC Section 41-1344 hotel off- street parking standard. Requiring an additional 73 parking spaces would be contrary to the goal of the TZC to create transit -oriented developments. Granting the variance will not be detrimental to the public welfare or injurious to surrounding properties with the conditions of approval applied to the project to manage parking through valet service. 75A-52 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 11 Tentative Parcel Map Subdivision requests are governed by Chapter 34 and Chapter 41 of the SAMC. Pursuant to Section 66473.5 and 66474 of the California Subdivision Map Act, applications for tentative parcel maps are approved when it can be shown that findings can be made in support of the request. Specifically, findings related to the proposal must be made to show consistency with the General Plan, conformance to all applicable City ordinances, the project site being physically suitable for the type and density of the proposed project, the proposed project not causing substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat, not causing serious public health problems, or not conflicting with easements necessary for public access through or use of the property. The applicant is seeking approval of a tentative parcel map for condominium purposes to subdivide the 1.41-acre parcel into two parcels, create three airspace parcels and to provide public and emergency vehicle access to a private street and sidewalks (Exhibit 13). The subdivision is not to create residential condominium units for sale and ownership. The airspace parcels that are being created are referred to as condominium units and allow the parcels to have separate interests. The two parcels include Parcel 1 (the mixed -use residential building) and Parcel 2 (the hotel building). Parcels A, B, and C represent airspace parcels (set horizontal and vertical limits) of the parking areas within the structure for separate interests. The building and common areas will be managed by Covenants, Conditions and Restrictions (CC&Rs). In reviewing the project, staff determined that the proposal as conditioned is consistent with the various provisions of the SAMC and General Plan, including lot size and lot frontage. No adverse environmental impacts to fish or wildlife populations were identified as the project site is located in a built -out, urbanized area. Finally, the tentative map was found to be consistent with the California Subdivision Map Act and Chapters 34 and 41 of the Municipal Code. California Environmental Quality Act (CEQA) An addendum to a previously certified EIR is prepared when a lead agency is asked to approve modifications to an existing project for which an EIR has already been certified. An addendum evaluates the requested modifications and determines whether subsequent EIR review is required. Since none of the conditions specified in State CEQA Guidelines, section 15162 are present, an Addendum to the previously -certified 2010 EIR was prepared for the Third and Broadway project. Pursuant to State CEQA Guidelines section 15164(b), an addendum to a previously -certified EIR is not circulated for public review. The Addendum is included with this staff report as Exhibit 14. Pursuant to State CEQA Guidelines section 15164(d), the Planning Commission must consider the Addendum together with the TZC's original 2010 EIR before making a decision on the project. Previous CEQA Documentation The 2010 TZC EIR (SCH No. 2006071100) anticipated potential development of approximately 4,075 residential units, 387,000 square feet of retail development, and an additional 15.5 acres of open space within the City. The 2010 EIR considered the environmental impacts related to 75A-53 DBA No. 2020-01/SPR No. 2020-01/SPR No Third & Broadway Mixed -Use Development September 28, 2020 Page 12 2020-02NAR No. 2020-05/TPM No. 2020-02 aesthetics; air quality; biological resources; cultural resources; hazards and hazardous materials; hydrology and water quality; land use; noise; population, housing, and employment; public services; transportation and traffic; utilities and service systems; and climate change. A mitigation monitoring and reporting program, findings of fact, and a statement of overriding consideration were adopted with the 2010 EIR. 2020 Third and Broadway Addendum The Addendum focuses on the potential environmental impacts associated with the project, including the density bonus application and associated concessions and waivers, site plan review applications, variance, tentative parcel map and disposition and development agreement that might cause a change in the conclusions of the certified 2010 EIR, including changes in circumstances or new information of substantial importance that would substantially change those conclusions. The proposed development required preparation of studies relating to shade and shadow, air quality and greenhouse gas emissions, traffic, parking, noise and vibration, Phase I environmental site assessment, hydrology, a preliminary water quality management plan, and sewer capacity (Attachments to the 2020 Addendum). All studies evaluate the proposed project as compared to the existing entitlements and were reviewed for content and accuracy by the City. In addition, the project is within a Transit Priority Area. Under Senate Bill 743, aesthetic and parking impacts cannot be considered a significant impact within a Transit Priority Area. The addendum concludes no new or substantially greater impacts would occur with implementation of the proposed development when compared to those identified in the 2010 EIR and finds that no supplemental or subsequent EIR is required for the proposed development. Therefore, the 2010 EIR's MMRP will continue to mitigate or lessen any impacts already identified by the TZC's original 2010 EIR. Economic Development The Community Development Agency in coordination with Kosmont Companies estimates approximately 510 local construction jobs and $53,000,000 in local labor income will be generated in the short-term, and $737,000 in annual general fund revenue will be generated for the long-term. Table 7: Estimated General Fund Revenue from Proposed Project Summary of Annual Estimated Revenue from Project Property Tax Secured & Unsecured) $210,000 Property Tax In -Lieu of VLF $130,000 Sales & Use Tax On-Site/Direct $57,000 Sales & Use Tax Off-Site/Indirect $25,000 Transient Occupanc Tax $90 RevPar $270,000 Utility User Tax & Other Tax $45,000 Annual General Fund Revenues (ROUNDED): $737,000 75A-54 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 Third & Broadway Mixed -Use Development September 28, 2020 Page 13 Table 8: Economic Benefits of Construction for 3rd and Broadway Employment Labor income Direct On -Site 475 $49,000,000 Indirect 180 $14,000,000 Induced 200 $13,000,000 Total Countywide 855 $76,000,000 Estimated City Capture 510 $53,000,000 Table 9: Public Notification and Community Outreach �lbliNgti#ication ogtl,„Comm nit _;Oyte nji'ah," ,` `"` Required Measures A community meeting was held on October 8, 2019 at 6:00 p.m. at 100 South Main Street in accordance with the provisions of the City's Sunshine Ordinance. Invitations/notices were mailed to property owners and occupants/tenants in a 500-foot radius from the project site. Approximately 13 members of the public attended, as well as 3 City staff. The applicant provided all the required information to the City after the meeting. Details from the community meeting were posted to the project's webpage at https://www.santa- ana.org/pb/planning-division/major-planning-projects-and-monthly-development- ro'ect- re orts/3rd-and-0. Notification by mail was mailed to all property owners, occupants, and other interested parties within 500 feet of the project site in accordance with SAMC requirements. Newspaper posting was published in the Orange County Reporter in accordance with _ SAMC requirements. Additional Measures Over the past three years the applicant has conducted one-on-one informational meetings with over twenty businesses or interested parties in an around Downtown along with outreach with the Chamber of Commerce and Downtown Inc. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission adopt a resolution approving (1) Addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH NO. 2006071100) and adoption of a mitigation monitoring and reporting program for Variance No. 2020-05 and Tentative Parcel Map No. 2020-02, (2) Variance No. 2020- 05 for the hotel off-street parking requirements as conditioned, and (3) Tentative Parcel Map No. 2020-02 as conditioned. In addition, staff recommends that the Planning Commission recommend that the City Council adopt a resolution approving (1) Addendum to the Environment Impact Report for the Transit Zoning Code Project (SCH NO. 2006071100) and adoption of a mitigation monitoring and reporting program for Density Bonus Agreement Application No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, and the Disposition and Development Agreement; and (2) Density Bonus Agreement Application No. 2020-01 with concessions and waivers, Site Plan Review No. 2020-01 for a mixed -use development and Site Plan Review No. 2020-02 for a hotel as conditioned. 75A-55 DBA No. 2020-01/SPR No. 2020-01/SPR No Third & Broadway Mixed -Use Development September 28, 2020 Page 14 kLL_'�Maw Selena Kelaher, AICP Associate Planner SK:sb 2020-02NAR No. 2020-05/TPM No. 2020-02 S:\Planning Commission\2020\09-28-20\3rd & Broadway Addendum, DBA, SPR, VAR, TTM\Staff Report\SPR DBA 3rd& Br02dway.pc 09172020.docx Exhibits: 1. Resolutions (EIR Addendum, Density Bonus Agreement, Site Plan Review, Variance, Tentative Parcel Map) 2. Vicinity Zoning and Aerial Map 3. Site Photos 4. Site Plan 5. Residential Unit Floor Plans 6. Mixed -Use Building Elevations 7. Hotel Building Elevations 8. Renderings 9. Mixed -Use and Hotel Open Space 10. Conformance to Development Standards 11. Draft Density Bonus Agreement 12. Parking Analysis and Parking Management Plan 13.Tentative Parcel Map 14.2010 Transit Zoning Code EIR Link 15.2020 EIR Addendum and Technical Appendices Link 16. Sunshine Meeting Minutes 75A-56 EXHIBIT 1 75A-57 RESOLUTION NO. 2020-xx A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING AND ADOPTING AN ADDENDUM TO THE ENVIRONMENTAL IMPACT REPORT FOR THE TRANSIT ZONING CODE PROJECT (SCH NO. 2006071100) FOR VARIANCE NO. 2020-05 AND TENTATIVE PARCEL MAP NO. 2020-02 AND ADOPTION OF A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE THIRD AND BROADWAY MIXED - USE PROJECT LOCATED AT 201 WEST THIRD STREET WHEREAS, Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Variance No. 2020-05, Tentative Parcel Map No. 2020-02, and a Disposition and Development Agreement to allow the demolition of an existing public parking structure and construction of a new mixed -use 171-unit residential and 13,419 square foot commercial development and 75-room hotel at 201 West Third Street; and WHEREAS, the subject Property contains 1.41 acres and is currently developed with a City -owned public parking structure; and WHEREAS, the Transit Zoning Code was adopted in 2010 as a result of interest in developing transit -oriented mixed -use residential and commercial projects in its project area. The Transit Zoning Code was amended in 2019 to modernize and refine development standards to further these interests. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including mixed -use residential communities, live/work units, hotels, and offices; and WHEREAS, the City Council of the City of Santa Ana certified the Environmental Impact Report (SCH No. 2006071100) and adopted a mitigation monitoring and reporting program for the Transit Zoning Code, which allows a mixture of residential, commercial, and limited industrial land uses; and WHEREAS, the entitlements sought for the proposed mixed -use development project include a Density Bonus Agreement application, two Site Plan Review applications, a Variance application, a Tentative Parcel Map application, and a Disposition and Development Agreement; and WHEREAS, in 2010, the City Council certified the Final Environmental Impact Report ("2010 EIR") for the Transit Zoning Code Project ("Originally Approved Plan"), which analyzed the potentially significant environmental impacts of a mixed -use plan area consisting of new residential, commercial, and industrial development; and 75A-58 WHEREAS, pursuant to the 2010 EIR, the subject site may be developed with a mixed -use development consisting of residential and commercial land uses; and WHEREAS, when compared against the Originally Approved Plan, the proposed mixed -use development will not result in any new or intensified significant impacts; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code section 21000 et seq.) ("CEQA") and the State CEQA Guidelines (14 Cal. Code Regs. 15000 et seq.), the City is the Lead Agency for the proposed development; and WHEREAS, pursuant to CEQA, when taking subsequent discretionary actions in furtherance of a project for which an EIR has already been certified, the Lead Agency is prohibited from requiring a subsequent or supplemental EIR unless at least one of the circumstances identified in Public Resources Code section 21166 or State CEQA Guidelines section 15162 are present; and WHEREAS, City staff has evaluated the proposed project and considered whether, in light of the impacts associated with its development, any supplemental or subsequent environmental review is required pursuant to Public Resources Code section 21166 or State CEQA Guidelines section 15162; and WHEREAS, the analysis contained in the Third & Broadway project's EIR Addendum ("2020 Addendum") concludes that none of the circumstances described in Public Resources Code section 21166 or State CEQA Guidelines section 15162 have occurred, and thus no supplemental or subsequent EIR is required; and WHEREAS, the proposed Project is within a transit priority area (TPA) as defined by Public Resources Code (PRC) Section 21099(a)(7). A TPA is an area within one-half mile of a major transit stop that is existing (or planned under certain conditions). A major transit stop includes the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods (PRC § 21064.3). The Project site is within 0.15 miles of the intersection of Bus Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west via 1st Street). Under SB 743, aesthetic and parking impacts cannot be considered a significant impact within TPA's; and WHEREAS, on September 28, 2020 at a duly noticed public hearing, the Planning Commission considered the 2020 Addendum for Variance No. 2020-05 and Tentative Map No. 2020-02; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF SANTA ANA DOES RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS: 75A-59 SECTION 1. The above recitals are true and correct and incorporated herein by reference. SECTION 2. State CEQA Guidelines section 15164 requires lead agencies to prepare an addendum to a previously certified EIR if some changes or additions to the project are necessary, but none of the conditions requiring preparation of a subsequent EIR are present. The Planning Commission has reviewed and considered the 2010 EIR and the 2020 Addendum, and finds that these documents taken together contain a complete and accurate reporting of all of the potential environmental impacts associated with the proposed development. The Planning Commission further finds that the 2020 Addendum has been completed in compliance with CEQA and the State CEQA Guidelines. The Planning Commission further finds and determines that the Addendum reflects the City's independent judgment. SECTION 3. Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Addendum, the Planning Commission finds that an addendum is the appropriate document for disclosing the changes to the subject property, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: (a) The proposed development does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. (b) There is not a substantial change with respect to the circumstances under which the proposed development will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. (c) New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. 75A-60 SECTION 4. The Planning Commission hereby finds that mitigation measures identified in the 2010 EIR remain applicable to the Transit Zoning Code. These findings are laid out more specifically in the Mitigation Monitoring and Reporting Program ("MMRP") attached hereto as Exhibit A. The Planning Commission therefore hereby adopts those mitigation measures identified as remaining applicable to the Transit Zoning Code, through the MMRP attached hereto and incorporated herein as Exhibit A. Applicant shall be solely responsible for the implementation of all mitigation measures in the MMRP applicable to any aspect of the proposed mixed -use development project. SECTION 5. The Planning Commission hereby approves and adopts the 2020 Third and Broadway Addendum related to Variance No. 2020-05 and Tentative Parcel Map No. 2020-02, attached hereto and incorporated herein as Exhibit B. SECTION 6. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. SECTION 7. The Planning Commission directs staff to prepare, execute and file a CEQA Notice of Determination with the Orange County Clerk's Office within five working days of the Planning Commission's approval of Variance No. 2020-05 and Tentative Parcel Map No. 2020-02 for the Third and Broadway Mixed -Use Development Project. SECTION 8. The 2010 EIR and the 2020 Addendum, and any other documents and materials that constitute the record of proceedings upon which these findings have been based are on file, are incorporated herein by reference and are available for public review at Santa Ana City Hall, Planning and Building Agency, M20, 20 Civic Center 75A-61 Plaza, Santa Ana, California 92701. The custodian of these records is Daisy Gomez, City Clerk for the City. SECTION 9. This resolution shall take effect immediately upon its adoption by the Planning Commission, and the Recording Secretary shall attest to and certify the vote adopting this resolution. ADOPTED this 28th day of September, 2020 by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. dge Assistant pity At orney Mark McLoughlin Chairperson 75A-62 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, SARAH BERNAL Recording Secretary, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the Planning Commission of the City of Santa Ana on September 28, 2020. Date: Recording Secretary City of Santa Ana 75A-63 EXHIBIT A MITIGATION MONITORING AND REPORTING PROGRAM The Mitigation Monitoring and Reporting Program (MMRP) is available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and- monthly-development-protect-reports/3rd-and-0 Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana, CA 92701 75A-64 EXHIBIT B THIRD AND BROADWAY EIR ADDENDUM The Third and Broadway Project EIR Addendum and Technical Appendices are available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and- monthly-development-project-reports/3rd-and-0 Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana, CA 92701 75A-65 RESOLUTION NO. 2020-xx A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING VARIANCE NO. 2020-05 AS CONDITIONED TO ALLOW THE CONSTRUCTION OF A TEN -STORY, 63,069 SQUARE - FOOT, 75 ROOM HOTEL WITH A 46-PERCENT REDUCTION OF REQUIRED OFF-STREET PARKING FOR THE HOTEL PROJECT LOCATED AT 201 WEST THIRD STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Variance No. 2020-05 as conditioned, to allow the construction of a ten -story, 63,069 square foot, 75-room hotel with 83 parking spaces at 201 West Third Street. B. Pursuant to Santa Ana Municipal Code (SAMC) Section 41-638, the Planning Commission is authorized to review and approve variances for this project to allow a reduction in required off-street parking and deviations to access requirements as set forth by the Santa Ana Municipal Code. Granting the variance would allow for use of the Santa Ana Municipal Code Section 41-1433 (hotel off-street parking standards) and use of mechanical stackers. C. On September 28, 2020, the Planning Commission of the City of Santa Ana held a duly noticed public hearing regarding Variance No. 2020-05 at that time considered all testimony, written and oral. D. Sections 41-2007 and 41-593.5 of the Santa Ana Municipal Code (SAMC) requires a review by the Planning Commission of all plans for developments of over four stories within the Transit Zoning Code (Specific Development No. 84) to ensure the project is in conformity with the overlay zone plan. E. The zoning designation for the subject property is Specific Development No. 84, Downtown sub -zone. F. The Planning Commission determines that pursuant to SAMC Sections 41-2007 and 41-593.5, the hotel project is in compliance with all 75A-66 applicable development standards outlined within the Specific Development (SD No. 84/Transit Zoning Code). G. The Planning Commission of the City of Santa Ana has considered the information and determines that following findings, which must be established in order to grant Variance No. 2020-05, have been established as required by SAMC Section 41-638: 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this Chapter. The project site has a special circumstance related to its topography, location and surroundings. The subject site and below grade level of the parking structure has a history of flooding due to the site's topography. If the applicant were to construct additional levels of below grade parking potential risks of flooding and drainage issues may exist or require extensive engineering. The development site is an existing 1.41-acre parcel bound by existing buildings to the east and bound by streets and an alley to the north, south and west which limits construction opportunities for traditional parking spaces, lots or structures. The project is located within the Transit Zoning Code Downtown zone and is 0.15 miles of the OCTA bus routes 53/53x stop at Main Street and Fourth Street, route 55 stop at Main Street and First Street and route 64/64x stop at Main Street and First Street. The OC Streetcar (under construction and planned to be operational in 2022) stop is planned at Fourth Street between Broadway and Sycamore Street which is one block from the subject site. The project's location and surroundings support a reduction in off-street parking as it is within a mixed -use environment with a variety of transit opportunities within walking distance of the project. Application of the Transit Zoning Code Section 2011(d) parking standard would deprive the Downtown hotel of privileges provided to hotels that are not within the Transit Zoning Code and are prescribed the Santa Ana Municipal Code Section 41-1344. 2. That the granting of a variance is necessary for the preservation and enjoyment of one (1) or more substantial property rights. 75A-67 The granting of this variance is necessary in order for the applicant to include a hotel development. Strict application of the off-street parking standards would result in significant changes to the site plan and floor plans and increase construction costs, which would render the project infeasible. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be detrimental to the public or surrounding properties. Conditions of Approval are included to require 24-hour valet parking service for the hotel and to require reciprocal access and parking for 37 vehicles within the adjacent parking structure. Additionally, the site has been designed with a valet parking drop-off lane on Sycamore Street immediately adjacent to the hotel lobby. A parking analysis prepared by Urban Crossroads dated September 9, 2020 notes that the Transit Zoning Code non- residential off-street parking and Santa Ana Municipal Code Section 41-1344 hotel off-street parking requirements are higher than other nearby hotel -rich Orange County cities (Anaheim, Costa Mesa and Buena Park). In addition, it is expected that many patrons would use ride -sharing options or public transportation; therefore, the proposed 83 parking spaces will meet the demand of the 75 room hotel and will not create impacts to the public or nearby properties. 4. That the granting of a variance will not adversely affect the General Plan of the city. The development of a hotel will support several goals and policies of the General Plan, including Goals 2 and 3 of the Economic Development Element to maintain and enhance the diversity of the City's economic base and increase Santa Ana's share of the regional economy. The hotel will increase Santa Ana's contribution to the hospitality and tourism sector of the regional economy and will be subject to the City's Hotel Visitors' Tax, generating revenue for the City. The hotel will be the first in Downtown and can cater to individuals doing business at the nearby government facilities and office buildings. Additionally, the hotel will make Downtown Santa Ana available as an over -night destination to those visiting the Orange County area. The project also supports Goals 1, 2, 3 and 4 of the Land Use Element to encourage uses that promote a balance of land uses that address basic community needs, promote land uses which 75A-68 enhance the City's economic and fiscal viability, to preserve and improve the character and integrity of existing neighborhoods and to protect and enhance development sites and districts which are unique community assets that enhance the quality of life. Redevelopment of the super block into two development sites with a new sidewalk and street grid will link the existing Artist Village and west -end commercial uses with the rest of Downtown to help activate the area. The development will rehabilitate a property that is underutilized and will increase capital investment. Section 2. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 3. In accordance with the California Environmental Quality Act (CEQA), the Planning Commission of the City of Santa Ana hereby finds, determines, and declares as follows: Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Third and Broadway Addendum, the Planning Commission finds that an addendum is the appropriate document for disclosing the changes to the subject properties, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: 75A-69 A. The project does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. B. There is not a substantial change with respect to the circumstances under which the project will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. C. New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. Section 4. The Planning Commission of the City of Santa Ana, after conducting the public hearing, hereby approves Variance No. 2020-05 as conditioned in "Exhibit A" attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated September 28, 2020, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. Section 5. Variance No. 2020-05 shall not be effective until the City Council reviews and approves the Addendum, Environmental Review No. 2019-85, Density Bonus Application No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and the Disposition and Development Agreement for the subject project. If said approvals are held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise denied, then this variance shall be null and void and have no further force and effect. 75A-70 "'Signatures on following page"' ADOPTED this 28th day of September, 2020 by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Mark McLoughlin Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. dge Assistant ity At orney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, SARAH BERNAL Recording Secretary, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the Planning Commission of the City of Santa Ana on September 28, 2020. 75A-71 Date: Recording Secretary City of Santa 75A-72 EXHIBIT A Conditions for Approval for Variance No. 2020-05 Variance No. 2020-05 are approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, they shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below Prior to exercising the rights conferred by this site plan review and variance. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the site plan review. 1. All proposed site improvements must conform to the Site Plan Review (DP No. 2019- 32) and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. 24-hour valet service shall be required for the hotel operations. 4. Hotel valet service staff shall be trained in the use and operation of the mechanical stacker system. At least one trained operator of the mechanical stacker system shall be onsite at all times. 5. Vehicles shall not be stacked or queued within any street, alley, or other public right-of- way. 6. Prior to the issuance a certificate of occupancy, proof of recorded reciprocal parking and access easements and reserved parking for 37 vehicles must be provided to the Planning Division. 7. Prior to the issuance of a certificate of occupancy, the Applicant shall provide proof of valet service and operations. 75A-73 RESOLUTION NO. 2020-xx A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING TENTATIVE PARCEL MAP NO. 2020-02 AS CONDITIONED TO SUBDIVIDE AN EXISTING 1.41-ACRE PARCEL INTO TWO PARCELS AND CONDOMINIUM AIRSPACES FOR THE PROPERTY LOCATED AT 201 WEST THIRD STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Tentative Parcel Map No. 2020- 02, as conditioned to subdivide an existing 1.41-acre parcel into two parcels and condominium airspace at 201 West Third Street. B. Tentative parcel map ("TPM") applications require approval of a parcel map by the Zoning Administrator pursuant to Section 34-126 of the Santa Ana Municipal Code ("SAMC") and pursuant to Section 34-127 the Planning Commission shall review and approve the map. In an effort to streamline the discretionary process, the application has been bundled for Planning Commission review with the other entitlements associated with the Third & Broadway project. C. Subdivision requests are governed by Chapter 34 and Chapter 41 of the SAMC. Pursuant to Sections 66473.5 and 66474 of the California Subdivision Map Act, applications for tentative parcel maps are approved when certain findings can be established. D. Tentative Parcel Map No. 2020-02 (County Map No. 2020-159) came before the Planning Commission of the City of Santa Ana on September 28, 2020 for a duly noticed public hearing. E. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to approve Tentative Parcel Map No. 2020-02 (County Map No. 2020-159), have been established as required by SAMC Section 34-126 and the California Subdivision Map Act: 1. The proposed project and its design and improvements are generally consistent with the District Center designation of the General Plan and are otherwise consistent with all other Elements of the General Plan. 75A-74 Tentative Parcel Map No. 2020-02 (County Map No. 2020- 159), as conditioned, and its design and improvements will be generally consistent with the District Center General Plan land use designation. The project includes 10-foot-wide sidewalks and the installation of street trees, lights and benches on Sycamore Street. Further, the mixed -use and hotel project is consistent with the Land Use Element, as the use provides a mixed -use and mixed -income project, employment opportunities for local residents, and generates municipal revenues for continued economic development. The proposed subdivision promotes Land Use Element Policy 5.4, which supports land uses that are consistent with the Land Use Element. 2. The proposed project conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. Tentative Parcel Map No. 2020-02 (County Map No. 2020- 159), as conditioned, will conform to all applicable requirements of the zoning and subdivision codes (Chapter 34 and 41 of the Santa Ana Municipal Code) as well as other applicable City ordinances subject to the Planning Commission and City Council's approval of Density Bonus Agreement No 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Variance No. 2020-05 and Disposition and Development Agreement. Lastly, Covenants, Conditions and Restrictions (CC&Rs) will address issues such as drainage, reciprocal access, landscaping and maintenance and will be recorded prior to approval of the final map. 3. The project site is physically suitable for the type and density of the proposed project. The project site is physically suitable for a mixed -use and hotel project and the density of the proposed project is consistent with the Downtown District Center density of 90 dwelling units per acre and 35 percent density bonus consistent with California Government Code Section 65915. Any future development will comply with the provisions of the Santa Ana Municipal Code. 4. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. 75A-75 The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. Since the project is located in an urbanized area, there are no known fish or wildlife populations existing on the subject site. The existing site is a disturbed site containing a three level parking structure with no landscaping. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. 5. The design or improvements of the proposed project will not cause serious public health problems. The design or improvements of the proposed project will not cause serious health problems, with the proposed subdivision not having any detrimental effects upon the general public. All necessary utilities and infrastructure improvements currently exist and comply with City standards. An emergency access easement will be provided for the new private street. Therefore, approval of this subdivision will not cause any serious public health problems. 6. The design or improvements of the proposed project will not conflict with easements necessary for public access through or use of, property within the proposed project. The designs or improvements associated with approval of the tentative parcel map will not conflict with easements necessary for public access through or use of the property within the proposed project. The project includes a new street and sidewalk and will provide public vehicular and pedestrian access to the street and sidewalk. The project site will provide a reciprocal access and parking easement for the shared common driveways and drive aisle to allow public access to the 211 public parking spaces and 37 hotel valet parking spaces within the parking structure. In addition, the CC&Rs will ensure all ingress and egress easement and access will be maintained for the project site. Section 2. In accordance with the California Environmental Quality Act (CEQA), the Planning Commission of the City of Santa Ana has, as a result of its consideration of the record as a whole and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, Environmental Review No. 2019- 85 meets all the requirements of CEQA and recommends City Council approval: 75A-76 Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Third & Broadway Addendum, the Planning Commission finds that an addendum is the appropriate document for disclosing the changes to the subject properties, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: A. The project does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. B. There is not a substantial change with respect to the circumstances under which the project will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. C. New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. Section 3. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and 75A-77 instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 4. The Planning Commission of the City of Santa Ana, after conducting the public hearing, hereby approves Tentative Parcel Map No. 2020-02 (County Map 2020- 159) as conditioned in Exhibit A, attached hereto and incorporated as though fully set forth herein for the property located at 201 West Third Street. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated September 28, 2020, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. Section 5. Tentative Parcel Map No. 2020-02 shall not be effective until the City Council reviews and approves the Addendum, Environmental Review No. 2019-85, Density Bonus Application No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and the Disposition and Development Agreement for the subject project. If said approvals are held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise denied, then this variance shall be null and void and have no further force and effect. "'Signatures on following page"' 75A-78 ADOPTED this 28th day of September 2020, by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Mark McLoughlin Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: '� I V Ryan O. o ge Assistant ty Att rney ryairi��y_�rx.»_��r��r_�r�.�►ra►uz.�:u�i►rarr�-i I, SARAH BERNAL, Recording Secretary, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the Planning Commission of the City of Santa Ana on September 28, 2020. 75A-79 Date: Recording Secretary City of Santa Ana 75A-80 Tentative Parcel Map No. 2020-02 (County Map No. 2020-159) approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, Applicant shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below Prior to exercising the rights conferred by this tentative parcel map. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the tentative parcel map. Planning Division 1. All proposed site improvements must conform to the Site Plan Review approval of DP No. 2019-32 and the staff report exhibits. 2. Two copies of the recorded final parcel map shall be submitted each to the Planning Division, Building Division and Public Works Agency within 10 days of recordation. 3. Applicant must submit Covenants, Conditions and Restrictions (CC&Rs) for the project to the case planner for review and approval prior to the final map being recorded. Additionally, CC&Rs will be adopted to define the operating and maintenance requirements and enforcement of the CC&Rs provisions. 4. The tentative parcel map, final map and all improvements required to be made or installed by the subdivider shall be in accordance with the requirements and design standards and specifications of the City of Santa Ana and the requirements of the California Subdivision Map Act. 5. After project occupancy, landscaping is to be maintained in accordance with the approved landscape plan. This shall include the minimum levels of plant materials shown on the landscape plan, site furnishings, and hardscape materials. Any modifications to this plan shall be submitted to the Planning Division for review and subject to the approval of the Planning Manager. 75A-81 6. The property owner shall be responsible for maintaining the lots free from debris, overgrown vegetation, and graffiti. The property owner shall provide as part of the Covenants, Conditions and Restrictions (CC&Rs) that the owner of each condominium shall immediately remove any graffiti placed thereon. Any graffiti must be removed within 24 hours 7. The final map must be approved and recorded prior to issuance of on -site improvements such as, but not limited to the sidewalk and driveway apron improvements. 8. Development within the area of the map is subject to development and permit fees in effect at the time of permit issuance. Prior to approval of Certificate of Occupancy, all on -site improvements shall be made in accordance with the submitted plans. 9. Prior to submittal of the final map, the Applicant shall submit a management plan per Sections 34-335 and 34-376 of the Santa Ana Municipal Code. 10. Prior to submittal of the final map, the Applicant shall submit a conversion plan per Section 41-1804 of the Municipal Code. 11. Property Maintenance Agreement. Subject to review and applicability by the Planning and Building Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Developer (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) shall execute a maintenance agreement or incorporate the form of this condition within the project's CC&R's with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The maintenance agreement shall contain covenants, conditions and restrictions relating to the following: a. Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.); b. Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses, 75A-82 c. Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; d. Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); e. If Developer and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the maintenance agreement and both shall be jointly and severally liable for compliance with its terms. f. The maintenance agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under the maintenance agreement. g. The maintenance agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any unreimbursed costs and/or expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City. h. The execution and recordation of the maintenance agreement shall be a condition precedent to the final map being recorded. 75A-83 RESOLUTION NO. 2020-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AND ADOPTING AN ADDENDUM TO THE ENVIRONMENTAL IMPACT REPORT FOR THE TRANSIT ZONING CODE PROJECT (SCH NO. 2006071100) FOR SITE PLAN REVIEW NO. 2020-01, SITE PLAN REVIEW NO. 2020-02, DENSITY BONUS AGREEMENT NO. 2020-01 AND DISPOSITION AND DEVELOPMENT AGREEMENT AND ADOPTION OF A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE THIRD AND BROADWAY MIXED - USE PROJECT LOCATED AT 201 WEST THIRD STREET WHEREAS, Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Variance No. 2020-05, Tentative Parcel Map No. 2020-02, and a Disposition and Development Agreement to allow the demolition of an existing public parking structure and construction of a new mixed -use 171-unit residential and 13,419 square foot commercial development and 75-room hotel at 201 West Third Street; and WHEREAS, the subject Property contains 1.41 acres and is currently developed with a City -owned public parking structure; and WHEREAS, the Transit Zoning Code was adopted in 2010 as a result of interest in developing transit -oriented mixed -use residential and commercial projects in its project area. The Transit Zoning Code was amended in 2019 to modernize and refine development standards to further these interests. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including mixed -use residential communities, live/work units, hotels, and offices; and WHEREAS, the City Council of the City of Santa Ana certified the Environmental Impact Report (SCH No. 2006071100) and adopted a mitigation monitoring and reporting program for the Transit Zoning Code, which allows a mixture of residential, commercial, and limited industrial land uses; and WHEREAS, the entitlements sought for the proposed mixed -use development project include a Density Bonus Agreement application, two Site Plan Review applications, a Variance application, a Tentative Parcel Map application, and a Disposition and Development Agreement; and WHEREAS, in 2010, the City Council certified the Final Environmental Impact Report ("2010 EIR") for the Transit Zoning Code Project ("Originally Approved Plan"), which analyzed the potentially significant environmental impacts of a mixed -use plan area consisting of new residential, commercial, and industrial development; and WHEREAS, pursuant to the 2010 EIR, the subject site may be developed with a mixed -use development consisting of residential and commercial land uses; and WHEREAS, when compared against the Originally Approved Plan, the proposed mixed -use development will not result in any new or intensified significant impacts; and 75A-84 WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code section 21000 et seq.) ("CEQA") and the State CEQA Guidelines (14 Cal. Code Regs. 15000 et seq.), the City is the Lead Agency for the proposed development; and WHEREAS, pursuant to CEQA, when taking subsequent discretionary actions in furtherance of a project for which an EIR has already been certified, the Lead Agency is prohibited from requiring a subsequent or supplemental EIR unless at least one of the circumstances identified in Public Resources Code section 21166 or State CEQA Guidelines section 15162 are present; and WHEREAS, City staff has evaluated the proposed project and considered whether, in light of the impacts associated with its development, any supplemental or subsequent environmental review is required pursuant to Public Resources Code section 21166 or State CEQA Guidelines section 15162; and WHEREAS, the analysis contained in the Third & Broadway project's EIR Addendum ("2020 Addendum") concludes that none of the circumstances described in Public Resources Code section 21166 or State CEQA Guidelines section 15162 have occurred, and thus no supplemental or subsequent EIR is required; and WHEREAS, the proposed Project is within a transit priority area (TPA) as defined by Public Resources Code (PRC) Section 21099(a)(7). A TPA is an area within one-half mile of a major transit stop that is existing (or planned under certain conditions). A major transit stop includes the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods (PRC § 21064.3). The Project site is within 0.15 miles of the intersection of Bus Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west via 1st Street). Under SB 743, aesthetic and parking impacts cannot be considered a significant impact within TPA's; and WHEREAS, on September 28, 2020 at a duly noticed public hearing, the Planning Commission recommended City Council adoption of the 2020 Addendum; and WHEREAS, on October 20, 2020 at a duly noticed public hearing, the City Council considered the 2020 Addendum for Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Density Bonus Agreement No. 2020-01 and Disposition and Development Agreement; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES RESOLVE, DETERMINE, FIND AND ORDER AS FOLLOWS: SECTION 1. The above recitals are true and correct and incorporated herein by reference. SECTION 2. State CEQA Guidelines section 15164 requires lead agencies to prepare an addendum to a previously certified EIR if some changes or additions to the project are necessary, but none of the conditions requiring preparation of a subsequent EIR are present. The City Council has reviewed and considered the 2010 EIR and the 2020 Addendum, and finds that these documents taken together contain a complete and accurate reporting of all of the potential environmental impacts associated with the proposed development. The City Council further finds that the 2020 Addendum has 75A-85 been completed in compliance with CEQA and the State CEQA Guidelines. The City Council further finds and determines that the Addendum reflects the City's independent judgment. SECTION 3. Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Addendum, the City Council finds that an addendum is the appropriate document for disclosing the changes to the subject property, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: (a) The proposed development does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. (b) There is not a substantial change with respect to the circumstances under which the proposed development will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. (c) New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. SECTION 4. The City Council hereby finds that mitigation measures identified in the 2010 EIR remain applicable to the Transit Zoning Code. These findings are laid out more specifically in the Mitigation Monitoring and Reporting Program ("MMRP") attached hereto as Exhibit A. The City Council therefore hereby adopts those mitigation measures identified as remaining applicable to the Transit Zoning Code, through the MMRP attached hereto and incorporated herein as Exhibit A. Applicant shall be solely responsible for the implementation of all mitigation measures in the MMRP applicable to any aspect of the proposed mixed -use development project. SECTION 5. The City Council hereby approves and adopts the 2020 Third and Broadway Addendum related to Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Density Bonus Agreement No. 2020-01, attached hereto and incorporated herein as Exhibit B. SECTION 6. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, 75A-86 authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. SECTION 7. The City Council directs staff to prepare, execute and file a CEQA Notice of Determination with the Orange County Clerk's Office within five working days of the City Council's approval of Site Plan Review No. 2020-01, Site Plan Review No. 2020-02, Density Bonus Agreement No. 2020-01 and Disposition and Development Agreement for the Third and Broadway Mixed -Use Development Project. SECTION 8. The 2010 EIR and the 2020 Addendum, and any other documents and materials that constitute the record of proceedings upon which these findings have been based are on file, are incorporated herein by reference and are available for public review at Santa Ana City Hall, Planning and Building Agency, M20, 20 Civic Center Plaza, Santa Ana, California 92701. The custodian of these records is Daisy Gomez, City Clerk for the City. SECTION 9. This resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this resolution. ADOPTED this day of 12020. APPROVED AS TO FORM: Miguel A. Pulido Mayor 75A-87 Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney AYES: Councilmembers NOES: Councilmembers IG1:i..11/G11►�MidtM, I1Laiilm 1►[��r�:7X.9�►���i.1RiTalPiLa'ii1.T-�� 75A-88 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 75A-89 EXHIBIT A MITIGATION MONITORING AND REPORTING PROGRAM The Mitigation Monitoring and Reporting Program (MMRP) is available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and- monthly-development-project-reports/3rd-and-0 Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana, CA 92701 75A-90 EXHIBIT B THIRD AND BROADWAY EIR ADDENDUM The Third and Broadway Project EIR Addendum and Technical Appendices are available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and- monthly-development-protect-reports/3rd-and-0 Or by visiting: Planning and Building Agency — Planning Division Public Counter 20 Civic Center Plaza Santa Ana. CA 92701 75A-91 RESOLUTION NO. 2020-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING DENSITY BONUS AGREEMENT NO. 2020-01, SITE PLAN REVIEW NO. 2020-01, AND SITE PLAN REVIEW NO. 2020-02 AS CONDITIONED FOR A NEW MIXED -USE AND HOTEL DEVELOPMENT LOCATED AT 201 WEST THIRD STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Michael Harrah, representing Caribou Industries Inc. (hereinafter referred to as "Applicant'), is requesting approval of Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, and Site Plan Review No. 2020- 02, as conditioned to allow the construction of a new mixed -use development consisting of 171 residential units, 13,419 square foot commercial development and a 75-room hotel at 201 West Third Street. B. The Transit Zoning Code was adopted in 2010 as a result of interest in developing transit -oriented mixed -use residential and commercial projects in its project area. The Transit Zoning Code was amended in 2019 to modernize and refine development standards to further these interests. The regulating plan, which establishes land uses and development standards, allows a variety of housing and commercial projects, including mixed -use residential communities, live/work units, hotels, and offices. C. The California Density Bonus Law (California Government Code Section 65915 et seq.) allows developers to seek increases in base density for providing on -site housing units in exchange for providing affordable units on site. To help make constructing on -site affordable units feasible, the law allows developers to seek incentives/concessions or waivers that would help the project be built without significant burden and without detriment to public health. D. On September 28, 2020, the Planning Commission of the City of Santa Ana held a duly noticed public hearing regarding Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01 and Site Plan Review No. 2020-02 at that time considered all testimony, written and oral and recommended City Council approval of the entitlements. E. On October 20, 2020, the City Council of the City of Santa Ana held a duly noticed public hearing regarding Density Bonus Agreement No. 2020-01, 75A-92 Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Disposition and Development Agreement at that time considered all testimony, written and oral. F. Sections 41-2007 and 41-593.5 of the Santa Ana Municipal Code (SAMC) requires a review by the Planning Commission and City Council of all plans for developments of over four stories within the Transit Zoning Code (Specific Development No. 84) to ensure the project is in conformity with the overlay zone plan. G. The zoning designation for the subject property is Specific Development No. 84. Downtown sub -zone. H. The City Council determines pursuant to SAMC Sections 41-2007 and 41- 593.5, that the mixed -use and hotel project is in compliance with all applicable development standards outlined within the Specific Development (SD No. 84/Transit Zoning Code), with the exception of required on -site residential parking, maximum stories, open space and massing which, pursuant to the California Government Code sections 65915 through 65918, may be reduced through approval of the requested Density Bonus Agreement application and off-street parking subject to approval of Variance No. 2020-02. The City Council determine that the following findings, which must be established in order to grant this Density Bonus Agreement with deviations pursuant to SAMC Section 41-1607, have been established for Density Bonus Agreement No. 2020-01 to allow construction of the proposed project: 1. That the proposed development will materially assist in accomplishing the goal of providing affordable housing opportunities in economically balanced communities throughout the city. The proposed development will provide 152 market -rate rental units and 19 very -low income affordable units, contributing toward the City's rental housing stock to serve the needs of diverse and underserved populations. 10 studios, 6 one -bedrooms and 3 two -bedrooms very -low income units will be evenly dispersed throughout the development. The area in which the project is proposed, the Transit Zoning Code plan area, currently contains several entitled or constructed affordable and market -rate residential communities. The construction of this project will contribute toward an economically and demographically balanced community by providing housing for different demographic and income levels in an area rich with employment 75A-93 opportunities, commercial development, market -rate housing and close to many public transportation options such as the under -construction OC Streetcar, bus routes and the Santa Ana Regional Transportation Center. 2. That the development will not be inconsistent with the purpose of the underlying zone or applicable designation in the general plan land use element. The project site is located in an area already identified in both the City's Zoning Code (the Transit Zoning Code) and General Plan (the Land Use and Housing elements) for new residential communities. The application includes a request for a 35-percent density bonus in exchange for providing eleven percent very -low income units on -site (19 units). Under the State's Density Bonus Law, developers providing eleven percent very -low income units may request a numerical density bonus of 35 percent from the base density (California Government Code Section 65915 (f)(2)). The General Plan land use designation for Downtown is District Center which allows 90 dwelling units per acre and maximum floor area ratio (FAR) of 3.0. Based on the site area of 1.41 acres at 90 dwelling units per acre 127 units are allowed. In exchange for providing eleven percent very -low income units on -site an additional 45 units are permitted through a density bonus. Therefore, the project proposes a total of 171 units with a total FAR of 4.2 for the development site. Application of the floor area ratio maximum would physically preclude development of on -site affordable housing units. Furthermore, California Government Code Section 65915 (f)(5) granting a density bonus shall not require a General Plan Amendment. With approval of concessions and waivers the project is consistent with the underlying zoning development standards and General Plan. Additionally, the project supports several goals and policies within the General Plan land use element. 3. That the deviations are necessary to make it economically feasible for the Applicant to utilize a density bonus authorized for the development pursuant to section 41-1603. The proposed project requires waivers, two incentives/concessions, and for a reduction in required on - site (off-street) parking. The deviations are described as follow: 75A-94 (a) Waiver from the General Plan Land Use Element, Downtown District Center maximum FAR of 3.0. The FAR for the entire development site is 4.2. Capping the FAR at 3.0 would physically preclude development of the project and on -site affordable housing units [Cal. Gov't Code Sec. 65915 (e)(1)]. Limiting the FAR may preclude additional stories to accommodate the affordable units and density bonus units which make the project financially feasible for the developer. (b) Waiver from Santa Ana Municipal Code Sec. 41-2011(a) — Height. The Line Block Building Type sets a maximum height of 10-stories while 16 stories are proposed. The additional stories are needed to provide affordable housing units on -site and to make the construction of a high-rise development financially feasible. In addition, the requirement to provide 211 public parking spaces on site adds an additional five stories to the overall development [Cal. Gov't Code Sec. 65915 (e)(1)]. (c) Concession 1 from Santa Ana Municipal Code Sec. 41- 2023(f) Open Space, the project's open space is designed as open roof decks rather than courtyards or forecourt. Construction of a courtyard or forecourt would substantially increase engineering costs and the development would need to be redesigned completely reducing the number of units that could be constructed on the site therefore, reducing the number of onsite affordable housing units that would result from the project [Cal. Gov't Code Sec. 65915 (d)(1)]. (d) Concession 2 from Santa Ana Municipal Code Sec. 41- 2023(i) Massing a reduction in massing at the third level would result in a reduction in public parking or redesigning and engineering the project which would reduce the financial feasibility of redeveloping the site and providing 19 onsite very -low income units [Cal. Gov't Code Sec. 65915 (d)(1)]. (e) Parking: Constructing 2.0 parking spaces per residential unit and 0.15 guest parking spaces per residential unit on the project site would require the developer to construct additional levels of parking either above- or below -grade, resulting in increased construction costs and/or a loss of an entire level of residential units. The City has identified the Transit Zoning Code area for high -intensity, mixed - use, transit -oriented development in order to reduce 75A-95 demands for parking and traffic impacts. Pursuant to California Government Code Section 65915 (p)(1) residential developments providing eleven percent on - site affordable housing units at very -low income levels are entitled to provide on -site parking at the ratio of 1 stall for studio or one -bedroom units, and 2 stalls for two - bedroom units, inclusive of handicapped and guest parking. To address the parking reduction requested by the applicant pursuant to State Housing Law, the Applicant prepared a parking study and parking management plan (PMP). The PMP adequately outlines measurable means to provide additional parking through additional onsite valet parking, offsite parking, or a combination thereof, raising the effective parking ratios to a minimum of 2.15 parking spaces per residential unit if fully implemented. Section 2. The Applicant shall indemnify, protect, defend and hold the City and/or any of its officials, officers, employees, agents, departments, agencies, authorized volunteers, and instrumentalities thereof, harmless from any and all claims, demands, lawsuits, writs of mandamus, and other and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and such other procedures), judgments, orders, and decisions (collectively "Actions"), brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any permit or approval issued by the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by the voters of the City) for or concerning the project, whether such Actions are brought under the Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act, Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution, statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and that Applicant shall reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the Applicant of any Action brought and City shall cooperate with Applicant in the defense of the Action. Section 3. In accordance with the California Environmental Quality Act (CEQA), the City Council of the City of Santa Ana has, as a result of its consideration of the record as a whole and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, Environmental Review No. 2019-85 meets all the requirements of CEQA: 75A-96 Based on the substantial evidence set forth in the record, including but not limited to the 2010 EIR and the 2020 Third & Broadway Addendum, the City Council finds that an addendum is the appropriate document for disclosing the changes to the subject properties, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 requiring subsequent environmental review have occurred, because: A. The project does not constitute a substantial change that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. B. There is not a substantial change with respect to the circumstances under which the project will be developed that would require major revisions of the 2010 EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects. C. New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the 2010 EIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt. Section 4. The City Council of the City of Santa Ana, after conducting the public hearing, hereby approves Density Bonus Agreement No. 2020-01, Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 as conditioned in Exhibit A, attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for City Council Action dated October 20, 2020, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. "'Signatures on following page"' ADOPTED this day of 12020. 75A-97 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney LIM Ryan O. Hodge Assistant City Attorney NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2020-xx to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 75A-98 EXHIBIT A Conditions for Approval for Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Density Bonus Agreement No. 2020-01 Site Plan Review No. 2020-01, Site Plan Review No. 2020-02 and Density Bonus Agreement No. 2020-01 are approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The Applicant must comply with each and every condition listed below Prior to exercising the rights conferred by this site plan review. The Applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the site plan review. A. Planning Division 1. All proposed site improvements must conform to the Development Project Review approval of DP No. 2019-32 and the staff report exhibits. 2. Any amendment to this site plan review, including modifications to approved materials, finishes, architecture, site plan, landscaping, unit count, mix, and square footages must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the site plan review must be amended. 3. A residential property manager shall be on site at all times that the project is occupied and the developer and on -site management shall at all times maintain a 24-hour emergency contact and contact information on file with the City. 4. The Project shall implement the Parking Management Plan dated September 9, 2020. 5. The Project shall include a publicly -accessible amenity area available to the public on a semi -regular basis, upon agreement by the public and Applicant, but in no instances less than four times per year for community -serving purposes. Any revisions to the proposed projects to include said amenity area, or any required modifications to accommodate said amenity area, shall be reviewed for substantial conformance during Building Division plan check. 6. All mechanical equipment shall be screened from view from public and roof deck amenity areas. 75A-99 7. Prior to issuance of any building permits, the Applicant shall submit a detailed rooftop plan to the Planning Division for review and approval demonstrating that the unoccupied lower level rooftops, visible from the building levels above, incorporate artificial green roofs and water infiltration planters as shown on the DP No. 2019-32 plans. 8. Prior to the issuance of any building permits, the Applicant shall submit a final detailed amenity plan to the Planning Division for review and approval. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for amenity decks and plaza areas as well as an installation plan. The exact specifications for these items are subject to the review and approval by the Planning Division. 9. Prior to issuance of building permits, the Applicant shall submit a construction schedule and staging plan to the Planning Division for review and approval. The plan shall include perimeter construction signage with a contact phone number, construction hours, staging areas, parking and site security/screening during project construction. 10. Prior to installation of landscaping, the Applicant shall submit photos and specifications of all trees to be installed on the project site to the Planning Division review and approval. Specifications shall include, at a minimum, the species, box size (24 inches minimum), brown trunk height (10-foot minimum), and name and location of the supplier. 11. After Project occupancy, landscaping and hardscape materials must be maintained as shown on the approved landscape plans. 12. A Resident Storage Plan shall be provided for the Project prior to occupancy. Storage shall be available at no cost to the residents. 13. Prior to Certificate of Occupancy issuance, public art shall be installed on the Project site at a value of one-half of one percent (0.5%) of the total valuation of both buildings. The art shall be installed on the north, east, west and south elevations of the mixed -use project and on the south elevation of the hotel project in the areas depicted on the DP No. 2019-32 plans. The selection, design, and installation of the art shall be subject to review and approval by the Planning and Building Agency, the Community Development Agency, and the Applicant. 14. Prior to Certificate of Occupancy issuance, a Property Maintenance Agreement must be recorded against the property. The agreement will be subject to review and applicability by the Planning and Building Agency, the Community Development Agency, the Public Works Agency, and the City Attorney to ensure that the property and all improvements located thereupon are properly maintained, Developer (and the owner of the property upon which the authorized use and/or authorized improvements are located if different from the Applicant) 75A-100 shall execute a Maintenance Agreement with the City of Santa Ana which shall be recorded against the property and which shall be in a form reasonably satisfactory to the City Attorney. The Maintenance Agreement shall contain covenants, conditions and restrictions relating to the following: (a) Compliance with operational conditions applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.); (b) Compliance with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, enforcement of the parking management plan, and/or restrictions on certain uses, (c) Ongoing compliance with approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable; (d) Ongoing maintenance, repair and upkeep of the property and all improvements located thereupon (including but not limited to controls on the proliferation of trash and debris about the property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable); (e) If Developer and the owner of the property are different (e.g., if the Applicant is a tenant or licensee of the property or any portion thereof), both the Applicant and the owner of the property shall be signatories to the Maintenance Agreement and both shall be jointly and severally liable for compliance with its terms. (f) The Maintenance Agreement shall further provide that any party responsible for complying with its terms shall not assign its ownership interest in the property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties, obligations and responsibilities set forth under the Maintenance Agreement. (g) The Maintenance Agreement shall contain provisions relating to the enforcement of its conditions by the City and shall also contain provisions authorizing the City to recover costs and expenses which the City may incur arising out of any enforcement and/or remediation efforts which the City may undertake in order to cure any deficiency in maintenance, repair or upkeep or to enforce any restrictions or conditions upon the use of the property. The maintenance agreement shall further provide that any unreimbursed costs and/or 75A-101 expenses incurred by the City to cure a deficiency in maintenance or to enforce use restrictions shall become a lien upon the property in an amount equivalent to the actual costs and/or expense incurred by the City. (h) The execution and recordation of the Maintenance Agreement shall be a condition precedent to the issuance of final approval for any construction permit related to this entitlement. 75A-102 EXHIBIT 2 75A-103 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-OS/TPM No. 2020-02 201 West Third Street - Third & Broadway Mixed -Use Development P —,Cz=� la+il- ,I. 1 11 2019 Aerial Zoning mn ore@;l wtixn �,a Cnmmuniry Lwnmertul fvmmuniryfnmmertul-Museum a.mtt ■ General Comme.dal � sn„xn Man scmcwnme2lalDm�la Gmremmerrc Lerner 9�eAmilY Pesiience iwo-Fnmily WesNence Multiple -Family Aesidenxe r S a 1 SpedfxDrvelnPment Mn. 39 y ���■■■��SsswssppPce-.eeecxxKarra.c DoDDD .ee.r„eeeml1Ioppp mmeenpna,ecccnnnnnnpnnp.... a Sr, x,D—Pmm[Mn W Dm11,-nn4 vawa3 eermw rs 0w,De Mnc j Ll �_; -=3 �}�J f'IXW � �t. �4I� • 'I# +!1 I ;JL5 0 fee N _ Exhibit 2 - Vicinity Zoning & Aerial View V•k 75A-104 CO 2020 Diaital Mao Products. All rights reserved. EXHIBIT 3 75A-105 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02NAR No. 2020-05/FPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 3 — Site Photo 75A-106 EXHIBIT 4 75A-107 o III®_ IIIIIIIIIII IIIIIIIIIIIL,AN . - z. ...: a ..-. `+•�r► , c.�c� e.�, a �[iVr► I.��...�`. -,�p � i WINi_=� w nvmuvuca DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 4 — Site Plan 75A-108 EXHIBIT 5 75A-109 S dm Al(578 Sn A2(6s0 SnA3(722 SF S WA4(547 Sf 1 BR Bt (60 SF) 1 BR B] (660 SF) 1 BR B2 (B60 SF) 1 BR 04 qW SF) E 1 BR "" 1 BR B6 (990 SF) B] (962 SF) DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 5 — Residential Unit Floor Plans 75A-110 :anti (+,W25F5 TE 1 MI_ P M..P19,63Y5RP 11,61659 z as cx h,azs SD ION, DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 5 — Residential Unit Floor Plans 75A-111 EXHIBIT 6 75A-112 �vv SYCAMOPEST f v suars vmvm i soul 3 Enlarged Typical Storal Elevation Septamber10, 2020 Canhou lndusti�es lab&B,oedwey 16160 DBANo.2020Ol/SPRNo.2020Ol/SPRNo.202U022VARNo. 2020051rPM No. 2020 02 201 West Third Street Third & Broadway MixedUseDevelopment Exhibit — Mixed -Use Building Elevations Design Residential Tower Elevations stutlioneleven 22 75A-113 2 West Elevation 'low B +Y a YIV j if -v -� gim, soptombor 10 20201 caribou lnd-trios I and&Bmadway 115150 Third & Broddvoay MixedUseDevelopment Exhibit 6-Mixed-Use Building Elevations � Inund r a Design Residential Tower Elevations 2020 02 201 West Third Street studionaleven 23 75A-114 �� �1111l111®IRI■1111! II STORY fvpV 20ITl, BED BWBM BUILDING N BN0AIwAY Uasign Residential Tower Elevations to.2020Ol/SPRNo.202002NARNo.2020T09rPM No. 2020 02 201 west Third Street stuaioneleven 24 Third & Broadway Mixed -Use Development Exhibit 6—Mixed-Use Building Elevations 75A-115 A East Elevation 11 III! - I!- -® I1msign Residential Tower Elevations DBANo.2020O1/SPRNo.2020O1/SPRNo.2020.02NARNo.202U09rPM No. 2020 02 201 West Third Street studoneleven 25 Third & Broadway MixedUseDevelopment Exhibit 6—Mixed-Use Building Elevations 75A-116 11:1hiA 75A-117 I South Elevation September 10, 20201 Caribou lndratra, 13rd&Broadway 115150 Third& Broadway Mixed Use Development w studio_ne_leven 26 Exhibit] — Hotel Elevations 75A-118 35i0RI ES Ain, 40ED B N PLASTER &DARK GREY BRICK BDILDINO Septamber10, 2020 Canhou lndusti�es 3b&Dmedwe>" 15160 DBANo.202601/SPRNo.202001/SPRNo.202002/VARNo. 2020 TVTPM No. 202602201 West Third Street 1 herd & Broadway Mixed Use Development Exhibit T — Hotel Elevations Design Hotel Tower Elevations studioneleven 27 75A-119 EXHIBIT 8 75A-120 cli ......��.. ��■ [_i 1 DBA No. 2020 Ol/SPR No. 2020 Ol/SPR No. 202602/VAR No. 2020 09rPM No. 2020 02201 West Third Street Third & Broadway Mixed -Use Development Exhibit 8 - Mixed -Use Development Rendering Design pmject Vs. studioneleven 34 75A-121 rr r �y �1Fs iT 75A-122 DBH No. 2020L11SPR No. 2020-011SPR No. 202042NAR No. 2020L51TPM No. 202042 201 West Third Street Third & Broadway Mixed Use Development September 10, 20201 Caribou l routines 13rd&Broadway 115150 Exhibit 9-Hotel Rendering studioneleven 35 75A-123 DBH No. 2020411SPR No. 2020411SPR No. 2020-02NAR No. 2020451TPM No. 202042 201 West Third Street Third & Broadway Mixed -Use Development •wS 1•••1 � Street Rendering September 10, 2020 1 caribou Industries 13rd & Broadway 1 15150 studioneleven 36 75A-124 M " 'mm "; v7ww� 75A-1 25 0 BUILDING HEIGHTS ✓ 0-35'-0" O 35' D" - 50'-0" 50'-0" - 100'-0" - 150'-0" - 200'-0" 75A-126 EXHIBIT 9 75A-127 �IIIII111�1 _�_ •�I M� Fev� I�II9I11 .S9W 9 d Fkw C .Nb Rod Dock Pon 5M F m E...t Rod D. h Ple. N.th..se Level Pool Deck Plan DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 9 — Mixed -Use On Site Open Space 75A-128 u 3a0 STaLLT • �nnuu I {. IlLllk� ' C u�- II �JUj�e.d 1, I'll oejr leh •: ,f`el'". ]aD STRGL Hotel ]rd Roo, Conn m Dock a Typical Private Patio Flotol 10th Floor Bar l Lounge Deck plan DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 9 — Hotel On Site Open Space 75A-129 EXHIBIT 10 75A-130 Conformance to Development Parcel 1 Mixed -Use Development Required by the Transit Zoning Code Provided Lined Block Building Type Height (Table DT-1): Approval of a Density Bonus Agreement Concession 1 1. Minimum - 2 stories Required per California Government Code Section 2. Maximum - 10 Stories 65915 d 2 B ; 16 Stories Parking Driveway Width (Table DT-5): Complies, 2-Way Driveways: 20'0" 2-Way Driveway: 20'0" minimum and 25'0" maximum. Parking (Table DT-6): Approval of a Density Bonus Agreement Parking per 1. Standard: 2 stalls per unit minimum and 0.15 stalls per California Government Code Section 65915(p)(1); unit guest, and 1/400 square feet of commercial space. Residential: 196 stalls (Per Affordable Housing Plan, State o Requires (402 total): 342 residential space, 26 of Califomia Government Code Section 65915(p)(1): guest spaces and 34 commercial parking 0 Studio to 1 bedroom — 1 stall spaces required • 2 to 3 bedrooms — 2 stalls Commercial: 0 Stalls (1/400 sf) • Per Parking Management Plan, up to 318 onsite parking spaces may be provided with valet service (1.85 per unit onsite parking ratio) • Per Parking Management Plan, up to 50 additional parking spaces available offsite (2.15 per unit parking ratio Setbacks (Table DT-2): Complies; never more than 10'9' maximum. 1. Front Yard — 0'0" min, 0'0" max 2. Street Side — 0'0" min, 10'0" max 3. Side Yard — 0'0" min, no max 4. Rear Yard — 15'0" min, no max 5. Alley Yard — 3'0" min no max Frontage Type (Table DT-4): Complies; 1. Arcade — Min 50% of Frontage Broadway: 100% Shopfront 2. Gallery — Min 50% of Frontage 3rd Street: 100% Shopfront 3. Shopfront — Min 75% of Frontage Sycamore Street: 100% Shopfront 4. Forecourt — Max 50% of Frontage (remainder of frontage per permitted types) 5. Stoop — Max 50% of Frontage Building Types Allowed (Table BT-1): Complies; Lined Block Flex Block, Lined Block, Stacked Dwellings, Courtyard Housing, Live -Work, Tuck Under Lined Block Width and Depth (Table BT-1): Complies; Width — Min 125'0" and Max 300'0" 1. Width — 276'0" Depth —Minimum 100'0" 2. Depth — 145'0" Lined Block Access Standards (Sec. 41-2023): Complies; All requirements met and shown in plan sheets- 1 - The main entrance to each ground floor shall be directly from the street. 2. Entrance to residential portions of the building shall be through a dedicated street level lobby, or through a dedicated podium lobby accessible from the street of through a side yard. 3. Access to each unit above the second level, not accessed through a podium, shall be through an interior corridor of at least 6'0" with recessed doors or seating alcovesloffsets at least every 100'0". 4. Each level of the building shall have access to the garage via an elevator. DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development 7v5A-131 Required by the Transit Zoning Code Provided Lined Block Parking Standards (Sec. 41-2023): Complies; The building provides parking via an 1. All parking shall be in an underground or above- underground and above -ground garage. All dwellings will ground garage, tuck under parking, or combination have indirect access to parking stalls- thereof- 2- Dwellings shall have indirect access to their parking stall(s)- Lined Block Open Space Standards (Sec. 41-2023): Approval of a Density Bonus Agreement per California 1. The common open space shall be designated as a Government Code Section 65915(e)(1); courtyard, or in the front as a forecourt. This area shall be equal to 15% of the lot and shall be open to 1. Required (Common + Private): 13,567SF the sky. Provided (Common + Private): 18,208 SF 2. Minimum courtyard width of 20'0" when running EW 2_ Complies with dimensions and 15'0" when running NS. 3. Complies with dimensions 3. 20'0" wide courts only permit architectural projections 4. 55 units do not have private open space and the on two opposing sides. minimum dimension if 5' in some directions. 4. Private open space for each dwelling unit and no less 5. See #1 above than 50 SF and not less than 6'0" in each direction. 5. Private open space can be substituted for common open space or common interior space at an equivalent square footage. The minimum dimension of this space shall be 15'0" in each direction. Lined Block Landscape Standards (Sec. 41-2023): 1. N/A 1. If a front yard is present, one 24" box tree per 25'0" 2. Plan check lineal feet shall be provided. 3. Complies 2. Six (6) 5-gallon shrubs and ten (10) 1-gallon size 4. N/A shrubs or ground cover per required tree. 5. Plan check 3. Courtyards located above garages shall avoid the 6. N/A sensation of forced podium hardscape. 7. N/A 4. Trees in the front yard may not exceed 12-15' in height at maturity and must be suitable for built in concrete planters or containers with a 36-inch width. 5. One 36" box tree is required per courtyard that meets the minimum dimensions. For courtyards that exceed minimum dimensions, two or more 24-inch box small size trees may be substituted. 6. If a rear yard is present, at least one (1) 36" box tree per 30'0" lineal feet shall be planted. 7. If a side yard is present, at least one (1) 24" box tree per 30'0" lineal feet shall be provided - Lined Block Frontage Standards (Sec. 41-2023): All requirements met and shown in plan sheets. Entry door oriented to street/courtyard when fronting to one. Service rooms -oriented backing to corridors. Lined Block Building Size and Massing Standards Approval of a Density Bonus Agreement Concession 2 (Sec. 41-2023): Required per California Government Code Section 1-4 (Standards Noted and Met) 65915(d)(2)(B); 5. Max Ratios of each Story: a.Ground Floor — 100% Building Max Ratios: 14 Complies b. Level 2 — 100% c. Level 3-5 — 85% a. Ground Floor — 99% d.Level 6+-85% b. Level2-99% c. Level 3 — 94% d. Levels 4- 16 — 50 to 85% DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development 7 JA-132 Conformance to Development Parcel 2 Hotel Development Required by the Transit Zoning Code Provided Flex Block Building Type Height (Table DT-1): Complies, 10 Stories 1. Minimum - 2 stories 2. Maximum - 10 Stories Parking Driveway Width (Table DT-5): Complies; 2-Way Driveway: Project's driveway 23'6" and 1-Way Driveway: 8'0" minimum and 12'0" maximum 1-Way Driveway 12' 2-Way Driveway: 20'0" minimum and 25'0" maximum. Parking (Table DT-6): Variance Required to provided parking per SAMC 1. Standard: 1/400 square feet of commercial space. Section 41-1344 Hotels and Motels. 1 space per guest 0 158 parking spaces required room, plus 1 space for each 10 rooms and use of mechanical stacker system; o 83 spaces provided via 4 ADA spaces, 42 mechanical stacker spaces and 37 reserved valet parking spaces within mixed -use parking structure Setbacks (Table DT-2): Complies; nevermore than 10'0" maximum- 1 - Front Yard — 0'0" min, 0'0" max 2. Street Side — 0'0" min, 10'0" max 3. Side Yard — 0'0" min, no max 4. Rear Yard — 15'0" min, no max 5. Alley Yard — 3'0" min, no max Frontage Type (Table DT-4): Complies; 1. Arcade — Min 50% of Frontage 3rd Street: 100% Shopfront 2. Gallery — Min 50% of Frontage Sycamore Street: 100% Shopfront 3. Shopfront — Min 75% of Frontage 4. Forecourt — Max 50% of Frontage (remainder of frontage per permitted types) 5. Stoop — Max 50% of Frontage Building Types Allowed (Table BT-1): Complies; Flex Block Flex Block, Lined Block, Stacked Dwellings, Courtyard Housing, Live -Work, Tuck Under Flex Block Width and Depth (Table BT-1): Complies; Width — Min 75'0" and Max 1. Width — 1560" Depth —Minimum 100'0" 2. Depth — 145'0" Flex Block Access Standards (Sec. 41-2022): Complies; All requirements met and shown in plan sheets. 1. The main entrance to each ground floor shall be directly from the street. 2. Entrance to residential portions of the building shall be through a dedicated street level lobby, or through a dedicated podium lobby accessible from the street of through a side yard- 3- Access to each unit above the second level, not accessed through a podium, shall be through an interior corridor of at least 6'0" with recessed doors or seating alcoves/offsets at least every 100'0". 4. Each level of the building shall have access to the garage via an elevator. Flex Block Parking Standards (Sec. 41-2022): Complies; The building provides parking via an 1. Required parking shall be accommodated in an underground and above -ground garage. All dwellings will underground garage, surface parking, tuck under have indirect access to parking stalls - parking, or a combination thereof. DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development UUi75A 1' 3 Required by the Transit Zoning Code Provided 2. Dwellings shall have indirect access to their parking stalls . Flex Block Open Space Standards (Sec. 41-2022): 1. Required (Common): 5,609 SF 1. The common open space shall be designed as a Provided: 10,367 SF courtyard, or in the front as a forecourt. This area shall be equal to 15 percent of the lot and shall be open to Complies All requirements met and shown in plan sheets. the sky. Courtyards may be located on the ground or on a podium. Side yards may also be formed to provide outdoor patios connected to ground floor commercial uses to serve as additional open space. 2. Minimum courtyard width of 40'0" when running EW and 30'0" when running NS. 3. 40'0" wide courts only permit architectural projections on two opposing sides. 4. Private open space for each dwelling unit and no less than 50 SF and not less than 60" in each direction. 5. Private open space can be substituted for common open space or common interior space at an equivalent square footage. The minimum dimension of this space shall be 15'0" in each direction. Flex Block Landscape Standards (Sec. 41-2022): 1. N/A 1. If a rear yard is present, one 36" box tree per 30'0" 2. Plan check lineal feet shall be provided. 3. Complies 2. Courtyards located over garages shall be designed to 4. N/A avoid the sensation of forced podium hardscape. 5. Plan check 3. Sideyard trees shall be placed to create a particular 6. N/A sense of place at a rate of one (1) 24-inch box tree per 7. N/A 30 lineal feet 4. If a front yard is present, at least one (1) 24-inch box tree per 25 lineal feet shall be planted. The trees may be placed in groups in order to achieve a particular design- 5- One 36" box tree is required per courtyard that meets the minimum dimensions. For courtyards that exceed minimum dimensions, two or more 24-inch box small size trees may be substituted. 6. Six (6) 5-gallon sized shrubs, ten (10) one -gallon size herbaceous perennials/shrubs and turf or acceptable dry climate ground covershall be planted for every required tree- 7- If a rear yard is present, at least one (1) 36" box tree per 30'0" lineal feet shall be planted - Flex Block Frontage Standards (Sec. 41-2022): All requirements met and shown in plan sheets. Entry door oriented to street/courtyard when fronting to one. Service rooms -oriented backing to corridors. Building Size and Massing Standards (Sec. 41-2022): Building Max Ratios- 1-4 (Standards Noted and Met) 1-4 Complies 6. Max Ratios of each Story: a. Ground Floor — 95% a.GroundFloor —100% b. Level2-98% b. Level 2 — 100% c. Level 3 to 10 35 to 61 % c. Level 3-5 — 85% d. Level 6 + — 85% DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development 5 7Ab1 �4 EXHIBIT 11 75A-135 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council Free Recording pursuant to Government Code 27383 DENSITY BONUS HOUSING AGREEMENT This DENSITY BONUS HOUSING AGREEMENT ("Agreement"), made and entered into this day of 2020, by and between the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"), and Caribou Industries, Inc., a Nevada corporation ("Developer"). City and Developer are sometimes referred to collectively as the "Parties" and individually as a "Party." RECITALS A. The City owns that certain property located within the City of Santa Ana, County of Orange, State of California, commonly known as 201 West 3`d Street, Santa Ana, California, 92701, and legally described as set forth in Exhibit A attached hereto and incorporated herein by this reference as if set forth in full ("Property"). B. Based on the reasons identified in the Disposition and Development Agreement between the Parties, the City desires to convey the Property and the Developer desires to accept the Property for the purpose of development of the Project as defined herein. C. Developer is proposing to construct a mixed use commercial and residential development consisting of one -hundred and seventy-one (171) residential rental units and 13,419 square feet of commercial space on the Property, in addition to a parking structure and hotel, as more particularly set forth in Density Bonus Application No. 2020-01 and Site Plan Review No.2020-01 ("Project"). D. Santa Ana Municipal Code sections 41-1500, et seq. ("City Density Bonus for Affordable Housing"), and California Government Code sections 55915, et seq. ("State Density Bonus Law"), set forth a process to provide increased residential densities and/or incentives, concessions, or waivers to property owners or developers who guarantee that a portion of their residential development will be available to tow income, very -low income, or senior (also known as "qualified") households. These regulations are intended to materially assist the housing industry in providing adequate and affordable housing for all economic segments of the community and to provide a balance of housing opportunities for very -low income, low income and senior households throughout the city. DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 11 ,.pprtkity.Bq�s Agreement E. The Project is proposing a total number of one -hundred and seventy-one (171) residential units, including eleven (11) percent (nineteen (19) units) for very -low income households. Accordingly, the Developer is able to seek an onsite parking standards incentive, concessions and waivers pursuant to the California Government Code because the Project will include onsite affordable units. Specifically, pursuant to California Government Code section 65915(p)(1), the Developer is seeking a reduction to provide onsite parking at the ratio of one (1) stall for studio or one -bedroom units, and two (2) stalls for two- to three -bedroom units, a concession for open space, and a concession for massing pursuant to California Government Code section 65915(d)(1), as well as waivers for building height and floor area pursuant to California Government Code Section 65915(e)(1) . F. The Project complies with the affordable housing requirements set forth in the State Density Bonus Law and City Density Bonus for Affordable Housing. For purposes of this Agreement, the Project shall be the "housing development" as defined in the State Density Bonus Law. G. In light of the purpose of the State Density Bonus Law and City Density Bonus for Affordable Housing, and the express provisions of Government Code section 65915(p), the City has determined to grant Developer's application for density bonus and related onsite parking standards incentive, two concessions and waivers. H. This Agreement, and the exhibits attached hereto and incorporated herein by reference, are intended to set forth the terms and conditions for the implementation of the Project's requirement to provide affordable housing units in exchange for receiving the density bonus incentive set forth herein. NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: DEFINITIONS AND EXHIBITS 1.1 Definitions. In addition to the terms that may be defined elsewhere in this Agreement, the following terms when used in this Agreement shall be defined as follows: 1.1.1 "Adjusted for fancily size appropriate to the unit" shall have the meaning set forth by Health and Safety Code Section 50052.5(h). . 1.1.2 "Affordable Rent" means the maximum Monthly Rent that may be charged to and paid by an Eligible Household for the Affordable Units, as required by the terns of this Agreement. The Affordable Rent shall be adjusted to reflect a reasonable utilities allowance for utilities paid by the household using the Santa Ana housing Authority Multi -Family Housing Utility AIlowance Schedule, and shall be updated no less than annually. 75A-137 1.1.3 "Affordable Rent Schedule" means a rent schedule established as of the date of issuance of an occupancy permit (exclusive of tenant utility payments or security deposits) for the required number/percentage of the total number of units in the Project which are to be rented or available for rent to very -low income tenants. Said Affordable Rent Schedule shall be established at the time of the issuance of the occupancy permit ("Initial Rent Schedule") and shall be created in accordance with the Orange County, California Primary Metropolitan Statistical Area ("PMSA") as published by the California Department of Housing and Community Development ("HCD"), adjusted for family size, and shall be updated no less than annually. 1.1.4 "Affordable Units" means nineteen (19) units, which shall be comprised of ten (10) studio units, six (6) one -bedroom units, and three (3) two -bedroom units for Very -Low Income Tenants. Any change to the number or distribution of Affordable Units is subject to City Manager approval. L L5 "Agreement" means this Density Bonus Housing Agreement. 1.1,6 "Base Units" means the one hundred and twenty-seven (127) Units that Developer would be authorized to develop on the Property without application of the State Density Bonus Law. 1.1.7 "City" means the City of Santa Ana, California 1.1.8 "City Council" means the City Council of the City of Santa Ana. 1.1.9 "City Attorney" means the City Attorney for the City of Santa Ana. 1.1,10 "City Manager" means the City Manager for the City of Santa Ana. 1.1.11 "City's Planning Commission" means the Planning Commission for the City of Santa Ana. 1.1.12 "Density Bonus Housing Agreement Term" means the period during which this Agreement shall be in full force and effect, as provided for in Section 6.1 below. 1.1.13 "Density Bonus Units" means the forty-four (44) Units in addition to the Base Units that Developer shall develop pursuant to the terms and conditions of this Agreement, of which Developer would not be entitled to develop without providing the Affordable Units. Pursuant to density allowance in the State Density Bonus Law, Developer would be allowed up to forty-five (45) Density Bonus Units, but has elected to utilize forty-four (44) Density Bonus Units pursuant to the plans submitted by Developer. 1.1.14 "Developer" means Caribou Industries, Inc., a Nevada corporation, and its permitted successors and assigns to all or any part of the Property. 75A-138 1.1.15 "Effective Date" means the date the Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement, pursuant to section 4.1 herein. 1.1.16 "Eligible Household" means a Household whose income does not exceed the qualifying limit for a "very -low income tenant" as defined herein, which means persons and families whose income does not exceed the qualifying limit for very -low income households. 1.1.17 "Household" means all persons residing in a Unit 1.1.18 "Median Income" means the Orange County, California area median income, adjusted for family size appropriate to the unit, as periodically published by HCD. 1.1.19 "Monthly Rent" means the total of monthly payments for (a) use and occupancy of each Affordable Unit and Iand and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, application fees or credit check fees (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or cable service, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. In the event that certain utility charges are paid by the landlord rather than the tenant, no utility allowance shall be deducted from the rent for that type of utility charge. 1.1.20 "Project" means that certain mixed use commercial and residential development as more particularly described in Recital B and Section 2 of this Agreement. 1.1.21 "Property" means that certain real property more particularly described in the legal description in Exhibit A and improvements thereon. 1..22 "State Density Bonus Law" means Government Code sections 65915, et seq., as they exist on the Effective Date. 1.1.23 "Unit" means a residential dwelling unit within the Project to be constructed by Developer pursuant to this Agreement. 1.1.24 "Unrestricted Units" means the Units within the Project to be constructed by Developer to a Household without restriction. 1.1.25 "Very -Low Income Tenant' means persons and families whose income does not exceed fifty (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: 75A-139 1.21 Exhibit A — Legal Description of the Property 1.2.2 Exhibit B — Tenant Verification 1.2.3 Exhibit C — Annual Tenant Recertification 1.2.4 Exhibit D — Annual Rental Housing Compliance Report 1.2.5 Exhibit E — Notice of Affordability Restrictions on Transfer of Property 1.2.6 Exhibit F — Parking Management Plan 1.2.7 Exhibit G — Map of Location of Initial Affordable Units 1.2.8 Exhibit H— Density Bonus Setup Fee 2. DEVELOPMENT OF THE PROPERTY 2.1 Proiect. Developer shall develop, operate, and maintain the Property as a one - hundred and severtt -one 171 Unit mixed use commercial and residential development, with nineteen (19) Affordable Units for Very -Low Income Tenants. 2.2 Density Bonus. The Project shall have one -hundred and seventy-one 171 Units, including nineteen 19 Affordable Units, to be rented, occupied, operated, and maintained pursuant to the terms and conditions of this Agreement. Developer understands and agrees that Developer is utilizing a thirty-five percent (35%) density bonus increase provided by the State Density Bonus Law (127 Base Units x 35% = 45 State Density Bonus Units) for a total of 171 units. Although Developer has a right to construct up to forty-five (45) State Density Bonus Units on the Property, Developer has elected to construct or develop, or otherwise claim a right to construct or develop, no more than forty-four (44) State Density Bonus Units on the Property. 2.3 Development Concessions Incentives, and Waivers. As set forth in the City entitlements, Developer petitioned for and is hereby granted the following concessions, incentives, and waivers as part of the approval of Density Bonus Agreement No. 2020-01 for the Project: 2.3.1 The onsite parking standards for the Project shall be reduced from 2.15 parking spaces per unit to 1.15 spaces per unit pursuant to California Government Code sections 65915(p)(1), which provides onsite parking at the ratio of one (1) stall for studio or one -bedroom units, and two (2) stalls for two- to three -bedroom units, for a total of 196 onsite parking spaces for the Project. 2.3.2 The General Plan Land Use Element Downtown District Center floor area ratio maximum of 3.0 shall be waived in accordance with Government Code Section 65915(e)(1), as such a maximum floor area for the development site of 4.2 with floor area as defined by California Government Code Section 65917.2(a)(2) shall be permitted for the development site. 75A-140 2.3.3 The Santa Ana Municipal Code Section 41-2011(a) Lined Block Building Type 10-story maximum development standard for this Project shall be waived in accordance with Government Code Section 65915(e)(1), as such sixteen stories shall be a permitted for the Project. 23.4 The Santa Ana Municipal Code Section 41-2023(f) Open Space development standard for this Project shall be modified in accordance with Government Code Section 65915(d)(1), as such the common open space shall be provided as roof decks on various building levels for the Project. 2.3.5 The Santa Ana Municipal Code Section 41-2023(i) Massing development standard for this Project shall be modified in accordance with Government Code Section 65915(d)(1), as such the massing ratio for level three shall be permitted at 94 percent for the Project. 2.4 No Further Concessions, Incentives, or Waivers. Developer acknowledges and agrees that the concessions, incentives, and waivers set forth in section 2.3 above fully satisfies any duty City may have under the Santa Ana Municipal Code, the Density Bonus Law, or any other law or regulation to provide any development incentive or to waive any building, zoning, or other requirement in return for providing Affordable Units. By this Agreement, Developer releases any and all claims Developer may have against City in any way relating to or arising from City's obligation to waive requirements of or provide development incentives pursuant to any state, federal, or local law, rule, or regulation applicable to the Project. 2.5 Unrestricted Units. The Project, for purposes of this Agreement, may have no more than one -hundred and fifty-two (152) Unrestricted Units comprised of eighty-five (85) studio units, forty-five (45) one -bedroom units and twenty-two (22) two -bedroom units. Any change to the unit distribution of the Unrestricted Units may affect the comparability of the Affordable Units and is subject to City Manager approval. 2.6 Affordable Units, The Project, for purposes of this Agreement, shall have no less than nineteen (19) Units, which shall be comprised of ten (10) studio units, six (6) one -bedroom units, and three (3) two -bedroom units, designated as Affordable Units pursuant to the terms and conditions of this Agreement. The Affordable Units shall be consistent with all City approvals, comparable in bedroom distribution and amenities to the Unrestricted Units, and shall be located throughout the Project as required under Santa Ana Municipal Code section 41-1602(c)(6). 2.7 Minimum Development Standards for Affordable Units. 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 provided for any Unrestricted Units. 2.8 Permits and Processing; Compliance with Laws. Developer, 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, Developer shall carry out and perform the development, operation, and maintenance of the Project in conformity with all applicable federal, 75A-141 state, and local laws and regulations, and all conditions of approval issued by the City Council and City's Planning Commission for the Project. Any changes to the Project shall be reviewed by the City to determine compliance with this Agreement. If any changes to the Project shall materially alter the ability of Developer to comply with any terms of this Agreement in City's sole determination, then City shall have the option to declare this Agreement null and void in its sole discretion. 2.9 Relocation Prior to Development of Project. If relocation is required prior to the completion of development of the Project, Developer shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs as may be required to comply with applicable federal and state laws and regulations. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), 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 for relocation assistance, benefits and costs prior to the completion of the development of the Project. 2.10 Local Sourcing Plan. Developer agrees to make a good faith effort to encourage contractors and suppliers to hire and procure locally, to the extent that it is cost effective and does not delay the overall project development schedule. 2.11 Mechanic's Liens• indemnification. Developer shall take all actions reasonably necessary to remove any future 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 Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. Prior to the recording of this Agreement (or memorandum thereof) pursuant to Section 4.1 below, Developer shall provide evidence from the Title Company of any new recordings against the Property or Project. 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. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), 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 Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. AFFORDABILITY 3,1 Total AffordabilitTerm. Each Affordable Unit shall be restricted to use and occupancy by an Eligible Household for a total period of no less than fifty-five (55) years ("Total Affordability Term"). The Total Affordability Term for an Affordable Unit shall commence on 75A-142 the date that the building in which the Affordable Unit is located receives all required occupancy permits from the City. 3.2 Memorializing Commencement of Total Affordability Term. Developer shall keep detailed records of the commencement date of the Total Affordability Term for each Affordable Unit. City shall have the right to review and verify said records to ensure that the commencement date specified by Developer for an Affordable Unit coincides with the date that the initial Affordable Unit received all permits from City required for occupancy of the Unit. In the event that a conflict exists between the date specified by Developer for the commencement of the Total Affordability Term for an Affordable Unit and the date specified by City's issuance of all required permits for occupancy of the Unit, the date specified by City's issuance of all required permits for occupancy of the Unit shall control. 3.3 Levels of Affordability. 3.3.1 Very -Low Income Tenants. Developer covenants that no less than nineteen Affordable Units in the Project shall at all times during the Density Bonus Housing Agreement Term be rented to, or held vacant and available for immediate occupancy by Very -Low Income Tenants, at a rent that does not exceed fifty (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD, including an allowance for utilities. 4. OPERATION OF THE PROJECT BY DEVELOPER 4.1 Payment ofDensity Bonus Setup Fee and Recording ofDocuments. The Developer must pay the Density Bonus Setup Fee in the amount of fifty-six thousand six hundred ninety- seven dollars and twelve cents ($56,697.12) prior to the issuance of building permits for the Project, The amount of the Density Bonus Setup Fee is based on the calculation attached herewith as Exhibit H and incorporated herein by this reference. After the payment of the Density Bonus Setup Fee, but before issuance of building permits for the Project, Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing in recordable form this Agreement. The date of recording of the Agreement shall be the Effective Date of the Agreement. Upon the date of recording, the terms and conditions of this Agreement shall be binding upon and run with the Property and the Project. It is the express intent and agreement between the Parties that this Agreement shall remain binding and enforceable against the Property, the Project, and the Units to ensure compliance with the State Density Bonus Law and City Density Bonus Law, and to ensure the continued supply of Affordable Units in the Project. 4.2 Rental of Units. Upon the completion of construction of the Project and receipt by Developer of all required permits for the occupancy of the Units, Developer shall rent or cause to be rented each Affordable Unit for the Total Affordability Term for such Affordable Unit in accordance with the terms and conditions set forth in this Agreement, which provide among other terms and conditions for the rental of each Affordable Unit at an Affordable Rent to an Eligible Household for the Total Affordability Term. 75A-143 4.3 Location of Affordable Units. During the Density Bonus Housing Agreement Term, the Affordable Units shall be dispersed throughout the Project in accordance with the terms and conditions set forth in this Agreement. The Affordable Units shall be permitted to float among all one -hundred and seventy-one (171) apartment Units in the Project. The units shall be evenly distributed among all levels of the project in the one building that comprises the Project. The location of the first nineteen (19) Affordable Units to be occupied is attached herewith as Exhibit G and incorporated herein by reference. Any future changes in the distribution of the Affordable Units requires prior written approval from the City Housing Division. 4.4 Occupancy Levels. The number of persons permitted to occupy each Affordable Unit shall not exceed the occupancy permitted pursuant to Health and Safety Code section 50052.5(h). In the event that a household residing in an Affordable Unit exceeds the permitted number of persons, then that household shall be placed on a waiting list for the appropriate -sized unit and be eligible for transfer when an appropriate -sized unit becomes available. The household will be placed on the waiting list for up to one -hundred and eighty (180) days. I£ an appropriate - sized unit does not become available during the 180 days, the Developer will have grounds to terminate that household's lease. If the household refuses to transfer to an appropriate -sized unit then the Developer will also have grounds to terminate that household's lease. 4.4.1 Written Notification. Developer shall provide written notification informing the household that: it is over -occupancy; has been placed on a waiting list for up to one -hundred and eighty (180) days; the expiration date of the wasting list; and the terms for terminating the lease. A written status update will be provided to the household at one - hundred and twenty (120) days, ninety (90) days, sixty (60) days and thirty (30) days if applicable. 4.5 Use of the Property. All uses conducted on the Property, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to all applicable provisions of the Santa Ana Municipal Code and other applicable federal, state, and local laws, rules, and regulations. The Project shall at all times during the term of this Agreement be used as an apartment complex and none of the Affordable Units in the Project shall at any time be utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest home, or be converted to condominium ownership. All of the community facilities and any social programs provided to the Project's residents shall be available on an equal, nondiscriminatory basis to residents of all Units at the Project. 4.6 Maintenance. Developer shall, at all times during the term of this Agreement, cause the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of cause of the disrepair. Developer shall be fully and solely responsible for costs of maintenance, repair, addition and improvements. City, and any of its employees, agents, contractors or designees shall have the right to enter upon the Property at reasonable times and in a reasonable manner to inspect the Project. 4.7 Marketine and Resident Selection Plan. Each Affordable Unit shall be leased to Eligible Households selected by Developer who meet all of the requirements provided herein. 75A-144 Prior to Certificate of Occupancy, Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a marketing program and resident selection plan for the leasing of the Affordable Units at the Project ("Marketing Program"). The leasing of the Affordable Units shall thereafter be marketed in accordance with the Marketing Program as the same may be amended from time to time with City's prior written approval, which approval shall not unreasonably be withheld. Upon request, Developer shall provide City with periodic reports with respect to the leasing of the Housing Units. 4,7,1 The Marketing Program shall include, but is not limited to, marketing and community outreach activities, proposed tenant selection criteria, occupancy standards, income requirements, timeline and details for outreach and marketing, data collection, record keeping and monitoring, procedures for complaints, and compliance assessment. Components of the resident selection plan shall include, but are not limited to, the application process, interview procedure, apartment offer and assignment, rejected applications, and wait list management. All requirements set forth herein shall be incorporated in the Marketing Program. 4.8 Rental Lease Agreement. Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a rental lease agreement ("Lease Agreement"). All Lease Agreements must 1) identify the names and ages of all members of the bousehold who will occupy the Affordable Unit; and 2) state that the Household's right to occupy the Affordable Unit is subject to compliance with the Median Income requirements, adjusted for family size appropriate to the unit, as periodically published by HCD. All Lease Agreements must be consistent with the terms contained in this Density Bonus Agreement. 4.8.1 Prohibited Lease Terms. The Lease Agreement may not contain any of the following provisions: (a) Agreement to be Sued. Agreement by the tenant to be sued, to admit to guilt, or to a judgment in favor of the Developer in a lawsuit brought in connection with the lease; (b) Treatment of Property. Agreement by tenant that the Developer may take, hold, or sell personal property of household members without notice to tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing unit after the tenant has moved out of the unit. The Developer may dispose of this personal property in accordance with State law; (c) Excusing Developer of Responsibility. Agreement by the tenant not to hold the Developer of the Developer's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Waiver of Notice. Agreement of the tenant that the Developer may institute a lawsuit without notice to the tenant; (e) Waiver of Legal Proceedings. Agreement by the tenant that the Developer may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; 10 75A-145 (f) Waiver of a Jury Trial. Agreement by the tenant to waive any rights to a trial by jury; (g) Waiver of Right to Appeal Court Decision. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Tenant Chargeable with Cost of Legal Action Regardless of Outcome. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the Developer against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 4.9 Selection of Tenants. 4.9.1 Developer shall be responsible for the selection of tenants for the Affordable Units in compliance with lawful and reasonable criteria and the requirements of this Agreement. 4.9.2 Local preference for Santa Ana residents and workers in tenant selection for the Affordable Units shall be a requirement of the Project. Subject to applicable laws and regulations governing nondiscrimination and preferences in housing occupancy required by the State of California, the Developer shall give preference in leasing the Affordable Units to households that live and/or work in the City of Santa Ana or who have an active Sousing Choice Voucher issued by the Housing Authority of the City of Santa Ana or any other Public Housing Authority. 4.9.3 All applicants will be screened and "lotterized." A waiting list will be created from a lottery generated from the initial pool of rental applications. The waiting list will track applicant name and contact information, lottery number (or designated number after the initial lottery), household income, household size, status of application, and any other information deemed necessary. The waiting list will be maintained as an electronic file and available for audit by the City of Santa Ana in accordance with resident selection procedures as set forth herein. 4.9.4 Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer shall require the tenant(s) to execute a written lease and to complete a Tenant Income Verification Form (in substantially the form attached hereto as Exhibit B) certifying that the tenant(s) occupying the Affordable Unit Ware an Eligible Household and otherwise meet(s) the eligibility requirements established for the Affordable Unit. Developer shall verify the income of the tenant(s) as set forth herein. 4.10 Income Verification and Certification. Developer agrees to make a good faith effort to verify that the income and asset statement provided by an applicant in an income certification is accurate by taking, at a minimum, at least one of the following steps as a part of the verification process: (1) obtain three months consecutive pay stubs for the most recent pay period, (2) obtain an income tax return for the most recent tax year, (3) obtain an income verification form from the applicant's current employer, (4) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or 11 75A-146 (5) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. 4.10.1 Gross Household Income. Gross household income means all income from whatever source from all Adult Household members, which is anticipated to be received during the 12-month period following the date of the determination of Gross Household Income. The applicable sources of income are defined in California Code of Regulations Title 25 Housing and Community Development Section 6914. 4.10.2 Annual Recertification. Developer agrees to recertify household eligibility annually. Notification of Annual Tenant Recertification shall be sent to the household in substantially the form attached hereto as Exhibit C. An Annual Rental Housing Compliance Report ("Annual Compliance Report") shall be sent to the City in substantially the form attached hereto as Exhibit D. The Annual Compliance Report shall be due to the City within 30 days of the anniversary of the commencement of the Total Affordability Term, which is the date that each building receives all required occupancy permits from the City. 4.10.3 Continued Income Oualification and Vacated Affordable Units. If the annual recertification demonstrates that a previously eligible tenant's gross household income exceeds the Median Income for the Affordable Unit, the pertinent actions from the following list must be taken: (a) The Developer may offer to rent the unit to the previously, but no longer, Eligible Household as an Unrestricted Unit without any limitations on rental rates. In that case, the Developer must then make available for rent to an Eligible Household another unit within the Project that meets the size and location requirements for Affordable Units under this Density Bonus Agreement. If there are no vacant units meeting those requirements, then the next available unit within the Project which does meet those requirements must be rented to an Eligible Household. (b) If the no longer Eligible Household either moves to another Unrestricted Unit within the Project or leaves the Project altogether, then the vacated Affordable Unit or, at Developer's election any other Unrestricted Unit within the Project which meets the size and location requirements for Affordable Units under this Density Bonus Agreement and has the same number of bedrooms as the vacated unit shall be rented as an Affordable Unit to an Eligible Household. 4.11 Monitoring and Recordkeeoing. Throughout the Term of this Agreement, Developer shall annually complete and submit to City a Certification of Continuing Program Compliance in the form provided by City. Developer agrees to pay a reasonable fee, as set by City resolution, for the purpose of paying the actual costs associated with the City's obligation to monitor Developer's compliance with the affordability restrictions contained in this Agreement related to the Affordable Units, not to exceed monitoring costs for up to nineteen (19) Affordable Units. Representatives of City shall be entitled to enter the Property if necessary after review of 12 75A-147 above documentation, upon at least forty-eight (48) hour notice, to monitor compliance with this Agreement, and shall be entitled to inspect the records of the Project relating to the Affordable Units and to conduct an independent audit or inspection of such records at a location within the City that is reasonably acceptable to the City. Developer agrees to cooperate with City in making the Property and the records of the Project relating to the Affordable Units available for such inspection or audit. Developer agrees to maintain each record of the Project for no less than five (5) years after creation of each such record. Developer shall allow the City to conduct annual inspections of each of the Affordable Units on the Property after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within ten (10) Business Days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 4.12 Notice of Affordability Restrictions on Transfer of Property. In the event Developer wishes to sell or transfer the Project during the Total Affordability Term, the City and the Developer shall execute and deposit into escrow a Notice of Affordability Restrictions on Transfer of the Property as contained herein (Exhibit E). The sale or transfer of the Property shall not be effective unless and until the City and the transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Developer to the transferee. 4.13 [Intentionally Reserved] 4,14 Alternative Transportation and Energy Source, Resource Conservation, and LEED Certification. While not a condition of the project's Density Bonus, in recognition of the City's desire to optimize the energy efficiency of the project, Developer agrees to consult with the project design team, a CABEC certified 2016 Certified Energy Analyst, a LEED AP Homes (low-rise and mid -rise), LEED AP BD+C (high rise), National Green Building Standard (NGBS) Green Verifier, or GreenPoint Rater (one person may meet both of these latter qualifications) early in the project design process to evaluate a building energy model analysis and identify and consider energy efficiency or generation measures. Prior to the meeting, the energy analyst shall complete an initial energy model based on either current T24 standards or, if the project is eligible, the California Utility Allowance Calculator using best available information on the project. To the extent financially feasible for the project, Developer agrees to incorporate and optimize energy efficient building materials, methods, and amenities. 4.15 Onsite Property Manage . The Project shall have 24-hour on -site Property Management services and personnel. Up-to-date 24-hour contact information for the on -site personnel shall be provided to the following City agencies on an ongoing basis: (a) Police Department (b) Fire Department (c) Planning and Building Agency (d) Community Development Agency 4.16 Emergency Evacuation Plan. Developer shall submit and obtain approval of an Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to 13 75A-148 issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency contact information for the on -site personnel shall be provided to the City on an ongoing basis and the approved EEP shall be kept onsite and also be submitted to the following City Agencies: (a) Police Department (b) Fire Department (c) Planning and Building Agency (d) Community Development Agency 4.17 Crime Free Housing. Developer shall work with City staff to develop a crime free housing policy, procedure, and design plan (the "CFH Plan"). Developer shall submit and obtain approval from the PBA that the CFH Plan meets the requirements of this Subsection 4,17 prior to issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and administered by Property Management. 4.18 Parking Management Plan. Developer has provided a parking management plan ("PMP"), attached herewith as Exhibit F and incorporated herein by reference, which indicates that, if needed, valet service for on -site vehicle stacking for the entire parking structure could create an additional 122 parking spaces, raising the total onsite residential parking spaces from 196 to 318 and raising the total parking supply in the parking structure from 490 to 612 spaces. In addition, the PMP indicates that an additional 50 offsite parking spaces at a nearby City -owned parking structure could be leased on a long term basis. The PMP shall be adhered to and be enforced by the Project at all times. Additionally, the City may enforce the provisions of the PMP against the Developer in the City's sole discretion. [INTENTIONALLY RESERVED] 6. TERM OF THIS AGREEMENT 6.1 Term. The term of this Agreement ('Density Bonus Housing Agreement Term") shall commence on the Effective Date and shall continue until the date that is fifty-five (55) years after the City issues the last certificate of occupancy for the building in which the Affordable Units are located. 7. DEFAULT AND TERMINATION: INDEMNIFICATION 7.1 Default. Failure or delay by any Party to perform any term or provision of this Agreement, which is not cured within thirty (30) days alter 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. 14 75A-149 7.2 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. 7.3 Indemnification. In addition to any other indemnity specifically provided in this Agreement, Developer agrees to defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent) indemnify and hold harmless City and its respective officers, officials, agents, employees, representatives, and volunteers (collectively, "Indemnitees") from and against any loss, liability, claim, or judgment arising from any act or omission of Developer in connection with its obligations under this Agreement, except to the extent caused by the active negligence or willful misconduct of Indemnitees. ASSIGNMENT,• COVENANTS RUN WITH THE LAND 8.1 Assignment by Developer. 8.1.1 Prohibited Transfers or Assignments. Except as authorized in Section 8.1.2 below, Developer shall not sell, transfer, or assign the Property or Project in whole or in part, or transfer or assign Developer's rights and obligations in this Agreement, without City's prior written approval, which shall not be unreasonably withheld ("Permitted Transfer"). In connection with Permitted Transfer, Developer shall: (i) notify City in writing of the sale, transfer, or assignment of all or any portion of the Property, and (ii) deliver to City an assignment and assumption agreement (or other agreement) in a form approved by City and executed by Developer and its transferee/assignee pursuant to which Developer's transferee/assignee, assumes all of Developer's covenants and obligations set forth herein with respect to the Property or the portion thereof so transferred. Any request for transfer or assignment of the Agreement by Developer shall require the payment of fees or a deposit to compensate the City for approximate expenses incurred by Developer to City, as applicable, for the City's review of the request. Upon the delivery of the assignment and assumption agreement as provided for above for a Permitted Transfer, or in the event of a sale of the Property as provided for in Section 8.1.1, Developer shall be released from any future obligations under this Agreement. 8.1.2 Sale of Property. Developer agrees and declares that the Property and the Project shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, operated, sold, and approved subject to all obligations set forth or incorporated in this Agreement, all of which are for the purpose of enhancing and protecting the value and attractiveness of the Property and the Project. All of the obligations set forth or incorporated in this Agreement shall constitute covenants which run with the land and shall be binding on Developer and its successors and assigns, and all parties having or acquiring any right, title or interest in, or to any part of the Property or Project. Developer further understands and agrees that the Density Bonus permit approvals received for this Project have been made on the condition that Developer and all subsequent owners, or other successors and assigns of the Property and/or Project lease and rent the Affordable Units in accordance with the terms and conditions stipulated in Sections 4, 5 and 6 15 75A-150 of this Agreement for a term of fifty-five (55) consecutive years commencing upon the date of issuance of the last certificate of occupancy for the Project. 8.1.3 Subsequent Assignment. As used in this Agreement, the term "Developer" shall be deemed to include any such transferee or assignee after the date such sale, transfer, or assignment occurs in compliance with this Agreement. 9.1.4 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. 8.2 Covenants Run with the Land. The Property shall be held, sold, conveyed, hypothecated, encumbered, used, occupied and improved subject to the covenants, conditions, and restrictions set forth herein. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall nun with the Property and shall be binding upon Developer and all persons having any right, title or interest in the Property, or any part thereof, their heirs, and successive owners and assigns, shall inure to the benefit of City and its successors and assigns, and may be enforced by City and its successors and assigns. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and the parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of City, 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 City which real property shall be deemed the benefited property of such covenants and this Agreement shall create equitable servitudes and covenants appurtenant to all real property owned by City and running with the Property in accordance with the provisions of Civil Code Section 1468, Furthermore, all of the covenants, conditions, and restrictions contained herein shall also constitute easements in gross running in favor of City. City is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. Developer hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that the Developer's interest in the Property is rendered less valuable thereby. Developer 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 Property by the citizens of City and by furthering the health, safety, and welfare of the residents of City. 9. MISCELLANEOUS 9.1 Entire Agreement. This Agreement and all of its exhibits and attachments set forth and contain the entire understanding and agreement of the parties with respect to the density bonus of the Project, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be 16 75A-151 admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 9.2 Amendment. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance approved by the City Council and signed on behalf of each party. Any requested alteration, change or modification of the Agreement by Developer shall require the payment of fees or deposit by Developer to City, as applicable, for the City's review of the request. Each alteration, change, or modification to this Agreement shall be recorded against the Property in the Official Records of Orange County, California. 9.3 Notices. 9.3.1 Delivery. 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 below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) two (2) 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 Federal Express), charges prepaid and delivery scheduled next -day to the recipient named below, provided that the sending party receives a confirmation of delivery from the delivery service provider; or (v) the first business day following the date of transmittal of any facsimile, provided confirmation of successful transmittal is retained by the sending Party. All notices shall be addressed as follows: If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 If to Developer: Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 9.3.2 Change of Address. Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or 17 75A-152 representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 9.4 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder 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. 9.5 Interpretation and Governing Law. This Agreement and any dispute hereunder shall 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 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. 9.4 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 9.7 Singular 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. 9.8 Joint and Several Obligations- If at anytime during the term of this Agreement the Property and/or Project is owned, in whole or in part, by more than one Developer, all obligations of such Developer under this Agreement shall be joint and several, and the default of any such Developer shall be the default of all such Developers. 9.9 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 9.10 Computation of 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 except Saturdays, Sundays, official State holidays as recognized in Government Code Section 19853(a) or successor statute, and any days in which Santa Ana City Hall is closed for business. 9.11 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. 9.12 Non -Discrimination. In performing its obligations under this Agreement, Developer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other related 18 75A-153 activities. Developer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 9.13 Third Party Beneficiaries. No person or entity, other than City and Developer shall have any right of action based upon any provision of this Agreement. 9.14 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, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), court actions (such as restraining orders or injunctions), or other causes beyond the Party's control, including delays by any governmental entity (although the City may not benefit from this provision for a delay that results from City's failure to perform its obligations under this Agreement), or an insurance company of either party. If any such events shall occur, the term of this Agreement and the time for performance by either Parry of any of its obligations hereunder may be extended by the written agreement of the Parties for the period of time that such events prevented such performance. 9.15 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. 9.16 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions 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 approved pursuant to this Agreement during ownership of the Property or any portion thereof. 9.17 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. 9.18 Jurisdiction and Venue. Any action at law or in equity 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, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 9.19 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 19 75A-154 Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the Developer of such property. 9.20 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. City hereby authorizes City Manager to take such other actions and negotiate and execute any additional agreements as may be necessary or proper to fulfill the City's obligations under this Agreement. The City Manager may delegate her or his powers and duties under this Agreement to an authorized management level employee of the City. 9.21 F-stol2ycl Certificate. Within ten (10) business days following a written request by any of the Parties, the other Party shall execute and deliver to the requesting Party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification, except as may be represented by the requesting Party, and that there are no uncured defaults in the performance of the requesting Party, except as may be represented by the requesting Party. 9.22 No Subordination. City's approval of the necessary land use entitlements that authorize Developer to develop, operate, and maintain the Project was based upon Developer's obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density Bonus for Affordable Housing, and the terms and conditions of this Agreement. For the Term of the Density Bonus Housing Agreement, this Agreement shall have priority over any and all mortgages, deeds of trust, and other similar forms of secured financing recorded against the Property or any portion thereof. Developer expressly understands and acknowledges that state law requires preservation of affordability covenants in connection with the approval of this density bonus project. 9.23 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, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing Party. 9.24 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants 20 75A-155 and represents that he or she/they has/haye the authority to bind the Party to the performance of its obligations hereunder. (Signatures on followngpage) 21 75A-156 IN WITNESS WHEREOF, the parties hereto have caused this Density Bonus Housing Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Daisy Gomez Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL: Steven A. Mendoza Executive Director Community Dcvelopment Agency CITY OF SANTA ANA Kristine Ridge City Manager 22 NC. 75A-157 EXHIBIT 12 75A-158 September 9, 2020 Mr. Michael F. Harrah Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 SUBJECT: 3RD & BROADWAY PARKING ASSESSMENT (REVISED) Dear Mr. Michael F. Harrah: Urban Crossroads, Inc. is pleased to provide the following Parking Assessment for the 3rd & Broadway (Project) located on the northeast corner of 31d Street and Broadway in the City of Santa Ana. The Project is proposed to include the development of up to 171 residential units, a 75-room hotel, and 13,419 square feet of commercial space (including retail and food/beverage establishments), and rooftop amenities ancillary to residential and hotel uses. Of the residential units 19 (eleven percent) will be reserved for very low-income households for a period of 55 years, therefore the parking ratios for affordable housing specified in California Government Code Section 65915 are applicable. To demonstrate that adequate parking supply exists for Project, this parking assessment provides a review of the parking requirements and estimates the peak parking demands for the Project land uses. A total of 279 parking spaces are dedicated to the mixed -use development (residential) and hotel as shown in Exhibit A. In addition, this Parking Assessment was be developed to support an Addendum to the certified Transit Zoning Code (TZC) programmatic Environmental Impact Report (EIR). The 3rd & Broadway Project location is shown on Exhibit B. Consistent with statewide mandates (see AB 32, SB 375, SB 743) and SCAG's 2016-2040 RTP/SCS to place increased density near major transportation and employment center, the Proposed Project would introduce a diverse mix of land uses; places residents in the immediate vicinity of County and City governmental offices, shops, restaurants, bars, local art scenes, parks; and would be within walking distance to several major public transit opportunities. PROXIMITY TO PEDESTRIAN RESOURCES Pedestrian circulation would be provided via existing public sidewalks along Main Street, 3`d Street, 4th Street, and Broadway Avenue within the vicinity of the project frontage, which will connect to the Project site. The project will protect the existing sidewalk along project frontage, and if necessary, repair or reconstruct sidewalks along the project frontage per the City's request. The existing sidewalk system within the project vicinity provides direct connectivity throughout Downtown Santa Ana, inclusive of the Santa Ana Metrolink Station located on Santa Ana Boulevard east of Santiago Street, as well as the City's public parking structures located to the east and west of the subject property along 5th Street. From the project site, it would take approximately 20 minutes to walk to the Santa Ana Metrolink Station that is 1 mile from the site. DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/ TPM No. 2020-02 201 West Third Street Third & Broadway Mixellsg De ment Exhibit 12 - Parking Analysi =� ment Plan PROXIMITY TO PUBLIC TRANSIT Bus routes serving the Project area within %-mile of the Project's location include OCTA routes 19, 53, 55, 64, 83, 145, 206, 462 and 757 as shown on Exhibit C. These routes provide connections to several areas countywide. In addition, the project site is about one mile from the Santa Ana Regional Transportation Station, which is served by regional trains including Amtrak and Metrolink, and bus lines such as Greyhound and several OCTA bus routes. The Project would be within walking distance of the planned OC Streetcar, expected to be in operation in 2022 as shown on Exhibit D. The Project is within a transit priority area as defined by Public Resources Code (PRC) Section 21099(a)(7). A transit priority area is an area within one-half mile of a major transit stop that is existing (or planned under certain conditions). A major transit stop includes the intersection of two or more major bus routes with a frequency service interval of 15 minutes or less during the morning and afternoon peakcommute periods (PRC §21064.3). The Project site is within 0.15 miles of the intersection of Bus Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west via 11t Street). The Project site and adjacent bus stops are shown on Exhibit E. PROXIMITY TO BICYCLE FACILITIES The City of Santa Ana promotes bicycling as a means of mobility and a way in which to improve the quality of life within its community. The Bikeway Master Plan recognizes the needs of bicycle users and aims to create a complete and safe bicycle network throughout the City. Currently, not many bicycle facilities exist in the study area, with the exception of a Class II bike lane along Civic Center Drive, between Flower Street and Broadway. However, review of Exhibit F which presents the City's Bikeway Master Plan, shows that bicycle lanes are proposed to be built throughout the study area. As shown in Exhibit F, Class II bike lanes are proposed to be integrated along Civic Center Drive, Santa Ana Boulevard, and Main Street. 75A-160 EXHIBIT A: 3RD & BROADWAY BUILDING DESIGN SITE PLAN PLAN NOTES PROPOSED PAFO9NG SPACES PER LEVEL LEVELS PUBLIC HOTEL RESIDENTLAL Level P1 106 9 Lev L3 46 Levd2 39 Le L3 39 Levd4 27 12 LeveL5 0 17 43 Lev L6 59 Levd7 56 L.48 I i 38 TOTAL 211 SPACES 63 SPACES 196SPACES BIKE PARKING REQUIRED PROPOSED PUBLIC 35PACES 17SPACES RESIBENTAL 16 SPACES 16SPACES 75A-161 EXHIBIT B: 3RD & BROADWAY BUILDING LOCATION MAP 75A-162 EXHIBIT C: OCTA ROUTE MAP AND PROJECT LOCATION 75A-163 EXHIBIT D: THE PROJECT SITE IN RELATION TO THE OC STREETCAR ROUTE I I I I I w SUwtolinkFacific Nline m� Anpe 1 ORANGE COUNTY SCHOOL OF THE ARTS . (OCSA) ACADEMY ran • CARVER ELEMENTARY SCHOOL -- 6ARFlELD ELEMENTARY SCHOOL Ar_ vftNnARwm MAINTENANCE AID • STW STORAGEFACY)TY(MY) • WGIOWIGR PoIENIIFL MURE SiGP ONE-WAYTRAVEL MelrafnWPacAE �j�!�!.TI CMCCENTER DISTRICT GUTflireTro San olgo tlV] T-RANTHSAPo—PTRl�O1CFUHTFA = STATIONDISTRKT IIN11 LOSSAN RAIL CORRIDOR COWNTOWN _ COM4RCwLOLSTA" l PROIEti SITE 75A-164 EXHIBIT E: PROJECT SITE AND NEARBY Bus STOP _ rd l n �•a , � I I _w _. z � a•. E*41h St W Washlr§Inn AvE - z k✓ti y E Washmlun A're E WasNnglon Ave'" L1nle St E 121h 51 A Count z County o Ave Haks'rvodM1 St SW �A° e•. � 2 Q m Am Eft IM1 St rr uwf £ L.q3 Z - ib•I yt 'W 101hS = ftOth Sl Gr a z m' M1Z Aer J� S FV ,cam 0 H 'tl: Greyha une 3 m L,In ilk Sanca .vw 2 - V .A y i y vre Ce nle r p. YV E P 8[M1 SI OS mv¢C qte: Ll: SantaAna - LSvnb Am%Y'6 ZE51h SI E E51h St 4Y 5m 51e i s E50151 •:e Ir ate' �Pubkl kl,, = E51h St spugenn& ® Z NI Jtn St L41h Jl E lrll PFOp rel- :i 11.1 St _ EJrtl 51 m E31E $1 n rt.�©—, ei.M1 Pon .A 5Fl- Marelap Plus E 3nd 51 z E 2m St Z R16 AM ub Txo W.1 s1S1� Ewl .. Fefs4St Mme Eooen dntr't L '8d..:10 5t E M11M sl K.. - SnlaAnu Ihph SMnI Pore St E P, 51 E Pure N W CI ,t,.N Ave,, L C'e WU AYP _4 e tt 2 m ✓� t MYnle 51 f M11Ptk 51 W Cam1k 51 Legend G1 Bus Stops Project Site 75A-165 EXHIBIT F: PROJECT SITE AND NEARBY BIKE PATHS SIKEWAY MASTER PLAN f yUxwP_ar.. --- Ealstirog .....Adopted --Potential tF Santa Ana Rivet Rest StopExisting .....AdoptedPotential wLnV[q xux 5� Existing ... Adopted — —Potential GLI nn � WRDENCWOYF �I�.. �7 Routes to Adjacent Cities '� wcmr unEyyat' v.Iriin.L� $an4al) � �- 4. r H� MINST. Ah iI• yy~ s Wf]fM SL} ?. p HIS�F➢0.�N. 9 STu tiT a - Legend I Project Site 0 0s 0s �'. W FN ST ........ vwTA nrcnxvc' €anizT WAW 9 ,y l ILINJI IL wlu s L4'.ucclV u.mf aI I i y� �5' �JINiE%ML b 1 ...• � LF911K£RAVE._.. .y� 9 Si�kMEWSPL �L•IEwMftFi AENkWY xo '�' LiLGFJ C V LJNJIN( F.Vi } 75A-166 CALIFORNIA GOVERNMENT CODE SECTION 65915 — RESIDENTIAL PARKING The California Government Code Section 65915 (p)(1) identifies parking requirements as follows: one (1) on -site parking space for each 0-1 bedroom unit, two (2) on -site parking spaces for each 2 bedroom unit. As such, the parking requirements for the residential portion of the Project are calculated as follows: • 95 — Studio Units x 1 on -site parking space = 95 parking spaces required. • 51-1 Bedroom Units x 1 on -site parking space = 51 parking spaces required. • 25 — 2 Bedroom Units x 2 on -site parking spaces = 50 parking spaces required. As identified, 196 parking spaces are required pursuant to the California Government Code Section (p)(1)• SANTA ANA TRANSIT ZONING CODE- RESIDENTIAL PARKING The Santa Ana transit zoning code requires 2 spaces/unit for studios, 1-bedroom apartments, 2-bedroom apartments, and 3-bedroom apartments. Additionally, 0.15 spaces/unit must be provided for guest parking. Therefore, for the Project, 368 parking spaces are required for a total parking ratio of 2.15 which is calculated by dividing the spaces required by the number of units, or 368 spots /171 units for the Project as shown on Table 1. Comparing this parking requirement against a proposed parking supply of 196 parking spaces results in a parking deficit of 172 spaces. Parking space requirements per multiple cities and jurisdictions based on the unit count for the Project are listed on Table 1. As shown, the City of Santa Ana's Transit Zoning Code requirements are amongst the most restrictive parking requirements (e.g. require the most parking). 75A-167 DEMAND 1 1` C: C f 75A-168 COMMERCIAL PARKING Pursuant to California Government Code Section 65915(e)(1), the Project is exempt from providing parking spaces for the commercial use. It is anticipated that employees and patrons for the commercial businesses will utilize a portion of the 211 on site public parking stalls. These spaces provide direct access to the commercial uses which if the TZC standards were applied would require 34 spaces. CITY OF SANTA ANA PARKING REQUIREMENTS — HOTEL USE Section 41-1344 of the City of Santa Ana Municipal Code (SAMC) includes an off-street parking rate of one space for each guest room, plus one spaces for each ten rooms. As such, the parking requirements for the hotel portion of the Project are calculated as follows: • 75 rooms x 1 on -site parking space = 75 parking spaces required. • 75 rooms x (1/10) on -site parking space = 7.5 parking spaces required. As identified, 83 parking spaces are required pursuant to the City's Municipal Code requirements. Although application of the parking requirements set forth in the TZC SAMC Section 41-2011 Non - Residential Uses would require 156 spaces for the hotel, given the mixed -use nature, urban location (it is expected that many patrons would use ride -sharing or public transit), the fact that hotels are not typically 100% occupied, it is appropriate to utilize the SAMC Section 41-1344 Hotel parking in lieu of the TZC parking requirements. Additionally, the SAMC Hotel Parking requirements are commensurate with industry standards for other cities in Orange County. For example: • City of Anaheim has a requirement of 0.8 space per guest room. If this were applied to the Project site, only 60 parking spaces would be required. • City of Costa Mesa has a requirement of 1 space for each 2 rentable units. If this were applied to the Project site, only 38 parking spaces would be required. • City of Buena Park has a requirement of 1 space per guest room. If this were applied to the Project, only 75 parking spaces would be required. As previously identified, 83 parking spaces are required pursuant to the City's Municipal Code requirements. Lastly, valet parking will be provided for the hotel to utilize the mechanical lifts and reserved stalls in the adjacent mixed -use building, this will further ensure that the hotel parking demand is met. 75A-169 EXISTING PUBLIC PARKING STRUCTURE The Project site is proposed to replace an existing parking structure that includes 438 parking stalls. The Project includes 211 public replacement stalls as part of the Project. 3RD & BROADWAY PARKING SUPPLY Due to the nature of daytime public parking demands and nighttime residential building parking demands, it is expected that many of these spaces may effectively be shared between the public daytime and residential nighttime uses (as needed). Additionally, there are four (4) existing public (owned by the City) and eight (8) private parking lots or structures located in a X mile radius of the Project site, as illustrated on Exhibit G. As such, any public demand can easily be accommodated at these other parking locations. PARKING MANAGEMENT PLAN The following measures are available to the Project to mitigate any parking deficiencies in the event the proposed onsite parking supply is determined to be greater than provided by the Project, as proposed. • PMP Measure 1: Property Owner/Property Management Company shall assign (1) parking space to every residential unit. Additional spaces may be purchased and assigned to any residential unit that requests additional assigned spaces with priority given to two -bedroom units, subject to availability as determined by the Property Owner/Property Management Company. • PMP Measure 2: Upon commencement of any lease for the residential units, the Property Owner/Property Management Company shall provide information on alternative modes of transportation (e.g., a transit map, bus route map, etc.) to promote non -vehicular modes of transportation by future residents. • PMP Measure 3: If the Property Owner and/or Property Management Company determine that the actual parking demand for the site exceeds the State Code's affordable housing parking requirement, the Property Owner/Property Management Company shall provide on -site valet service for the entire structure. Appendix A presents a conceptual valet plan which illustrates up to an additional 122 spaces could be accommodated, if needed. To implement the valet operation, the Property Owner/Property Management Company would engage the services of a well -established valet operations company such as ABC Valet, PPS Parking, and Elite Valet Services. • PMP Measure 4: If the Property Owner and/or Property Management Company further determines, even after implementation of above -mentioned PMP measures, that offsite parking is required for the Project's residential tenants, residential tenants may purchase additional parking within the near -by public parking structure via the agreement that the Property 75A-170 Owner/Property Management Company established with the City Community Development Agency. To facilitate this PMP measure, the Property Owner/Property Management Company would seek City Council approval and upon Council approval, execute an agreement with the City of Santa Ana to acquire the rights to lease spaces on behalf of the Project's residents. Pursuant to communications with the City Community Development Agency, the Property Owner/Property Management Company would secure up to 50 spaces for residents of the Project as part of the agreement, which would allowthe Project residents to access the designated parking structure(s) 24-hours a day seven (7) days a week. Although the mixed -used Project includes 211 public replacement stalls which could be used to meet potential parking demands, additional off -site parking structures are illustrated on Exhibit G, these structures/lots are within a mile of the Project site (e.g. within walking distance). Based on information provided bythe City, there are 1,159 total spaces available at the aforementioned off -site public structures (400 spaces at Lot C, 400 spaces at Lot D, 700 spaces at Lot B, and 59 spaces at Lot 1). • PMP Measure 5: If the Property Owner and/or Property Management Company further determines, even after implementation of above -mentioned PMP measures that additional parking is needed, the Property Owner/Property Management Company shall restrict on -site parking to only residential tenants. The only exception would be spaces designated and signed for prospective resident tenants and/or short-term parking for retail customers. All retail customers, resident guests, and hotel guests would be required to park in one of the near -by public parking structures or utilize on -street parking. Exhibit G summarizes public and private off -site structures within a mile of the Project site. Based on information provided by the City, there are 1,559 total spaces available at the aforementioned public structures. If the Property Owner and/or Property Management Company determine that offsite parking is required for the Project, the Property Owner/Property Management Company shall execute an agreement with the City of Santa Ana to acquire the rights to lease spaces on behalf of retail/hotel employees. • PMP Measure 6: The Property Owner/Property Management Company shall enter into a lease with the City for use of up to 34 public parking spaces for commercial tenants, if needed. • PMP Measure 7: The parking conditions will be reviewed/monitored on a quarterly basis by the Property Owner/Property Management Company and appropriate actions detailed above will be taken to ensure the necessary PMP measures are being implemented. Through this monitoring and cooperation with tenants as a result of the quarterly review/monitoring a partnership will be formed to ensure that residential tenants, retail employees, hotel employees, and Management Company personnel on the property work together to ensure adequate parking is available. 75A-171 EXHIBIT G: 3RD & BROADWAY PARKING LOTS/STRUCTURES WITHIN % MILE w z Z CIVIC CENTER 0 g arm' CIVIECENTER _ dNVCffNSEN O i 4 CIVICCENTER P 2 O it3 Arid SANTAANA a SANTA ANA NSANTAA -6TH —I +n z L-0 1 i]i 5 SNN ri 4TH r, ALLEY -. 3RD r Q2ND N e i b xmm.,u r r I W zi ALLEY Q - WALNUT a.. r 3 o Z e ALLEY Q y y O ALLEY m ¢ PINE ¢ PINE ALLEY n, ALLEY Legend ,Project Site Parking Lots Private Public Q Quarter Mile Radius 75A-172 Table 2 provides a summary of the Project's residential parking supply ratio with implementation of the above -recommended PMP measures. A review of RowA of Table 2 shows that the Project's parking ratio calculates to 1.15 spaces/unit (196 spaces _ 171 units). With implementation of PMP measure No. 3, which would be attained by providing valet parking for the entire parking structure (122 spaces), the Project's parking supply ratio would increase to 1.86 spaces/unit (318 spaces _ 196 units) as shown on Row B of Table 2. With implement of PMP measure No. 4 (in addition to PMP No. 3) which would be attained by leasing up to 50 off -site parking spaces within the City -owned parking structure, the Project's parking supply ratio would increase to 2.15 spaces/unit (368 spaces _ 196 units) as shown on Row C of Table 2. This analysis demonstrates that the Project is providing adequate parking supply (a total of 279 spaces for the Residential and Hotel Use). The inclusion of 196 parking spots for the Residential use satisfies the requirements of the California Government Code Section 65915 (p)(1) and the inclusion of 83 parking spaces satisfies the requirements of section 41-1344 of the City of Santa Ana Municipal Code (SAMC). While such an action is not required, applicable PMPs have been identified which would allow the Project to attain the 2.15 blended parking ratio required bythe Santa Ana Transit Zoning Code, if it were applied. These findings are consistent with the less than significant findings in the TZC EIR (Long-term cumulative development under the implementation of this Transit Zoning Code would not result in inadequate parking capacity). If you have any questions, please contact me at (949) 660-1994. Respectfully submitted, URBAN CROSSROADS, INC. Haseeb Qureshi Associate Principal 75A-173 TABLE 2: PROJECT PARKING SUMMARY— PARKING SUPPLY RATIOS Use Quantity Parking Rate Required Parking spaces Residential 171 units 95 Studio Units x 1 space 95 51 One -Bedroom Units x 1 space 51 25 Two -bedroom Units x 2 spaces 50 Parking Requirement 196 Proposed On -site Parking Supply 196 A. Composite Parking supply Ratio (sp/du) 1.15 Proposed On -site Parking Supply+ PMP Measure 3 318 B. Composite Parking supply Ratio (sp/du) 1.86 Proposed On -site Parking Supply+ PMP Measure 3 +PMP Measure 4 368 C. Composite Parking supply Ratio (sp/du) 2.15 75A-174 APPENDIX A: 3RD & BROADWAY CONCEPTUAL VALET LAYOUT 75A-175 studioneleven 3rd &Broadway Valet Parking Sit Caribou Industries Septemeber 09, 2020 udy 75A-176 AL n n n n n n n n n n n n nn n n nn n n � � ,Illll�.i'I�IIIII�yi11�111�111�111�111�11R1119 � ' i .., �IIIIIII .E w " �Iti91... ' Is>.' Rq I[�pl �ilpl pg n� IpIplIhiil' l_I� �I �aF�■�Rim =uAlE VII_, -� o Level 131 27 Valet Stalls 114 Parking Stalls 141 Parking Stalls Total 75A-177 .o Level 2 15 Valet Stalls 39 Parking Stalls 54 Parking Stalls Total 75A-178 SCPLE t/]Y=t 4�� _O Level 3 15 Valet Stalls 39 Parking Stalls 54 Parking Stalls Total 75A-179 I 28 19 18 P �6 15 id 13 12 it 1 6 5 6 3 2 1 vw w — — w E �2 J31 B. R. AREA E BA ve iY i-- on�W Irru LOBBY 1. g� 9 IF IA �`wwaw �iN.44 _ LL LL III AO K12p v o \ \ xm TOTAL P�KNB K — E P (D I - - - - i - -- - - - Level 4 15 Valet Stalls rt 39 Parking Stalls 54 Parking Stalls Total 75A-180 Q SCALE 1130=I= - Level 5 14 Valet Stalls 60 Parking Stalls 74 Parking Stalls Total S...ENNY EVENT SPACE LOBBY 3W1 75A-181 A sua 1130 = I Level 6 14 Valet Stalls 59 Parking Stalls 73 Parking Stalls Total 75A-182 A Level 7 13 Valet Stalls 56 Parking Stalls 69 Parking Stalls Total ITS NIIIIIIII Mill la'�1�6 75A-183 A ScuS 111 =iI Level 8 9 Valet Stalls 38 Parking Stalls 47 Parking Stalls Total 122 Total Valet Stalls All Levels To L 1eF fi HIMM' pllllllll "'�i;� WIN I 75A-184 EXHIBIT 13 75A-185 TENTATIVE PARCEL MAP NO. 2020-159 FOR CONDOMINIUM PURPOSES 3rd & BROADWAY (201 WEST 3rd STREET) Lv wa SANTA ANA, CALIFORNIA - COMMERCIAL LAND USE 8 G o mo-eTMmof VICINT'MAP N PROMISED PARCEL BOL\OAR\ pN11p1A\EII PARISEE RMIN.M. o 4 eIL. _ — — 13 a I r. u andINN_ ^ \00'71 d E �0D1/ 00 s w �Q e e ACCOMMERCIAL LAND USE c o a z \\\A 00\ 00 0000000 na 0,- 0000 0 J o 0 de b tI1. A, SEEN— — — — -.— — — E I ,.....,,.,.... ­A­E.GN1G.- TITLE RKG" EASEMENTS: oa® ....,,.RATE ,... _a,.,..... z BB ABBNBzz .��......�. .m.oa.,...o.m, .®.o......,.... .........,...., B.N. ..d.®a.,... o a„�.,..,.�..®,. PNBBBNAR. REPBRB ..... RN. —GA-1111A. IMS ,..o..e.,o,...,,,..,, ,..,w. ®... .....a..d,,........a. .....do ®.. ...o.o,..do.... o.: . RIN......,.,...,. .....T.....a....— E. TA IAPEA-RN e...,CLACE R q.....o......,...,.o..d,,..,.,�..s.=..,.,..�......I ,. ..P-1.1........-I"..PPEAMP—,.................n...... SAM I mmr .d Al ,a.....®a,.. .. ... i..o�. »..,.....v.... ®,.SEEN .m,..,,m...P jREVISIGNS REFERENCES LENTALPEE PARCEL 9 BROADWAY 3rd 0 SANiAWANA, G 92]d1 ILL Ieven-n�mnP.arP gp PUBLIL,WBNING noENCY P, 75A-186 SECTION.•A-A• e(vue�lc) PFW NI a 6 AFF MA SECTION ^o-0• O� wX 11 ml Ow OOF 1� „N 1� SECTION. "EE" dPL N Rq FAN OF A. sE�TI��u " 4 sFFQQ [ PRGPGSEDDEDNOVTNGN- 75A-187 waLL. 1 �LL SEA SECTION'. "OR REGION'. • �f R,= =1wE NTM ATIC SECTION' ACC" ACLE = CA CA 'EURN ACE SCAM rva D A By a D ,m IL SOnu` _ i fL0 + ra. ueoronmrrcrwr \ G ! urure dry C 1} PARCELr l t t t ct t z z z } C r..rAr,.....fr I 1 m FP �� e• Eeonxvrnvr uewnr.awmuuw -C' ca L_ n8 �_ _LA R.". A i ca w ALI AB1111AIll ARE I mmrvCi.r�wn'a LEVEL a, CA I fREVISIONS REFERENCES lE 3rd PARCEL MAP A sWAY � N3rd & 6ROADWAY sNTT'A T sad; o PUBLIC IS NGENLV am OF SANTA ANA 75A-188 C.E =�EROLE rv,= YUCE,Y � SECTIONPC ,�CwAxE Y1—A �r= SECARN 112.1- :A _j SCAM AN G.' G E G iI �E \ ..rwE.AANN.--.—m-wwo"... r E E E E E E E E E E PAx� �. � I F I , ar - nvwa�arewrw ma 1 5 1 CO L ',mcc ccc ccc', I\ PIPGfLO / \ uoixo rovwmua . 'S,t%HOxE I j rOP� Cry ' � YOPI ELI i qry ' 1 � E v 1 y�-'- mmrvsinvwna LEVEL 2 INIEW I ry lE TAiIYE PARCEL MAP N2 RnY➢-159 f 3rd & BROADWAY ® vm I sN.lAAA AM Cs�dl o m_ PUBLIC WORKS NGENLV am of snrvin nrvn 75A-189 CA A xaLE Nn xaLE Nn LEVEE3 P 75A-190 LA SECTION af� PA-1 I FPLf NLS N3 II� UG SECTIONLNJJ' tVv'Wv'2[ f S 6 1 1 1 I PARCEL z w....,.....® PmcELo Fl11 ..o....w.v..m..w.ea.w,.....o...im�.reo..mwo.�w..w..wu.o.m®.. P..,P.. ®uJ� PAR a., sroa,oc � < n PAR A 1 IlCElElElPl K---OJ IInmr LEVEL4 , ', a�Pry C 9 0 i 3rd & BROA�DT�WAY 9ETdl 0 SANziAWW Gf PUBLIC WORKS AGENCY wiV oP snrvin ANA m... . 75A-191 EXHIBIT 14 75A-192 The 2010 Transit Zoning Code EIR and Technical Appendices are available online at: https://www.santa-ana.orq/transit-zoning-code-environmental-impact-report DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 14 — TZC EIR Link 75A-193 EXHIBIT 15 75A-194 The 2020 Third & Broadway Addendum and Technical Appendices are available online at: https://www.santa-ana.orq/pb/planning-division/major-planning-projects-and-monthly development-project-reports/3rd-and-0 DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 15 — Addendum Link 75A-195 EXHIBIT 16 75A-196 October 9, 2019 Ms. Selena Kelaher City of Santa Ana Building and Planning Division 20 Civic Center Plaza PO Box 1988 (M-20) Santa Ana, CA 92702 Dear Selena, On behalf of the applicant for the proposed project on 3rd and Broadway, mixed use project at 201 3" street, I am submitting the following materials related to our compliance with the Sunshine ordinance requirements for this project: • Notification mailers (English and Spanish) were mailed out on September 13, 2019 to property owners and occupants within a 500' radius of the project site. • Proof of publication of announcement notice bythe Orange County Register on September 23, 2019 • List of property owners and residents within a 500' radius of the project site, radius map and certification by list preparer • Sign -in sheet from the Sunshine Ordinance Community meeting held at Original Mike's Restaurant, 100 S Main Street, Santa Ana CA, at 6:00 pm on October 8, 2019 • Power point presentation shown at the meeting by Tobin White, Architect, Studio 1-11 • Presentation Boards of the project were presented at the meeting. • Meeting Minutes, with questions and responses. I confirm, under the penalty of perjury, that I conducted the aforementioned community meeting as required by the Santa Ana's Sunshine Ordinance, Ordinance No. NS-2843 and the foregoing details and materials enclosed with this transmission are true, accurate and correct to the best of my Knowledge. Dated this 91h day of October 2019 William Paul Beaubea , Architect DBA No. 2020-01/SPR No. 2020-01/SPR No. 2020-02/VAR No. 2020-05/TPM No. 2020-02 201 West Third Street Third & Broadway Mixed -Use Development Exhibit 16 - Sunshine Meeting Minutes 75A-197 Notice of Community Meeting You are invited to attend a community meeting for the proposed project described below: Subject: 31d & Broadway Development Project Property Address: 201 West 3`6 Street, Santa Ana, CA, 92701 Description: The proposed project will create an New Urban Core to the Artist Village Downtown; creating vibrancy with the addition of public parking, retail shops, restaurants, community rooms, 171 residential units, including affordable housing and a 75 guest room hotel with engaging public spaces, and a roof top lounge restaurant. The development is walking distance to the upcoming Streetcar and adjacent to the Artist lofts. Meeting Date: Meeting Time: October8, 2019 6:00 pm — 7:00 pm 92701 If you require assistance with translating, please contact our office no later than 48 hours prior to the meeting so we can arrange fora translator: Caribou Industries Inc Office: 714-543-9484 Email: wbeaubeaux@caribouind.com This notice is being provided pursuant to SAMC 2-1531cj PRESER 75A-198 Aviso de Reunion Comunitaria Usted esta invitado a asistir a una reunion de la comunidad para el proyecto propuesto descrito abajo: Tema: 31d & Broadway Development Project Propiedad Direction: 201 West 3rd Street, Santa Ana, CA, 92701 Descripci6n: El proyecto propuesto creara un nuevo nucleo urbano al artista en el Centro de Ciudad; creando vitalidad con la adiclon de estacionamiento pdblico, tiendas, restaurantes, salones comunitarias, 171 unidades residenciales, Clue incluyen viviendas economicas y un hotel de 75 habitaciones con espacios p6blicos atractivos, y un restaurante lounge en la azotea. El desarrollo estJ a poca distancia de la nueva tranvia y a los lofts de artista. Fecha de la reuni6n: Octubre 8, 2019 Hora: &00 pm ti 7:00 pm Ubicaci6n de la reuni6n: Original Mike's, 100 South Main Street, Santa Ana, CA, 92701 t NOTIFICATION BOUNDARY I r b� •Furjj�� ud41A���.Is I• atx 3RD ST. & BROADWAY DEVELOPMENT PROJE 2e1 W. 3RD ST SANTA ANA. . , , Islr -.. IN l,Nc m wry + — r. — - Si requiere servicios de interpretaciun por favor comuniquese con nuestra oficina con mas 48 horas de anticipation a la reunion Caribou Industries, Inc office: 714-543-4484 Email: wbeaubeauN@caribouind.com m Este av150 se proportion con arreglo al SAMC 2-153 (c) IF FUTURE 75A-199 3ra & Broadway Community Meeting Sign -In Sheet October 8, 2019 Original Mike's Restaurant JInc M e c w i w 3 s ,a,.,, Fe FE -Ik &A �71 A, 47,?- 77 c,l-/? �� �S Fes'MNA RNEEMENEM�M. La 75A-200 tt 3rd & Broadway { Community Meeting -Meeting Minutes aai>ll In�u'►'`15 October 8, 2019 Original Mike's Restaurant 6:00pm- 7:00pm Meeting started at 6:OOpm with a Meet and Greet of Guests and a Sign -in (see attached sign -in sheet). Presentation Boards were on display and guests were invited to browse and enjoy appetizers prior to power point presentation. Rod Gonzales, from Caribou Industries, was present and available for anyone requiring an interpreter. William Beaubeaux, the developer's representative, provided an introduction of the team. Tobin White, Architect, and Alison Bautista of Studio 1-11 provided the power point presentation of the project. Tobin shared the projects high lights, design and requirements. He also stated that is was a process in which we worked closely with the City of Santa Ana planning department and the required parameters. After the presentation, Tobin White opened the floor for a question and answer period. Questions and Answers from the presentation: Q: Concern on the parking, how many stalls are being provided with the Project? A: There will be 196 Residential Parking, 83 Hotel spaces and 211 designated Public Parking. Q: How many parking stalls does the present garage Have? A: Tobin stated he was unaware of the number of stalls the present garage holds; but the city requirement was to provide 211 parking spaces. Someone in the audience said they thought there was 400 spaces presently in the garage. Q: Will Sycamore Street be a promenade or thoroughfare? A: Sycamore will be a thoroughfare, but designed to be pedestrian friendly street with opportunities for potential collapsible bollards for street fairs, farmers markets, etc. Q: How many stories will the hotel be, how many stories will the residential be? 1103 North Broadway, Santa Ana, C75AU21&J714) 543-9484 Fax: (714) 543-9972 A: The hotel will be 10 floors and the residential will be 16 floors. Q: Will all the residential units be apartments? A: yes, all apartments, no condominiums. Q: Were there any circulation studies done? A: Yes, prior to the design process, a traffic and parking study was done. This was a requirement of the City. Q: Did the Developer hire the consultant for the studies? A: The studies were completed by a third party selected by the City of Santa Ana. And the final reports gave the guidelines for the design requirements. Q: What is the timeline of the project? A: Not sure. It depends on the building and Planning process then the construction phase. Once we have approvals from the city, construction will take approximately 2 years. Q: While the project is under construction, will the lost parking be available or shifted? A: This still needs to be determined. Past projects have been done in phases to provide parking while the rest of the project is under construction. This is a discussion that we need to have with the City. Q: What is going to be done to prevent the residential and hotel from taking public parking spaces? A: The hotel will be valet parking; the residential will have a separate controlled entrance for their assigned spaces. The residential guest parking will be a part of the residential parking area. Q: What is the rent rate for the apartments? A: The rent rates have not been established at this time. Q: What is the rent rate for the low-income affordable units? A: This will be established by the City of Santa Ana housing formula. Q: What are residential units going to be? 75A-202 A: There will be a mix of studio, one- and two -bedroom units. There will be a mixed ratio for the low-income units in this mix. Q: Why is the building 16 stories? A: The height of the building was dictated by the required retail on the ground floor, the required parking and ratio of the additional low-income units as well as adjusting the massing and carved out spaces for recreation decks and community spaces. Q: Currently there is validation for third street parking, will this project have validations? A: This will be determined later with the parking management of the garage. There will still be metered parking along third street. Q: Are there any allowances for noise reduction measures for the surrounding buildings? A: Not currently. Q: How many parking stalls are provided for the residential units? A: One stall per unit. This is very common in high rise urban residential developments. Some developments in LA do not have a parking allowance for their residential units. Q: Is the Hotel going to be a boutique type hotel? A: This is to be determined. Presently the size and design of the hotel lends itself to a boutique flag hotel. Q: Is the project financed, self -funded or any public funding allocated for this project? A: We do not have that information currently. The presentation today is to present the design concept. Q: What are the community benefits for the project? A: The city council requested community rooms be provided in the project and they have been added. There is also the potential to close sycamore street for street fairs and farmer market types of events. The concept is to activate to street level for the public and the community. 75A-203 Q: Is there a cultural program provided or investment that would include cultural programs? A: The community rooms would be available for art exhibits or other programs. Q: What is on the roof top? Is there any green space? A: The roof top will have the solar panels. Green space will be provided on multiple levels on different tiers of the project. Q: Artwalk night there are no parking spaces, difficult for people to find spaces. What is the plan to accommodate outside visitors? A: The streetcar should be able to reduce the some required downtown parking as well as possibly better signage to guide people to the several other parking garages in the downtown area. This concern will be discussed with City Planning. Q; What are the amenities for the residential units? A: Several outdoor decks, swimming pool, green areas, storage units, dog runs, and community rooms; more are in the planning stage. Q: Tobin asked, "What would you, the community, like the use of the community space?" A: Group stated, possibly a small theater or performance space. Q; How was the public notified about this project? A: Public notices were sent out to residents and property owners within a 500 foot radius as well as outreach to the surrounding neighborhood association presidents, Notice was posted on the City of Santa Ana web site, public notice was posted on the building, as well as posted in the Orange County Register. Further discussion on the concern of parking and the possibilities on developing existing parking structures to accommodate more downtown parking; something City planning should investigate. Meeting adjourned at 7:05pm, last guest left at 7:14 pm 75A-204 EXHIBIT 5 SUMMARY AND SUBSIDY REPORT Pursuant to Government Code Sections 52201 and 53083 For a Disposition and Development Agreement between the City of Santa Ana and Caribou Industries at 201 W 3rd Street The following Summary Report has been prepared pursuant to California Government Code Sections 52201 and 53083, the City Council of the City of Santa Ana must hold a noticed public hearing and, prior to the public hearing, provide all of the following information in written form and available to the public through the City's website regarding a proposed economic development subsidy provided by the City pursuant to a Development and Disposition Agreement between the City of Santa Ana and Caribou Industries (Agreement). Notice was published on the City's website for a public hearing to be held on October 20, 2020. The report sets forth certain details of the proposed Disposition and Development Agreement required pursuant to Government Code Sections 52201 and 53083. BACKGROUND The following Summary Report is based upon information contained within the Agreement, and is organized into the following five sections. I. Salient Points of the Agreement: This section includes a description of the project and the major responsibilities imposed on the City and the Development by the Agreement. II. Estimated Value of the Interests to be Conveyed Determined at the Highest and Best Use of the Property: This section estimates the value of the interests to be conveyed determined at the highest use permitted under the existing zoning. III. Economic Incentive/Development Subsidy Provide, and the Cost of the Agreement: This section details the economic incentive/development subsidy to be provided by the City and the costs to be incurred by the City associated with implementing the Agreement. IV. Consideration Received and Comparison with the Economic Incentive/Development Subsidy Provided: This section describes the financial compensation to be received by the City pursuant to the Agreement. V. Creation of Economic Opportunity and Public Purpose: This section describes how the Agreement will assist in the creation of economic opportunity in the City. 1 75A-205 VI. Job Creation: This section describes the number of full-time, part-time, and temporary jobs created by effectuating the Agreement. This Summary Report and Agreement are to be made available for public inspection prior to the approval of the Agreement. I. SALIENT POINTS OF THE AGREEMENT A. Project Description The proposed project is located at 201 West 3rd Street, at the northeast corner of Broadway and 3rd Street. Caribou Industries, a local developer and property owner in the City, proposes to replace the existing City -owned, 3-level parking garage with a mixed - use development containing 171 housing units (with 19 for low income residents), a 75- room boutique hotel, 13,419 square feet of commercial space (including retail and food/beverage establishments), and rooftop amenities ancillary to residential and hotel uses. The development would be comprised of two buildings: a 16-story, 194-foot-tall mixed - use (residential and commercial) building and a 10-story, 128-foot-tall hotel building. The buildings would be separated by an extension of Sycamore Street from the north edge of the project site to West 3rd Street. The proposed project would provide 490total structured parking spaces, including 211 public parking spaces and the hotel will provide 83 parking spaces. The Agreement is with Caribou Industries, who proposes to redevelop an aging city - owned public parking structure at 210 W. 3'd Street into a residential and hotel project that will benefit from the economic development subsidy: Caribou Industries 1130 N Broadway St Santa Ana, CA 92701 B. City Responsibilities This Agreement requires the City to: 1. Provide the land. 2. Fund the costs for public improvements to ready the site for development. This will include the demolition of the existing parking structure, preparation of the site for development, the construction of Sycamore Street reconnection and construction of 211 public parking spaces to replace the existing parking currently provided at the 3'd and Broadway parking structure. The estimated cost for public improvements is $7 million for the construction of the 211 public parking spaces and $6 million for the additional public improvements. z 75A-206 3. Upon the Developer obtaining entitlements, showing evidence of construction and permanent financing, issuance of all necessary building permits, the City would convey the land to Developer for the Mixed Use project. The City will retain ownership of parcel containing the public parking space. C. Developer Responsibilities This Agreement requires the Developer to: 1. Fund the design of the project, all costs related to entitlements, and all development costs for the apartments, retail, office and hotel. 2. Fund the entitlement application, including, but not limited to, any and all required General Plan and/or zoning amendments, and all related studies required for CEQA compliance. 3. Provide evidence of financing for construction, permanent loan(s) and equity and issuance of all necessary building permits. 4. Design and build a residential development in the heart of Downtown Santa Ana with 171 apartments and 19 very low income units. 5. Design and build the hotel to standards for typical hotel standards. During the first 5 years of operation, various economic thresholds would be established that would allow the Developer to convert the Hotel to residential as follow: • after 2 years if the Rev/Par* falls below $125 • after 3 years if the RevPAR falls below $125 • after 4 years if the RevPAR falls below $125 • after 5 years if the RevPAR falls below $125 6. Develop a parking structure that will include 211 public parking spaces. These spaces will remain public in perpetuity. 7. Manage the Public Parking. The City would enter into a Parking Operation Agreement with the Developer to manage and operate the Public Parking and obligate the Developer to pay all costs including the debt service on the financing for the Public Improvements. The Developer would set the parking rates and either manage the parking directly or through a 3rd party. The Developer would guarantee no negative costs to the City and would keep any net revenue unless the Hotel is converted to residential per the terms of the DDA. 8. Guarantee the debt service and all operating costs and the City would not be responsible if the revenue is insufficient to service the debt. II. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED AT THE HIGHEST AND BEST USE OF THE PROPERTY: 3 75A-207 The property is presently improved with a three-story automobile parking structure of concrete construction. The building contains 144,699 square feet, and was originally constructed in 1983. A 2016 appraisal of the property with a hypothetical condition that the site is vacant and readily available for development appraised the property at $3.0 million. This assumes that the site is cleared and ready for development which for the City to demo and clear the site, prep it for development, the City's cost would exceed the value of the land. In addition, due to the aging parking structure's current condition, it was estimated that it would cost $8-10 million to bring the building up to current building and seismic codes, thus giving it a negative value. III. ECONOMIC INCENTIVE/DEVELOPMENT SUBSIDY PROVIDED, AND THE COST OF THE AGREEMENT The City is providing the following economic development subsidies to facilitate the development of this residential/hotel project: A. Fund the costs of the following improvements at the start of construction with a cap of no more than $13 million. • Demolition of the existing parking structure • Site preparation for construction prepared to a rough grade condition • Construction of 211 public parking spaces • Construction of private street: Sycamore reconnection It is important to note that the Developer will pay the City's debt service thru an Operating Agreement whereby the Developer will operate the Public Parking and pay all costs with no financial risk to the City B. Provide the Land for the development. IV. CONSIDERATION RECEIVED AND COMPARISON WITH THE ECONOMIC INCENTIVE/DEVELOPMENT SUBSIDY PROVIDED: The City expects to generate new sources of income from the development of this project (see Table below on Estimated General Fund Revenue). Currently, the parking structure's operating expenses are higher than the revenues received. Due to the current pandemic, the gap between expenses and revenue has increased significantly which has put a major strain on the City's current General Fund budget. With the new development project and new sources of income, the City is anticipating adding over $600,000 yearly to the City's General Fund budget. V. CREATION OF ECONOMIC OPPORTUNITY AND PUBLIC PURPOSE Implementation of this agreement effectuates a new residential and hotel development in place of an aging parking structure that will cost the City between $8-10 million to bring it up to current building and seismic codes. The goals and objectives that are satisfied by this project are: a 75A-208 1. Additional revenue sources for the City to fund the services the community expects (Table below) 2. Increased employment through additional jobs created as a result of private sector investment and new hotel and commercial development. 3. Reconnection of Sycamore Street that allows improved access in the heart of Downtown Santa Ana. 4. New residential opportunities for mixed income individuals 5. New residential opportunities for very low income individuals 6. New residents in the downtown that will help downtown businesses grow and prosper. This project also satisfies three of the Economic Opportunity Statutes per Government Code 52200 et. seq: 1. This project will result in an increase from $0 to $340,000 annually (satisfying the requirement of being a greater than 15% increase). 2. This project will create affordable housing as 19 very low income units will be constructed; 3. This project is considered a transit priority project per Public Resources Code Section 21155(b) that states the project shall contain: 1) at least 50 percent residential use based on total building square footage (Proposed project = 63%) and, if the project contains between 26 percent and 50 percent nonresidential uses, a floor area ratio of not less than 0.75 (Proposed project = 4.2 FAR); 2) provide a minimum density of at least 20 dwelling units per acre (Proposed project = 121 du/acre); and be within one-half mile of a major transit stop or high -quality transit corridor included in a regional transportation plan. The proposed Project is also within a transit priority area as defined by Public Resources Code (PRC) Section 21099(a)(7). Estimated General Fund Revenue from Proposed Project Summary of Annual Estimated Revenue from Project Total Property Tax Secured & Unsecured $210,000 Property Tax In -Lieu of VLF $130,000 Sales & Use Tax On-Site/Direct $57,000 Sales & Use Tax (Off-Site/Indirect) $25,000 Transient Occupancy Tax $90 RevPar $270,000 Utility User Tax $45,000 Annual General Fund Revenues (ROUNDED): $620,000 Source: Kosmont Companies, 2020 VI. JOB CREATION Economic Benefits of Construction for 3rd and Broadway Employment I Labor Income 5 75A-209 Direct (On -Site) 475 $49,000,000 Indirect 180 $14,000,000 Induced 200 $13,000,000 Total Countywide 855 $76,000,000 Estimated City Capture 510 $53,000,000 Source: Kosmont Companies, 2020 75A-210 EXHIBIT 6 RECORDED AT REQUEST OF CLERK, CITY COUNCIL CITY OF SANTA ANA WHEN RECORDED RETURN TO: City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92701 Attention: City Clerk Exempt from Filing Fees Gov. Code Sections 27383, 6103 DISPOSITION AND DEVELOPMENT AGREEMENT by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California, and CARIBOU INDUSTRIES, INC., a Nevada Corporation [Dated as of October 5, 2020, for reference purposes only] 55 394.00049\3323920112 75A-211 CITY OF SANTA AN DISPOSITION AND DEVELOPMENT AGREEMENT Downtown Hotel and Mixed -Use: Residential and Retail/Commercial Project At 3rd and Broadway THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement') is dated as of October 5, 2020 for reference purposes only, and is entered into by and between the City of Santa Ana, a California charter city in the County of Orange of the State of California (the "City"), and Caribou Industries, Inc. a Nevada Corporation (the "Developer") (collectively, the "Parties," and each a "Party"). The Parties enter into this Agreement with reference to the following recited facts (collectively, the "Recitals," and each a "Recital"): RECITALS A. The City owns that certain real property generally located at 201 West 3rd Street, Santa Ana, California 92701, and as more particularly described in the legal description(s) attached to this Agreement as Exhibit "A" and depicted as APN 398-264-13 on the site plan attached to this Agreement as Exhibit "F" (the "Property"). B. The Developer proposes the development of the Property with a Mixed Use Project including apartments, commercial (including retail and food/beverage establishments), a seventy- five (75) room Hotel Project and a Parking Structure which will contain 444 total parking spaces including 211 public parking spaces, as described in the definitions of "Project," "Mixed Use," "Hotel Project," and "Parking Structure" as set forth in ARTICLE 2 of this Agreement. C. On April 27, 2017, City and Developer entered into an Exclusive Negotiating Agreement to discuss proposed terms for the disposition of the City Property and development of the proposed mixed -use hotel and commercial/retail project on the City Property and the Developer Property. D. On July 5, 2017, the Parties entered into a First Amendment to the Exclusive Negotiation Agreement, and on January 11, 2019, the Parties entered in to a Second Amended and restated Exclusive Negotiation Agreement (No. A-2018-002) which expired on its own terms on April 28, 2019. E. On May 7, 2019, the Parties entered into a Second Exclusive Negotiation Agreement (No. A-2019-062) which was effective until May 7, 2020. F. On April 22, 2020, the Parties entered into the First Amendment to the Second Exclusive Negotiation Agreement which is effective until October 23, 2020. G. The proposed Project and Parking Structure will result in the redevelopment of underutilized land and aging structures, development of apartments and extended stay hotel rooms to accommodate a demand in Downtown Santa Ana and to the nearby Orange County Courthouse facility, increased employment opportunities within the City and additional property taxes, sales 1 55 394.00049\3323920112 75A-212 taxes and transient occupancy taxes produced from the Project Site H. Based on the reasons identified in Recital G, above, together with the commitments and obligations of the Developer to develop the Project Site as contained in this Agreement, the City has determined the conveyance of the Project Site to the Developer for development in accordance with this Agreement is in the best interest of the City. L The City desires to convey the Property and the Developer desires to accept the Property for the purpose of development of the Project including the Parking Structure on the Property on the terms and conditions set forth in this Agreement. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH THE PARTIES ACKNOWLEDGE, AND PURSUANT TO THE PROMISES AND COVENANTS SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE, AS FOLLOWS: ARTICLE 1 PURPOSE, PARTIES, AND PROJECT SITE 1.1 Recitals. The Recitals are hereby incorporated into this Agreement. 1.2 Purpose. The purpose of this Agreement is to set forth the obligations of the Parties and the terms and conditions precedent for the conveyance of the City Property from the City to the Developer, and the design, development, construction and operation of the Project and Parking Structure on the Project Site. The City has determined that the construction and operation of the Project by Developer within the City will stimulate direct and indirect economic activity within the City, will enhance the quality of life of residents and will provide substantial additional intangible benefits to the City. As such, the development of the Project Site pursuant to this Agreement and the fulfillment generally of this Agreement are in the vital and best interests of the City, and the health, safety, morals and welfare of its residents and in accord with the public purposes and provisions of applicable federal, state and local laws and requirements. 1.3 Parties. 1.3.1 The City. The City is the City of Santa Ana, a California charter city in the State of California. The principal office of the City is located at 20 Civic Center Plaza, Santa Ana, California, 92702. 1.3.2 The Developer. The Developer is Caribou Industries, Inc., a Nevada Corporation. The principal address of the Developer is 1103 N. Broadway, Santa Ana, CA 92701. Whenever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. (a) The qualifications and identity of the Developer are of particular concern to the City, and it is because of such qualifications and identity that the City has entered 2 55 394.00049\3323920112 75A-213 into this Agreement with the Developer. Except as otherwise provided in this Section 1.3.2 no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement, and the Developer shall not assign all or any part of this Agreement without the prior written approval of the City, which approval will be in the City's sole discretion exercised in good faith. This Agreement may be terminated by the City if there is any significant change (voluntary or involuntary) in the management or control of the Developer without City's prior written approval, which approval will not be unreasonably withheld. Except as otherwise provided in this Agreement, for an approved assignment to be effective, the Developer and assignee shall enter into an assignment and assumption agreement in a form reasonably approved by the City. (b) Notwithstanding the foregoing, the following assignments or transfers of this Agreement and the Project Site shall be permitted: (i) the sale or lease of commercial, food or beverage space to tenants or end -users, for occupancy upon completion; (ii) an assignment as security for a construction and/or development loan from a lender, subject to the approval by City pursuant to this Agreement, which approval shall not be unreasonably withheld, conditioned, or delayed; (iii) any other assignment or transfer after the issuance of a certificate of occupancy for the Project. 1.4 The Project Site. The Project Site is comprised of (1) the Developer Property and (2) the City Property. The City Property and the Developer Property are generally shown on the Map of the Project Site attached hereto as Exhibit "G". ARTICLE 2 DEFINITIONS 2.1 Defined Terms. In addition to the usage of certain words, terms or phrases that are defined in the initial paragraph, the Recitals or in the body of this Agreement, the following words, terms and phrases are used in this Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation: 2.1.1 "Affiliate" of any specified Person means any other Person, directly or indirectly, Controlling or Controlled by or under common Control with such specified Person. 2.1.2 "Approvals" means any and all general plan amendments, zone changes, specific plans, licenses, permits, approvals, consents, certificates (including certificate(s) of occupancy), rulings, variances, authorizations, or amendments to any of the foregoing, as shall be necessary or appropriate under any Law to commence, perform, or complete any construction, demolition, installation, use, maintenance, repair, occupancy or operation of the Project. 2.1.3 "Automobile Liability Insurance" means insurance coverage against claims of Personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non -owned vehicles used by the Developer regarding the Project, with minimum 55 394.00049\3323920112 75A-214 limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall be provided by a business or commercial vehicle policy. 2.1.4 `Bankruptcy Law" means Title 11, United States Code, and any other or successor State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters. 2.1.5 `Bankruptcy Proceeding' means any proceeding, whether voluntary or involuntary, under any Bankruptcy Law. 2.1.6 "Builder's Risk Insurance" means "All Risk" builder's risk insurance on a completed value (non -reporting) basis, in an amount sufficient to prevent coinsurance, but in any event not less than 100% of replacement value, including cost of debris removal, but excluding foundation and excavations, naming The City and The Developer, as their interests may appear. Such insurance shall also: (a) contain a waiver of subrogation against subcontractors; (b) state that "permission is granted to complete and occupy"; (c) cover, for replacement value, all materials and equipment on or about any offsite storage location intended for use for the Project; and (d) provide for a deductible not exceeding Ten Thousand Dollars ($10,000). 2.1.7 "CEQA" means the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. 2.1.8 "CEQA Document" means any Addendum, Negative Declaration (mitigated or otherwise) or any Environmental Impact Report (including any addendum, amendment, subsequent or supplemental document) required by any Government to issue any discretionary Approval required for the Project. 2.1.9 "City Deed' means the deed in substantially the form of Exhibit "C" to this Agreement, conveying all of the City's interest in the Property to the Developer and containing a right of the City retake the Property under certain circumstances. 2.1.10 "City Funded Improvements" means the funding by the City of the actual reasonable costs up to a total of a maximum thirteen million dollars ($13,000,000) for the (i) the demolition of the existing three (3) level parking structure located on the Property, (ii) the preparation of the Project site for construction to a rough grade condition; (iii) the construction of Parcel A ("Public Parking Parcel") containing 211 public parking Spaces within the 10-story Parking Structure containing 444 parking spaces; (iv) construction of the private street reconnecting Sycamore Street between 3rd Street and 4th Street). 2.1.11 "City Manager" means the City Manager of the City or his or her designee or successor in function. 2.1.12 "City Parties" means, collectively, the City, its governing body, elected officials, employees, agents and attorneys. 4 55 394.00049\3323920112 75A-215 2.1.13 " City Party" means, individually, the City, its governing body, elected officials, employees, agents or attorneys. 2.1.14 "City's Title Notice Response" means the written response of the City to the Developer's Title Notice, in which the City elects to either: (i) cause the removal from the Preliminary Report of any matter disapproved in the Developer's Title Notice, (ii) obtain title insurance in a form reasonably satisfactory to the Developer insuring against the effects of any matters disapproved or conditionally approved in the Developer's Title Notice, (iii) otherwise satisfy the Developer regarding any matter disapproved or conditionally approved in the Developer's Title Notice, or (iv) not to take any action described in either (i), (ii) or (iii). 2.1.15 "Claims" means any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract or under statute, at law, in equity or otherwise), charges, awards, assessments, fines or penalties of any kind (including consultant and expert fees and expenses, Legal Costs of counsel retained by the City Parties, expert fees, costs of staff time and investigation costs of whatever kind or nature), and judgments, including, but not limited to, claims for: (i) injury to any Person (including death at any time resulting from that injury); (ii) loss of, injury or damage to, or destruction of property (including all loss of use resulting from that loss, injury, damage, or destruction) regardless of where located, including the property of the City Parties; (iii) any workers' compensation claim or determination; (iv) any Prevailing Wage Action; or (v) any Environmental Claim. 2.1.16 "Close of Escrow" means the recording of the City Deed in the official records of the County and completion of each of the actions set forth in Section 4.7 by the Escrow Agent for the conveyance of the Property from the City to the Developer. 2.1.17 "Construction Management Team" means the people designated by the City Manager to monitor the construction of the Parking Structure and Sycamore Street between 3rd Street and 4th Street. 2.1.18 "Construction Period" means the time period between the Close of Escrow and the issuance of the last Certificate of Completion for the Project. 2.1.19 "Contractor's Insurance" means Contractor's comprehensive general and automobile liability insurance for not less than One Million Dollars ($1,000,000) for personal injury and One Million Dollars ($1,000,000) for broad form property damage, including premises - operations liability, contractor's protective liability for all subcontractors' operations, completed operations, contractual liability (referring to the indemnity provisions of the applicable construction contract(s)), and automobile liability (owned and non -owned), and for any foundation, excavation, or demolition work, an endorsement that such operations are covered and that the "XCU Exclusions" have been deleted, which insurance may be in the form of a single limit policy or policies. 2.1.20 "Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether by ownership of Equity Interests, by contract or otherwise. 2.1.21 "Controlling" and "Controlled" mean exercising or having Control. 5 55 394.00049\3323920112 75A-216 2.1.22 "Coup " means the County of Orange, California. 2.1.23 "Covenant Period" means the thirty (30) years commencing on the date of issuance of last Certificate of Completion for the Project. 2.1.24 "CPI" means the United States Department of Labor, Bureau of Labor Statistics "Consumer Price Index" for Urban Wage Earners and Clerical Workers (CPI-W) published for the Anaheim -Santa Ana -Irvine Metropolitan Statistical Area, with a base of 1982- 1984 = 100. If the CPI ceases to be published, with no successor index, then the Parties shall reasonably agree upon a reasonable substitute index. The CPI for any date means the CPI last published before the calendar month that includes such date. 2.1.25 " CPI Adjustment Factor" means, as of any date, the greater of (a) 1.00 or (b) the CPI for such date divided by the CPI for the Commencement Date. 2.1.26 "Default" means any Monetary Default or Non -Monetary Default. 2.1.27 "Developer Official Action" means the official action of the Developer authorizing the Developer's entry into and performance of this Agreement, in substantially the form attached to this Agreement as Exhibit "E," executed by the authorized representative(s) of the Developer. 2.1.28 "Developer Parties" means, collectively, the directors, officers, employees and agents of the Developer. 2.1.29 "Developer Party" means, individually, the directors, officers, employees or agents of the Developer. 2.1.30 "Developer's Title Notice" means a written Notice from the Developer to both the City and the Escrow Agent indicating the Developer's acceptance of the state of the title to the Property, as described in the Preliminary Report, or the Developer's disapproval of specific matters shown in Schedule B of the Preliminary Report, as exceptions to coverage under the proposed Title Policy, describing in suitable detail the actions that the Developer reasonably believes are indicated to obtain the Developer's approval of the state of the title to the Property. 2.1.31 "Developer's Title Notice Waiver" means a written Notice from the Developer to both the City and the Escrow Agent waiving the Developer's previous disapproval in the Developer's Title Notice of specific matters shown in Schedule B of the Preliminary Report, as exceptions to coverage under the proposed Title Policy. 2.1.32 "Due Diligence Completion Notice" means a written Notice of the Developer delivered to both the City and the Escrow Agent, prior to the end of the Due Diligence Period, indicating the Developer's unconditional acceptance of the condition of the Property or indicating the Developer's rejection or conditional acceptance of the condition of the Property and refusal to accept a conveyance of fee title to the Property, describing in reasonable detail the actions that the Developer reasonably believes are indicated to allow the Developer to unconditionally accept the condition of the Property. 6 55 394.00049\3323920112 75A-217 2.1.33 "Due Diligence Investigations" means the Developer's due diligence investigations of the Property to determine the suitability of the Property for development or operation of the Project, including, without limitation, investigations of the environmental and geotechnical suitability of the Property, as deemed appropriate in the reasonable discretion of the Developer, all at the sole cost and expense of the Developer. 2.1.34 "Due Diligence Period" means the one hundred and eighty (180) calendar day period commencing on the day immediately following the Effective Date and ending at 5:00 p.m. Pacific Time on the one hundred eightieth (180a') consecutive day thereafter. 2.1.35 "Effective Date" means the first date on which all of the following have occurred: (i) the City has received two (2) counterpart originals of this Agreement executed by the authorized representative(s) of the Developer; (ii) the City has received a certified copy of the Developer Official Action executed by the authorized representative(s) of the Developer; (iii) this Agreement has been approved by the City Council; (iv) this Agreement has been executed by the authorized representative(s) of the City; (v) an original of this Agreement executed by the authorized representative(s) of the City has been delivered by the City to the Developer. 2.1.36 "Environmental Claims" means any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, Legal Costs and costs of environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever directly or indirectly relating to or arising from any actual or alleged violation of any Environmental Law occurring during or arising from the Developer's Due Diligence Investigations, the Developer's ownership or occupancy of the Property, the Developer's construction, installation or operation of the Project or any other actions of or attributable to the Developer regarding the Property. 2.1.37 "Environmental Law" means any Law regarding any of the following at, in, under, above, or upon the Property: (a) air, environmental, ground water, or soil conditions; or (b) clean-up, control, disposal, generation, storage, release, transportation, use of, or liability or standards of conduct concerning, Hazardous Substances. 2.1.38 "Escrow" means an escrow, as defined in Civil Code Section 1057 and Financial Code Section 17003(a), that is conducted by the Escrow Agent with respect to the conveyance of Property from the City to the Developer, pursuant to this Agreement. 2.1.39 "Escrow Agent" means Fidelity National Title Company or such other Person mutually agreed upon in writing by the City and the Developer. 2.1.40 "Escrow Closing Date" means the earlier of: (i) on or before the fifth (5th) business day following the Escrow Agent's receipt of written confirmation from both the City and the Developer of the satisfaction or waiver of all conditions precedent to the Close of Escrow or (ii) September 30, 2022. If Developer is unable to meet the conditions precedent to the Close of Escrow within this time period, Developer shall have the right to request an extension of the Escrow Closing Date to September 30, 2023, which extension may be granted or withheld in the City Manager's reasonable discretion 55 394.00049\3323920112 75A-218 2.1.41 "Escrow Opening Date" means the first date on which a fully executed copy of this Agreement and the Deposit are deposited with the Escrow Agent. 2.1.42 "Event of Default" means the occurrence of any one or more of the following: (a) Monetary Default. A Monetary Default that continues for seven (7) days after Notice from the non -defaulting Party, specifying in reasonable detail the amount of money not paid and the nature and calculation of each such payment. (b) Prohibited Liens. Failure of the Developer to cause any Prohibited Lien to be released within fifteen (15) days after Notice of such lien to the Developer. (c) Bankruptcy or Insolvency. The Developer ceases to do business as a going concern, ceases to pay its debts as they become due or admits in writing that it is unable to pay its debts as they become due, or becomes subject to any Bankruptcy Proceeding (except an involuntary Bankruptcy Proceeding dismissed within sixty (60) days after commencement), or a custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure is made with respect to, substantially all of the Developer's assets or the Developer's interest in this Agreement (unless such appointment, attachment, execution, or other seizure was involuntary and is contested with diligence and continuity and vacated and discharged within sixty (60) days). (d) Transfer. The occurrence of a Transfer, other than a Permitted Transfer, whether voluntarily or involuntarily or by operation of Law, in violation of the terms and conditions of this Agreement. (e) Non -Monetary Default. Any Non -Monetary Default, other than those specifically addressed in Sections 2.1.42(b) through 2.1.42(d), that is not cured within thirty (30) days after Notice to the Developer describing the Non -Monetary Default in reasonable detail, or, in the case of a Non -Monetary Default that cannot with reasonable due diligence be cured within thirty (30) days after such Notice, if the Developer does not do all of the following: (i) within thirty (30) days after the City's Notice, advise the City of the Developer's intention to take all reasonable steps to cure such Non -Monetary Default; (ii) duly commence such cure within such period, and then diligently prosecute such cure to completion; and (iii) complete such cure within a reasonable time under the circumstances. 2.1.43 "Federal" means the government of the United States of America. 2.1.44 "Final" means, relative to an Approval or any CEQA Document, when all administrative appeal periods regarding such matter have expired, all administrative appeals or challenges regarding such matter (if any) have been resolved to both the City's and the Developer's reasonable satisfaction, all statutory periods for challenging such matter have expired, all litigation or other proceedings (if any) challenging any such matter have been resolved to both the City's and the Developer's reasonable satisfaction and all appeal periods relating to any such litigation or other proceedings have expired. 55 394.00049\3323920112 75A-219 2.1.45 "FIRPTA Affidavit' means an affidavit complying with Section 1445 of the United States Internal Revenue Code. 2.1.46 "Form 593" means a California Franchise Tax Board Form 593-C. 2.1.47 "Good Industry Practice" means standards, practices, methods and procedures conforming to the Law and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in the operation of a similar type hotel under the under the same or similar circumstances. 2.1.48 "Hazardous Substance" means flammable substances, explosives, radioactive materials, asbestos, asbestos -containing materials, polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, medical wastes, toxic substances or related materials, explosives, petroleum, petroleum products, and any "hazardous" or "toxic' material, substance or waste that is defined by those or similar terms or is regulated as such under any Law, including any material, substance or waste that is: (i) defined as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. § 1317), as amended; (ii) substances designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (iii) defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., as amended; (iv) defined as a "hazardous substance" or "hazardous waste" under Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfixnd Reauthorization Act of 1986,42 U.S.C. § 9601, et seq., or any so-called "superfund" or "superlien" law; (v) defined as a "pollutant' or "contaminant' under 42 U.S.C.A. § 9601(33); (vi) defined as "hazardous waste" under 40 C.F.R. Part 260; (vii) defined as a "hazardous chemical" under 29 C.F.R. Part 1910; any matter within the definition of "hazardous substance" set forth in 15 U.S.C. § 1262; (viii) any matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [ 15 U.S.C. Sections 2601, et seq.]; (ix) any matter, waste or substance regulated under the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; (x) those substances listed in the United States Department of Transportation (DOT)Table [49 CFR 172.101]; (xi) any matter, waste or substances designated by the EPA, or any successor authority, as a hazardous substance [40 CFR Part 302]; (xii) any matter, waste or substances defined as "hazardous waste" in Section 25117 of the California Health and Safety Code; (xiii) any substance defined as a "hazardous substance" in Section 25316 of the California Health and Safety Code; (xiv) any matter, waste, or substance that is subject to any other Law regulating, relating to or imposing obligations, liability or standards of conduct concerning protection of human health, plant life, animal life, natural resources, property or the enjoyment of life or property free from the presence in the environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (xv) other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under any Laws or the regulations adopted pursuant to any Laws, including manure, asbestos, polychlorinated biphenyl, flammable explosives and radioactive material. 2.1.49 "Hazardous Substance Discharge" means any deposit, discharge, generation, release, or spill of a Hazardous Substance that occurs at on, under, into or from the Property, or during transportation of any Hazardous Substance to or from the Property (whether on its own or contained in other material or property), or that arises at any time from the use or 9 55 394.00049\3323920112 75A-220 operation of the Project or any activities conducted at on, under or from the Property or any adjacent or nearby real property, or resulting from seepage, leakage, or other transmission of Hazardous Substances from other real property to the Property, whether or not caused by a Party or whether occurring before or after the Close of Escrow. 2.1.50 "Hotel Anniversary Date" means the annual anniversary of the date that the Hotel had the first guest completed the first overnight stay for compensation in the Hotel. 2.1.51 "Hotel Project" means the development of the hotel containing seventy-five (75) rooms, on the Property, including eighty-three (83) parking spaces which includes forty-two (42) stacking parking spaces, all required or associated on -site and off -site improvements, all hardscape and all landscaping, all as specifically described in Exhibit "E" attached hereto and incorporated herein by reference, and all to be developed in accordance with the terms and conditions of this Agreement, plans and specifications approved by the City and any conditions imposed by the City in its approval of the Developer's development application(s) related to the Hotel Project. 2.1.52 "Indemnify' means, where this Agreement states that any Indemnitor shall "indemnify" any Indemnitee from, against, or for a particular matter, that the hndemnitor shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against any and all loss, cost, claims, liability, penalties, judgments, damages, and other injury, detriment, or expense (including Legal Costs, interest and penalties) that the Indemnitee suffers or incurs: (a) from, as a result of, or on account of the particular matter; or (b) in enforcing the Indemnitor's indemnity obligation. "Indemnified" shall have the correlative meaning. 2.1.53 "Indemnitee" means any Person entitled to be Indemnified under the terms of this Agreement. 2.1.54 "Indemnitor" means a Party that agrees to Indemnify any other Person. 2.1.55 "Insurance Documents" means certified copies of insurance policies, original certificates of insurance or endorsements evidencing all insurance coverage required to be obtained by the Developer, pursuant to Section 5.9. 2.1.56 "Law" means all laws, ordinances, requirements, orders, proclamations, directives, rules, and regulations of any Government applicable to the Property or the Project, in any way, including any development, use, maintenance, taxation, operation, or occupancy of, or environmental conditions affecting the Property or the Project, or relating to any taxes, or otherwise relating to this Agreement or any Party's rights or remedies under this Agreement, or any Transfer of any of the foregoing, whether in force on the Effective Date or passed, enacted, or imposed at some later time, subject in all cases, however, to any applicable waiver, variance, or exemption. 2.1.57 "Legal Costs" of any Person means all reasonable costs and expenses such Person incurs in any legal proceeding (or other matter for which such Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys' fees, court costs and expenses and consultant and expert witness fees. 10 55 394.00049\3323920112 75A-221 2.1.58 "Liability Insurance" means general comprehensive public liability insurance against claims for Personal injury, death or property damage occurring upon, in, or about the Property, the Project adjoining streets or passageways, providing coverage for a combined single limit of One Million Dollars ($1,000,000) for any one occurrence. The City may increase such limit up to once every three (3) years, upon at least one hundred eighty (180) days' Notice to the Developer, provided that any increased limit: (a) does not exceed the limit initially set forth in this Section 2.1.58 multiplied by the CPI Adjustment Factor, rounded to the nearest multiple of One Hundred Thousand Dollars ($100,000). 2.1.59 "Maintenance Deficiency" shall have the meaning ascribed to the term in Section 8.1.2. 2.1.60 "Maintenance Standard" shall have the meaning ascribed to the term in Section 8.1.1. 2.1.61 "Mixed Use Project" means the development of the mixed use residential project, including an apartment complex with 171 residential units, 13,419 square feet of commercial space, and 196 residential parking spaces within the Parking Structure on the Property, including all required or associated on -site and off -site improvements, all hardscape and all landscaping, all as specifically described in Exhibit "F" attached hereto and incorporated herein by reference, and all to be developed in accordance with the terms and conditions of this Agreement, plans and specifications approved by the City and any conditions imposed by the City in its approval of the Developer's development application(s) related to the Mixed Use Project. 2.1.62 "Monetary Default" means any failure by either Party to pay or deposit, when and as this Agreement requires, any amount of money, or evidence of any insurance coverage, whether to or with a Party or a third -party. 2.1.63 "Non -Monetary Default" means the occurrence of any of the following, except to the extent constituting a Monetary Default: (i) any failure of a Party to perform any of its obligations under this Agreement; (ii) a Party's failure to comply with any material restriction or prohibition in this Agreement; or (iii) any other event or circumstance that, with passage of time or giving of Notice, or both, or neither, would constitute a Default under this Agreement. 2.1.64 "Notice" means any consent, demand, designation, election, Notice, or request relating to this Agreement, including any Notice of Default. All Notices must be in writing. 2.1.65 "Notice of Default" means any Notice claiming or giving Notice of a Default or alleged Default. 2.1.66 "Notice of Agreement" means a notice, in substantially the form of Exhibit "D" to this Agreement, to be recorded against the Property at the Close of Escrow to provide constructive record notice of the existence and application of this Agreement to the Property. 2.1.67 "Not 'means give a Notice. 2.1.68 "Parking Structure" means the 10 story parking structure containing 444 parking spaces 211 public parking spaces, and 196 residential parking spaces, and 83 Hotel parking 11 55 394.00049\3323920112 75A-222 spaces which are accomplished by tandem as well as the use of mechanical lifts, as more particularly described in Exhibit "F" attached hereto and incorporated herein by reference. 2.1.69 IWO Report' means a preliminary change of ownership report required under California Revenue and Taxation Code Section 480.3. 2.1.70 "Performance Schedule" means the schedule for the performance of certain actions by the City or the Developer, pursuant to the terms and conditions of this Agreement, attached to this Agreement as Exhibit `B." 2.1.71 "Permitted Encumbrance" means (i) any deed of trust or financing instrument in connection with Developer's construction financing or permanent financing of the Project, (ii) the Project approvals and all other entitlements, permits with respect to the Project obtained in accordance with this Agreement or otherwise with the approval of the City, (iii) all easements, encumbrances, licenses, and other use agreements in connection with the development of the Project and covenants, conditions, restrictions necessary or desirable in connection with the development, operation and use of the Project, and (iv) any other third party agreement contemplated in this Agreement or as reasonably necessary or desirable in connection with the development, use or occupancy of the Project. 2.1.72 "Permitted Exceptions" means: (i) any and all items shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that the Developer does not disapprove or conditionally approve or that are otherwise accepted or consented to by the Developer; (ii) any exceptions from coverage under the proposed Title Policy resulting from the Developer's activities on the Property; (iii) any lien for non -delinquent property taxes or assessments; (iv) any Laws applicable to the Property; (v) this Agreement; (vi) the City Deed; (vii) any other matter provided for in this Agreement. 2.1.73 "Person" means any association, corporation, governmental entity or City, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization, or other entity of any kind. 2.1.74 "Pre -Closing Liquidated Damages Amount" means the amount of Twenty Five Thousand Dollars ($25,000). 2.1.75 "Preliminary Report" means a preliminary report issued by the Title Company in contemplation of the issuance of the Title Policy, accompanied by copies of all documents listed in Schedule B of the report, as exceptions to coverage under the proposed Title Policy. 2.1.76 "Prevailing Wage Action" means: (i) any determination by the State Department of Industrial Relations that prevailing wage rates should have been paid, but were not, (ii) any determination by the State Department of Industrial Relations that higher prevailing wage rates than those paid should have been paid, (iii) any administrative or legal action or proceeding arising from any failure to comply with the California Labor Code provisions regarding prevailing wage payments, including maintaining certified payroll records pursuant to California Labor Code 1776, or (iv) any administrative or legal action or proceeding to recover wage amounts pursuant to California Labor Code Section 1781. 12 55 394.00049\3323920112 75A-223 2.1.77 "Project" means the development of the Mixed Use Project, Parking Structure, and Hotel Project as specifically described in Exhibit "F" attached hereto and incorporated herein by reference, and all to be developed in accordance with the terms and conditions of this Agreement, plans and specifications approved by the City and any conditions imposed by the City in its approval of the Developer's development application(s) related to the Proj ect. 2.1.78 "Project Completion Date" means September 30, 2024 if the Escrow Closing Date is on or before September 30, 2022. If Developer was granted an extension of the Escrow Closing Date by the City Manager pursuant to Section 2.1.40 then the Project Completion Date shall be September 30, 2025. 2.1.79 "Property Insurance" means insurance providing coverage for the Project and the Property, against loss, damage, or destruction by fire and other hazards encompassed under the broadest form of property insurance coverage then customarily used for like properties in the County (except earthquake or war risk) from time to time, in an amount equal to one hundred percent (100%) of the Full Replacement Value (without deduction for depreciation) of the Project (excluding excavations and foundations) and in any event sufficient to avoid co-insurance, with "ordinance or law" coverage. Such insurance may contain a deductible clause not exceeding Five Thousand Dollars ($5,000) multiplied by the then current CPI Adjustment Factor. To the extent customary for like properties in the County at the time, such insurance shall include coverage for explosion of steam and pressure boilers and similar apparatus located on the Property; coverage for terrorism; coverage against damage or loss by flood, if the Property is located in an area in which flood insurance is available under the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as such laws may be amended, modified or replaced from time to time; an "increased cost of construction" endorsement; and an endorsement covering demolition and cost of debris removal. 2.1.80 "Property Insurance Proceeds" means net proceeds (after reasonable costs of adjustment and collection, including Legal Costs) of Property Insurance, when and as received by the Developer. 2.1.81 "Property Transfer" means any "change in ownership," as defined in Revenue and Taxation Code Sections 60, et seq., of all or any portion of the Property. 2.1.82 "Public Parking Parcel" means Parcel A as shown in Exhibit K and incorporated herein by this reference as though fully set forth herein. The Public Parking Parcel is owned by the City and located within the Parking Structure and contains 211 public parking spaces. 2.1.83 "RevPAR" means revenue per available room and it is a performance metric used in the hotel industry. It is calculated by dividing a hotel's total room revenue by the total number of available rooms in the period being measured. 2.1.84 "Record," "recorded," "recording" or "recordation" each mean recordation of the referenced document in the official records of the Recorder of the County. 2.1.85 "State" means the State of California. 13 55 394.00049\3323920112 75A-224 2.1.86 "Title Company" means First American Title Company or such other title insurance company as mutually agreed upon between the City and the Developer in writing. 2.1.87 "Title Policy' means a standard owner's policy of title insurance issued by the Title Company, with coverage in the amount of the Purchase Price and insuring fee title to the Property vested in the Developer, subject to the Permitted Exceptions. 2.1.88 "Transfer" of any property, right or obligation means any of the following, whether by operation of law or otherwise, whether voluntary or involuntary, and whether direct or indirect: (a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate in such property, right or obligation or any part of it (including the grant of any easement, lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or obligation by the holders of such Equity Interest(s); (c) any transaction described in "b" affecting any Equity Interest(s) or any other interest in such property, right or obligation or in any such owner (or in any other direct or indirect owner at any higher tier of ownership) through any manner or means whatsoever; or (d) any transaction that is in substance equivalent to any of the foregoing. A transaction affecting Equity Interests, as referred to in clauses "b" through "d," shall be deemed a Transfer by the Operator even though the Operator is not technically the transferor. A "Transfer" shall not, however, include any of the foregoing (provided that the other Party to this Agreement has received Notice of such occurrence) relating to any Equity Interest: (a) that constitutes a mere change in form of ownership with no material change in beneficial ownership and constitutes a tax-free transaction under federal income tax law and the State real estate transfer tax; (b) to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit; or (c) to any Person that, as of the Commencement Date, holds an Equity Interest in the entity whose Equity Interest is being transferred. 2.1.89 "Unavoidable Delay" means a delay in either Party performing any obligation required to be performed by such Parry under this Agreement, except payment of money, arising from or on account of any cause whatsoever beyond the Party's reasonable control, despite such Party's reasonable diligent efforts, including acts of God, inclement weather, strikes, labor troubles or other union activities (but only to the extent such actions do not result from an act or omission of the Party), casualty, war, acts of terrorism or riots, governmental orders or actions, litigators seeking to challenge, prohibit, alter or delay the Project or any Approval related thereto, moratoria, delays that result from any pandemic or epidemic,including, but not limited to, public health orders issued by governmental authorities that contribute to or cause such a delay. Unavoidable Delay shall not include delay caused by a Parry's financial condition, illiquidity, or insolvency. 2.1.90 "Usury Limit" means the highest rate of interest, if any, that Law allows under the circumstances. 2.1.91 "Waiver of Subrogation" means a provision in, or endorsement to, any Liability Insurance, Automobile Liability Insurance or Property Insurance policy, by which the insurance carrier agrees to waive rights of recovery by way of subrogation against any Person for any loss such policy covers. 14 55 394.00049\3323920112 75A-225 2.1.92 "Workers' Compensation Insurance" means worker's compensation insurance complying with the provisions of State Law and an employer's liability insurance endorsement, with commercially standard limits, covering all employees of the Developer, its contractors and vendors. ARTICLE 3 PROPERTY DISPOSITION 3.1 Prior to City Conveyance of Property. Prior to City conveying the Property to Developer and Developer accepting the property from the City, Developer shall provide sufficient evidence that is satisfactory to the City, in City's sole and absolute discretion, that the following have been completed: 3.1.1 Developer has obtained all entitlements for the entirety of the Project. 3.1.2 Developer has obtained proof of construction financing for the entirety of the Project. 3.1.3 Developer has obtained permanent financing for the entirety of the Project, which may include equity investment by the Developer or a third party. 3.1.4 Developer has obtained all necessary building permits for the entirety of the Proj ect 3.1.5 Developer and City have executed an agreement regarding the Bond Financing or other financing the City deems appropriate and Developer's obligation regarding repayment of the debt service obligations. 3.1.6 Developer and City have agreed upon an acceptable demolition schedule based upon contractors' schedule. 3.1.7 Developer and City have executed the Grant of Easements and Reciprocal Access, Parking Operation and Maintenance Agreement, attached hereto as Exhibit K. 3.1.8 Developer shall to provide to the City a draft of the Covenant, Conditions and Restrictions (CC&R's), in compliance with ARTICLE 6, for review and approval in compliance with Section 6.1. 3.1.9 City has satisfied the terms of Section 5.10.1. 3.2 Purchase and Sale. Once Developer has satisfied Section 3.1 and City has satisfied Section 5.10 City shall convey land to the Developer for the Mixed Use Project and the Developer shall accept the Property from the City, pursuant to the terms and conditions of this Agreement. City shall retain ownership of the parcel containing the 211 public parking spaces contained within the Parking Structure and Developer shall grant City an easement for street, highway and public utility purposes over, under and upon the private portion of Sycamore Street between 3rd Street and 4th Street which shall be constructed by Developer as part of this 15 55 394.00049\3323920112 75A-226 Agreement. For the purposes of exchanging funds and documents to complete the conveyance of the Property from the City to the Developer, the City and the Developer agree to open Escrow with the Escrow Agent. The provisions of ARTICLE 4 of this Agreement are the joint escrow instructions of the Parties to the Escrow Agent for the conduct of Escrow. If requested by the Escrow Agent, the Developer and the City shall execute the Escrow Agent's reasonable standard or general escrow instructions. Any provision in the Escrow Agent's standard or general escrow instructions that purports to exculpate the Escrow Agent from or require the Developer or the City to indemnify the Escrow Agent against the Escrow Agent's negligence or willful misconduct shall be deemed "unreasonable" and shall not be included in any standard or general escrow instructions requested by the Escrow Agent. In the event of any conflict between the provisions of this Agreement and any such standard or general escrow instructions requested by the Escrow Agent, the provisions of this Agreement shall be controlling. 3.3 Title Approval. 3.3.1 Developer's Title Notice. Within five (5) days after the Effective Date of this Agreement, the City shall request the Preliminary Report from the Title Company, with instructions to the Title Company to deliver a copy of the Preliminary Report to the Developer concurrent with delivery of the Preliminary Report to the City. Within thirty (30) days following the Developer's receipt of the Preliminary Report, the Developer shall deliver the Developer's Title Notice to the City. 3.3.2 Failure to Deliver Developer's Title Notice. If the Developer fails to deliver Developer's Title Notice to the City, within thirty (30) days following the Developer's receipt of the Preliminary Report, the Developer will be deemed to disapprove the status of title to the Property and refuse to accept title to the Property. 3.3.3 City's Title Notice Response. Within fifteen (15) days following the earlier of the City's receipt of Developer's Title Notice or expiration of the time period provided in this Section 3.3.3 for delivery of Developer's Title Notice, the City shall serve City's Title Notice Response. If the Developer's Title Notice does not disapprove or conditionally approve any matter in the Preliminary Report or the Developer fails to deliver the Developer's Title Notice, the City shall not be required to serve City's Title Notice Response. If the City does not serve City's Title Notice Response, if necessary, within fifteen (15) days following its receipt of the Developer's Title Notice, the City shall be deemed to elect not to take any action in reference to the Developer's Title Notice. If the City elects in City's Title Notice Response to take any action in reference to the Developer's Title Notice, the City shall take such action, prior to the Escrow Closing Date. Notwithstanding the foregoing, the City agrees to remove prior to the Escrow Closing Date all monetary liens and encumbrances of the Property other than non -delinquent real property taxes and assessments. and such liens and encumbrances shall not constitute permitted exceptions. 3.3.4 Developer's Title Notice Waiver. If the City elects or is deemed to have elected not to take any action in reference to the Developer's Title Notice, then within seven (7) days following the earlier of (1) the Developer's receipt of City's Title Notice Response or (2) the expiration of the time period provided in Section 3.3.3 for delivery of City's Title Notice Response, the Developer shall either: (i) refuse to accept the title to and conveyance of the Property, or (ii) waive its disapproval or conditional approval of any matters set forth in the Developer's Title 16 55 394.00049\3323920112 75A-227 Notice by delivering the Developer's Title Notice Waiver to the City. Failure by the Developer to timely deliver the Developer's Title Notice Waiver, where City's Title Notice Response or the City's failure to serve City's Title Notice Response indicates or results in the City's election not to take any action in reference to the Developer's Title Notice, will be deemed the Developer's continued refusal to accept the title to and conveyance of the Property, in which case either the City or the Developer shall have the right to cancel the Escrow and terminate this Agreement, in their respective sole and absolute discretion, until such time (if ever) as the Developer delivers the Developer's Title Notice Waiver. Any termination of this Agreement and cancellation of the Escrow pursuant to this Section 3.3.4 shall be without liability to the other Party or any other Person, and shall be accomplished by delivery of a written Notice of termination to both the other Party and the Escrow Agent, in which case the Parties and the Escrow Agent shall proceed pursuant to Section 4.11. 3.4 Developer Due Diligence Investigations. 3.4.1 License to Enter. The City licenses and permits the Developer to enter the Property solely for the purpose of undertaking and completing such Due Diligence Investigations as the Developer deems necessary and appropriate. The license provided in this Section 3.4.1 shall expire upon the Close of Escrow or earlier termination of this Agreement. The Developer shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Developer shall abide by any reasonable additional condition(s) of entry onto the Property required by the City, whether or not set forth in this Agreement. Any Due Diligence Investigations of the Property by the Developer shall not unreasonably disrupt any then existing use or occupancy of the Property or the operations of the City. 3.4.2 Limitations. The Developer shall not conduct any intrusive or destructive testing of any portion of the Property, other than low volume soil samples, without the City Manager's prior written consent which shall not be unreasonably withheld. Following the conduct of any Due Diligence Investigations on the Property, the Developer shall restore the Property to substantially its condition prior to the conduct of such Due Diligence Investigations. 3.4.3 Indemnity; Insurance. The activities of the Developer or its agents directly or indirectly related to the Developer's Due Diligence Investigations shall be subject to the Developer's indemnity, defense and hold harmless obligations under this Agreement. Prior to commencing any Due Diligence Investigations on the Property, the Developer shall deliver copies of policies or original certificates of all Liability Insurance required to be delivered pursuant to Section 5.9. 3.4.4 Due Diligence Completion Notice. The Developer shall deliver a Due Diligence Completion Notice to the City and the Escrow Agent prior to the end of the Due Diligence Period. If the Developer does not unconditionally accept the condition of the Property by delivery of its Due Diligence Completion Notice indicating such acceptance, prior to the end of the Due Diligence Period, the Developer shall be deemed to have rejected the condition of the Property and refused to accept conveyance of title to the Property. If the condition of the Property is rejected or deemed rejected by the Developer, then the City or the Developer shall have the right to cancel the Escrow and terminate this Agreement, in their respective sole and absolute discretion, until such time (if ever) as the City receives the Due Diligence Completion Notice stating the 17 55 394.00049\3323920112 75A-228 Developer's unconditional acceptance of the condition of the Property. Any termination of this Agreement and cancellation of the Escrow, pursuant to this Section 3.4.4, shall be without liability to the other Party or any other Person, and shall be accomplished by delivery of a written Notice of termination to the other Party and the Escrow Agent, in which case the Parties and the Escrow Agent shall proceed pursuant to Section 4.11. 3.4.5 No Representations or Warranties. The Developer shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with all Laws applicable to the development or use of the Property by the Developer and any other matters relevant to the condition or suitability of the Property for the development or operation of the Project, as the Developer may deem necessary or appropriate. Except for the representations and warranties contained in this Agreement and any documents or instruments referenced herein or delivered in accordance herewith, the City makes no representation or warranty, express or implied, to the Developer relating to the condition of the Property or suitability of the Property for any intended use or development by the Developer. 3.4.6 Acceptance of Property 'AS -IS.' Except for the representations and warranties contained in this Agreement and any documents or instruments referenced herein or delivered in accordance herewith, the Developer shall accept all conditions of the Property, without any liability of the City Parties whatsoever, upon the Developer's unconditional acceptance of the condition of the Property indicated in its Due Diligence Completion Notice. The Developer's delivery of its Due Diligence Completion Notice indicating the Developer's unconditional acceptance of the condition of the Property shall evidence the Developer's unconditional and irrevocable acceptance of the Property in the Property's AS IS, WHERE IS, SUBJECT TO ALL FAULTS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION and with full knowledge of the physical condition of the Property, the nature of the City's interest in and use of the Property, all Laws applicable to the Property, the Permitted Exceptions and of any and all conditions, restrictions, encumbrances and all matters of record relating to the Property. The Developer's delivery of its Due Diligence Completion Notice indicating the Developer's unconditional acceptance of the condition of the Property shall constitute the Developer's representation and warranty to the City that the Developer has received assurances acceptable to the Developer by means independent of the City or any agent of the City of the truth of all facts material to the Developer's acquisition of the Property pursuant to this Agreement, and that the Property is being acquired by the Developer as a result of its own knowledge, inspection and investigation of the Property and not as a result of any representation(s) made by the City or any employee, official, consultant or agent of the City relating to the condition of the Property, unless such statement or representation is expressly and specifically set forth in this Agreement. The City hereby expressly and specifically disclaims any express or implied warranties regarding the Property. 3.5 City Pre -Closing Document Approval. 3.5.1 Developer Delivery of Documents. The Developer shall deliver all of the following described documents to the City, at least, forty-five (45) calendar days prior to the Escrow Closing Date: 18 55 394.00049\3323920112 75A-229 (a) All Insurance Documents; (b) Any covenants, conditions or restrictions proposed for the Property; and 3.5.2 City Approval. Within thirty (30) calendar days after the City receives any item required to be delivered to the City by the Developer pursuant to Section 3.1, the City shall Notify the Developer whether or not such submitted matter is reasonably acceptable to the City. Any Notice from the City stating that a particular submitted matter is not acceptable to the City shall also state the actions that the City reasonably believes are required to make such matter acceptable to the City. Within thirty (30) calendar days after receipt of any Notice from the City stating that a submitted matter is not acceptable to the City, the Developer shall appropriately revise any matter disapproved by the City in a manner intended in good faith to obtain the City's approval of such matter and re -submit such matter to the City for approval. The process applicable to the City's consideration of the initial submittal of any matter shall apply to any re -submittal of such matter, following its disapproval by the City. If the City fails to Notify the Developer that it does not approve of any submitted matter within the requisite thirty (30) calendar period, then the City shall be deemed to have approved such matter. 3.6 City Relocation Assistance. 3.6.1 Relocation. The Property currently has a public parking structure. The City currently sells monthly parking passes, and thirty (30) parking spaces are leased to California State University, Fullerton Foundation. The lease with California State University, Fullerton Foundation is set to expire on December 31, 2028. The City will work with California State University, Fullerton Foundation to relocate the thirty (30) leased parking spaces. If the relocation cannot be accomplished the Developer will accommodate the lease as part of the 211 public parking spaces. The City has no known relocation and related obligations. Notwithstanding the foregoing, as between the City and the Developer, the City shall be responsible, at its sole cost and expense, for any and all relocation and related expenses attributable to the relocation of the occupants of the Property, if any. The City shall defend, indemnify and hold the Developer and its officers, employees, agents, attorneys, and contractors harmless from and against all liability for any relocation and related expenses attributable to the development of the Property and the relocation of its previous occupants. ARTICLE 4 JOINT ESCROW INSTRUCTIONS 4.1 Opening of Escrow. The City and the Developer shall cause the Escrow to be opened no later than January 1, 2021. The Escrow Agent shall promptly confirm the Escrow Opening Date in writing to each of the Parties. The Escrow Closing Date shall be on or before September 30, 2022 unless the Escrow Closing Date is extended as provided in this Agreement. This ARTICLE 4 shall constitute the joint escrow instructions of the City and the Developer to the Escrow Agent for conducting of the Escrow. 19 55 394.00049\3323920112 75A-230 4.2 Escrow Agent Authority. The City and the Developer authorize the Escrow Agent to: 4.2.1 Charge. Pay and charge the Developer for the applicable fees, charges and costs payable regarding the Escrow; 4.2.2 Settlement/Closing Statements. Release each Party's Escrow settlement/closing statement to the other Party; and 4.2.3 Document Recording. Record any instruments delivered for recording through the Escrow in the official records of the Recorder of the County, pursuant to the joint instructions of the Parties. 4.3 Developer's Conditions to Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by the Developer, the Developer's obligation to accept the conveyance and title of the Property from the City on the Escrow Closing Date shall be subject to the satisfaction or waiver of each of the following conditions precedent, each of which can only be waived in writing by the Developer: 4.3.1 Title. The Developer agrees to accept the title to and conveyance of the Property, pursuant to Section 3.3; 4.3.2 Due Diligence. The Developer delivers its Due Diligence Completion Notice to both the City and the Escrow Agent indicating the Developer's unconditional acceptance of the condition of the Property, prior to the expiration of the Due Diligence Period; 4.3.3 Title Policy. The Title Company is, upon payment of the Title Company's standard premium for such an insurance policy, irrevocably and unconditionally committed to issue the Title Policy to the Developer, at the Close of Escrow; 4.3.4 Consistency Finding. The Planning Commission of the City has determined that the disposition of the Property to this Agreement is consistent with the City's General Plan, in accordance with Government Code Section 65402; 4.3.5 Approvals. Final issuance of all discretionary Approvals required from any Government to construct, install or operate the applicable portion of the Project on the Property, on terms and conditions reasonably acceptable to the Developer; 4.3.6 CEQA Documents. Final adoption, approval or certification of the CEQA Documents, if any; 4.3.7 City Escrow Deposits. The City deposits all of the items into the Escrow required by Section 4.6; 4.3.8 Settlement/Closing Statement. The Developer approves the Escrow Agent's final estimated closing/settlement statement; and 20 55 394.00049\3323920112 75A-231 4.3.9 City's Material Obligations. The City performs all of its material obligations required to be performed by the City under this Agreement prior to the Close of Escrow and the City's representations and warranties set forth in this Agreement remain true in all material respects, and the City is not otherwise in default under this Agreement. 4.4 City's Conditions to Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by the City, the City's obligation to convey the Property to the Developer on or before the Escrow Closing Date shall be subject to the satisfaction or waiver of each of the following conditions precedent, each of which can only be waived in writing by the City: 4.4.1 Title. The Developer agrees to accept the title to and conveyance of the Property, pursuant to Section 3.3; 4.4.2 Due Diligence. The Developer delivers its Due Diligence Completion Notice to both the City and the Escrow Agent indicating the Developer's unconditional acceptance of the Property, prior to the expiration of the Due Diligence Period; 4.4.3 Approvals. Final issuance of all discretionary Approvals required from any Government to construct, install or operate the applicable portion of the Project on the Property, on terns and conditions reasonably acceptable to the Developer, including but not limited to building permits; 4.4.4 CEQA Documents. Final adoption, approval or certification of the CEQA Documents, if any; 4.4.5 Title Policy. The Title Company is upon payment of the Title Company's standard premium for such insurance policy, irrevocably and unconditionally committed to issue the Title Policy to the Developer, at the Close of Escrow; 4.4.6 Insurance Documents. The Developer delivers the Insurance Documents and the City has approved all such evidence of insurance, all pursuant to Section 3.5; 4.4.7 Developer's Escrow Deposits. The Developer deposits all of the items into the Escrow required by Section 4.5; 4.4.8 Settlement/Closing Statement. The City approves the Escrow Agent's final estimated closing/settlement statement; 4.4.9 Consistency Finding. The Planning Commission of the City and the City Council have determined that the disposition of the Property pursuant to this Agreement is consistent with the City's General Plan, in accordance with Government Code Section 65402; and 4.4.10 Developer's Material Obligations. The Developer performs all of its material obligations required to be performed by the Developer under this Agreement prior to the Close of Escrow and the Developer's representations and warranties set forth in this Agreement remain true in all material respects, and the Developer is not otherwise in default under this Agreement.. 21 55 394.00049\3323920112 75A-232 4.5 Developer's Escrow Deposits. At least one (1) business day prior to the Escrow Closing Date scheduled by the Escrow Agent in a writing delivered to both of the Parties, the Developer shall deposit the following described fiends and documents into the Escrow and, concurrently, provide a copy of each such document to the City: 4.5.1 PCO Report. A PCO Report executed by the authorized representative(s) of the Developer; 4.5.2 Insurance Documents. Any copies of insurance policies or original certificates of insurance required to be delivered to the City by the Developer on or before the Close of Escrow, pursuant to Section 3.5.1; 4.5.3 Acceptance of City Deed. The Certificate of Acceptance of the City Deed, in substantially the form attached to the City Deed, executed by the authorized representative(s) of the Developer in recordable form; 4.5.4 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the Developer in recordable form; 4.5.5 Other Funds and Documents. Such other funds or documents required from the Developer under the terms of this Agreement to close the Escrow or by the Escrow Agent in the performance of the Escrow Agent's contractual or statutory obligations regarding the Escrow. 4.6 City's Escrow Deposits. At least one (1) business day prior to the Escrow Closing Date scheduled by the Escrow Agent in a writing delivered to both of the Parties, the City shall deposit the following described fiends and documents into the Escrow and, concurrently, provide a copy of each such document to the Developer: 4.6.1 City Deed. The City Deed executed by the authorized representative(s) of the City in recordable form; 4.6.2 FIRPTA Affidavit. The FIRPTA Affidavit completed and executed by the authorized representative(s) of the City; 4.6.3 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the City in recordable form; 4.6.4 Form 593. A Form 593 executed by the authorized representative(s) of the City; and 4.6.5 Other Funds and Documents. Such other fiends or documents required from the City under the terms of this Agreement to close the Escrow or by the Escrow Agent in the performance of the Escrow Agent's contractual or statutory obligations regarding the Escrow. 4.7 Closing Procedure. When each of the Developer's Escrow deposits, as set forth in Section 4.5, and each of the City's Escrow deposits, as set forth in Section 4.6, are deposited into the Escrow, the Escrow Agent shall request confirmation in writing from both the Developer and the City that each of their respective conditions to the Close of Escrow, as set forth in Section 22 55 394.00049\3323920112 75A-233 4.3 and Section 4.4, respective, are satisfied or waived. Upon the Escrow Agent's receipt of written confirmation from both the City and the Developer that each of their respective conditions to the Close of Escrow are either satisfied or waived, the Escrow Agent shall schedule the Escrow Closing Date by written Notice to both Parties and, thereafter, shall close the Escrow by doing all of the following: 4.7.1 Recordation and Distribution of Documents. Escrow Agent shall file the following documents with the office of the Recorder of the County for recording in the official records of the County, in the following order, at the Close of Escrow: (i) the City Deed, with the Developer's certificate of acceptance attached, (ii) the Notice of Agreement, and (iii) any other documents to be recorded through the Escrow upon the joint instructions of the Parties. The Escrow Agent shall deliver conformed copies of all documents filed for recording in the official records of the County and originals or copies of all other documents delivered through the Escrow to the City, the Developer and any other Person designated in the joint escrow instructions of the Parties to receive an original or conformed copy of each such document. Each copy of a document filed for recording shall show all recording information. The Parties intend and agree that this Section 4.7 shall establish the relative priorities of the documents to be recorded in the official records of the County through the Escrow, by providing for recordation of senior interests prior in time to junior interests, as provided in this Section 4.7; 4.7.2 PCO Report. File the PCO Report with the office of the Recorder of the County of Riverside, California; 4.7.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States Internal Revenue Service; Board; 4.7.4 Form 593. File the Form 593 with the State of California Franchise Tax 4.7.5 Title Policy. Obtain and deliver the Title Policy to the Developer; 4.7.6 Funds. Return all remaining funds held by the Escrow Agent for the account of the Developer to the Developer, less the Developer's share of the Escrow closing costs, and less any other charges to the account of the Developer. 4.7.7 Report to IRS. Following the Close of Escrow and prior to the last date on which such report is required to be filed with the Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, the Escrow Agent shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue Service on Form 1099-13, Form W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e) or the associated Federal regulations. Upon the filing of such reporting form with the Internal Revenue Service, the Escrow Agent shall deliver a copy of the filed form to both the City and the Developer. 4.8 Close of Escrow. The Close of Escrow shall occur on or before the Escrow Closing Date. The Parties may mutually agree to change the Escrow Closing Date by joint written instruction to the Escrow Agent. If for any reason the Close of Escrow has not occurred on or before the Escrow Closing Date, then any Party not then in default of this Agreement may cancel 23 55 394.00049\3323920112 75A-234 the Escrow and terminate this Agreement, without liability to the other Party or any other Person for such cancellation and termination, by delivering written Notice of termination to both the other Party and the Escrow Agent. Thereafter, the Parties and the Escrow Holder shall proceed pursuant to Section 4.10 and Section 4.11. Without limiting the right of either Party to cancel the Escrow and terminate this Agreement, pursuant to the first sentence of this Section 4.8, if the Escrow does not close on or before the Escrow Closing Date, and neither Party has exercised its contractual right to cancel the Escrow and terminate this Agreement before the first date on which the Escrow Holder is in a position to close the Escrow, then the Escrow shall close as soon as reasonably possible following the first date on which the Escrow Agent is in a position to close the Escrow, pursuant to the terms and conditions of this Agreement. 4.9 Escrow Closing Costs, Taxes and Title Policy Premium. The Developer shall pay all Escrow fees and such other costs as the Escrow Agent may charge for the conduct of the Escrow. The Developer shall pay the premium charged by the Title Company for the Title Policy, exclusive of any endorsements or other supplements to the coverage of the Title Policy that may be requested by the Developer, and any documentary transfer tax relating to the conveyance of the Property from the City to the Developer through the Escrow that is due at the Close of Escrow. The Developer shall pay any and all recording fees, any and all other charges, fees and taxes levied by a Government arising or relating to the conveyance of the Property through the Escrow and the cost of any endorsements or supplements to the coverage of the Title Policy requested by the Developer. The Escrow Agent shall Notify both the Developer and the City of the costs to be borne by Developer at the Close of Escrow by delivering the Escrow Agent's estimated closing/settlement statement to both the City and the Developer, at least four (4) business days prior to the Escrow Closing Date. 4.10 Escrow Cancellation Charges. If the Escrow fails to close due to an Event of Default attributable to the City, the City shall pay all customary and reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order, if any. If the Escrow fails to close due to an Event of Default attributable to the Developer, the Developer shall pay all customary and reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order, if any. If the Escrow fails to close for any reason other than an Event of Default attributable to either the Developer or the City, the Developer and the City shall each pay one-half (1/2) of any customary and reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order, if any. 4.11 Escrow Cancellation. If the Escrow is cancelled and this Agreement is terminated pursuant to a contractual right granted to a Party in this Agreement to cancel the Escrow and terminate this Agreement, other than due to an Event of Default attributable to the other Party, the Parties shall pay any associated costs in accordance with Section 4.10 and do each of the following: 4.11.1 Cancellation Instructions. The Parties shall, within three (3) business days following receipt of the Escrow Agent's written request, execute any reasonable Escrow cancellation instructions requested by the Escrow Agent; and 4.11.2 Return of Funds and Documents. Within seven (7) days following receipt by the Parties of a settlement statement from the Escrow Agent of cancellation charges regarding cancellation of the Escrow and the Title Policy order, if any: (i) the Developer or the Escrow 24 55 394.00049\3323920112 75A-235 Agent, respectively, shall return to the City any documents previously delivered by the City to the Developer or the Escrow Agent regarding the Escrow, (ii) the City or the Escrow Agent, respectively, shall return to the Developer all documents previously delivered by the Developer to the City or the Escrow Agent regarding the Escrow; (iii) the Escrow Agent shall return to the Developer any fiends deposited into the Escrow by the Developer, except as otherwise provided in Section 9.2, less the Developer's share of any customary and reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order, if any, in accordance with Section 4.10; and (iv) the Escrow Holder shall return to the City any funds deposited into the Escrow by the City, less the City's share of any customary and reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order, if any, in accordance with Section 4.10. 4.12 Escrow Notices. All notices and communications from the Escrow Agent to the Parties shall be given in the manner provided in Section 10.5 of this Agreement. ARTICLE 5 PROJECT DEVELOPMENT 5.1 Developer Covenant to Develop Project. The Developer covenants to and for the exclusive benefit of the City that the Developer shall commence and complete the development of the Project on the Property, within the time period for such action set forth in the Performance Schedule. The Developer covenants and agrees for itself, its successors and assigns that the Property shall be improved and developed with the Project, in conformity with the terms and conditions of this Agreement and all applicable Laws and conditions of each Government. The covenants of this Section 5.1 shall run with the land of the Property, until the earlier of: (i) the date of issuance of the last Certificate of Completion or the Certificate of Occupancy for the Proj ect. 5.2 Developer to Obtain all Project Approvals. 5.2.1 Submission of Development Application. The Developer shall, within the time period(s) for such actions set forth in the Performance Schedule, prepare and submit a complete development application and any other required application, document, fee, charge or other item (including, without limitation, deposit, fund or surety) required for construction or installation of the Project, pursuant to all applicable Laws and Approvals, to each necessary Government for review and approval. The City's zoning, building and land use regulations (whether contained in ordinances, the City's municipal code, conditions of approval or elsewhere) and the alternate procurement process (SAMC Section 33-204), shall be applicable to the construction and installation of the Project on the Property by the Developer, pursuant to this Agreement. The Developer acknowledges that all plans and specifications and any changes to any plans or specifications for the Project shall be subject to all applicable Laws and Approvals. The Developer shall obtain all entitlements, permits and other approvals for construction and installation of the Project on the Property from each Government, within the time periods for such actions set forth in the Performance Schedule, and prior to the commencement of any construction or installation of the applicable portion(s) of the Project. 25 55 394.00049\3323920112 75A-236 5.2.2 Reservations. The approval of this Agreement by the City shall not be binding on the City Council, the Planning Commission, Design Review Committee or any other commission, committee, board or body of the City regarding any approvals of the Project required by such bodies. No action by the City with reference to this Agreement or any related documents shall be deemed to constitute issuance or waiver of any required City permit, approval or authorization regarding the Property, the Projector the Developer. The Developer obtains no right, permit or entitlement to construct or install the Project on the Property or any portion of the Property by virtue of this Agreement. 5.2.3 Project Changes. If any revisions of the Project are required by a Government, the Developer shall promptly make any such revisions that are: (i) generally consistent with the Scope of Development and (ii) would not result in any material additional improvements not identified in the Developer's submitted application. 5.2.4 Conditions of Approval. Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all conditions of approval contained within any approvals, permits or other governmental actions regarding the construction or installation of the Project on the Property, that are both: (i) generally consistent with this Agreement and the Project Description and (ii) imposed after a public hearing in accordance with the City's approval process, where a public hearing is legally required for the issuance of the approval, permit or other governmental action. 5.2.5 Developer Payment of Costs and Fees. Except as set forth in Section 5.10, the Developer and the City agree that the City shall not provide any financial assistance to the Developer in connection with the construction or installation of the Project. The Developer shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees, permits, applications, and other expenses associated with the Project. The Developer shall pay any and all fees pertaining to the review and approval of the Project by each Government and utility service providers, including the costs of preparation of all required construction, planning and other documents reasonably required by each Government or utility service provider pertinent to the construction, installation or operation of the Project on the Property, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents. The Developer shall obtain any and all necessary governmental approvals, prior to the commencement of applicable portions of construction and installation of the Project, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during the construction and installation of the Project. (a) Developer acknowledges and agrees that pursuant to Section 5.10 City will fund based on actual reasonable costs to a maximum cost of thirteen million dollars ($13,000,000) for (i) the demolition of the existing three (3) level parking structure located on the Property, (ii) the preparation of the Project site for construction to a rough grade condition; (iii) the construction of Public Parking Parcel; (iv) construction of the street reconnecting Sycamore Street between 3rd Street and 4th Street ("City Funded Improvements"). (i) Developer shall submit to City monthly invoices including supporting documentation showing the actual costs incurred for the City Funded Improvements. 26 55 394.00049\3323920112 75A-237 (ii) City shall review the invoices and supporting documentation. In City's sole and absolute discretion determines additional information is needed City will specify the additional information or documentation that is needed, and Developer shall provide the requested documentation within fourteen (14) days, unless a City grants a longer period of time for compliance. Should Developer fail to timely provide the requested documentation the expense shall be deemed unreasonable. (iii) City can object to any expenses the City determines is unreasonable contained in the monthly invoices. Within fourteen (14) days, Developer shall have the right to provide additional supporting documentation to justify the reasonableness of the expense to the City. City shall review any additional supporting documentation provided by Developer to reconsider the reasonableness of the expense for the City Funded Improvements. (iv) City shall pay any reasonable costs for the construction of the City Funded Improvements within forty-five (45) days of receipt of monthly invoice or the receipt of the additionally requested documentation or additional information, whichever comes later. (b) Developer acknowledges that Developer is solely responsible for the actual demolition and construction of the City Funded Improvements and is solely responsible for any costs of the City Funded Improvements that exceed thirteen million dollars ($13,000,000). (c) The City Funded Improvements shall be completed prior to Developer requesting any Certificate of Completion or Certificate of Occupancy for any building or unit within the Project. (d) Within ninety (90) days from the issuance of the last Certificate of Completion or Certification of Occupancy for any building or unit within the Project, Developer shall submit a complete accounting of the reasonable unreimbursed hard and soft costs for the Construction of the Hotel Project ("Hotel Project Accounting") and the reasonable unreimbursed hard and soft costs for the Construction the Mixed Use Project ("Mixed Use Project Accounting") shall be provided to City. The Hotel Project Accounting plus the Mixed Use Project Accounting equals Final Developer Accounting. ("Final Developer Accounting"). 5.2.6 Developer shall obtain performance bonds, labor and material bonds for the amount required by the City prior to obtaining any building permits for any portion of the Project. 5.3 Developer Changes to Plans and Specifications During Course of Construction of Project. The Developer shall have the right, during the course of construction of the Mixed Use Project and Hotel Project, to make "minor field changes," without seeking the approval of the City, if such changes do not affect the type of use to be conducted within all or any portion of a structure. "Minor field changes" shall be defined as those changes from the approved construction drawings, plans and specifications that have no substantial effect on the Project and are made in order to expedite the work of construction in response to field conditions. Nothing contained in this Section 5.3 shall be deemed to constitute a waiver of or change in any Approvals governing any such "minor field changes" or in any Approvals by any Government otherwise required for any such "minor field changes." Developer shall obtain prior written approval of the City Manager 27 55 394.00049\3323920112 75A-238 or City Manager's designee for any change from the approved construction drawings, plans and specifications for the Parking Structure and Sycamore Street between 3rd Street and 4th Street. 5.4 Construction Start and Completion of Project. 5.4.1 The Developer shall commence construction and installation of the Project in accordance with the Performance Schedule. Thereafter, the Developer shall diligently proceed to complete the construction and installation of the Project, in a good and workmanlike manner, in accordance with the Performance Schedule and all applicable Laws and all Approvals for the Project issued by each Government. 5.4.2 Developer shall attend monthly meetings with the Construction Management Team. At least 24 hours prior to the meeting, Developer shall provide a written report of the progress of the Project that has occurred since the prior meeting and detailed financial reports of the expenditure of City funds. Developer shall provide any additional documentation requested by the Construction Management Team regarding the Parking Structure and Sycamore Street between 3rd Street and 4th Street. The Construction Management Team may at its sole discretion schedule the meetings with Developer on a more frequent basis. 5.4.3 On or before the Project Completion Date, the Developer shall (a) Record a Notice of Completion, in accordance with California Civil Code Section 3093, for the entirety of the Project; (b) Cause the Project to be inspected by each Government and correct any defects and deficiencies that may be disclosed by any such inspection; (c) Cause all occupancy certificates and other Approvals necessary for the occupancy and operation of the completed Project to be duly issued; and (d) After commencement of the work of improvement of the Project, the Developer shall not permit the work of improvement of the Project to cease or be suspended for a time period in excess of forty-five (45) calendar days, either consecutively or in the aggregate, other than as a result of an Unavoidable Delay. The City Manager, in his or her sole and absolute discretion, may extend the Project Completion Date for up to an additional sixty (60) days, in the aggregate. 5.5 Compliance with Laws. All work performed in connection with the construction or installation of the Project shall comply with all applicable Laws and Approvals. 5.6 Performance Schedule. All planning construction, installation and other development obligations and responsibilities of the Developer related to the Project shall be initiated and completed within the times specified in the Performance Schedule, or within such reasonable extensions of such times granted by the City Manager or as otherwise provided for in this Agreement. 5.7 Developer Attendance at City Meetings. The Developer agrees to have one or more of its employees or consultants who are knowledgeable regarding this Agreement and the 28 55 394.00049\3323920112 75A-239 development of the Park Improvements, such that such Person(s) can meaningfully respond to City staff questions regarding the progress of the Project, attend in -person or telephonic meetings with City staff or meetings of the City governing body, when requested to do so by City staff, with reasonable advance written Notice to the Developer. 5.8 PREVAILING WAGES AND COMMUNITY WORKFORCE AGREEMENT. 5.8.1 THE DEVELOPER ACKNOWLEDGES AND AGREES THAT THE CITY HAS INFORMED DEVELOPER THAT THE PROJECT IS SUBJECT TO PREVAILING WAGES. THE DEVELOPER AGREES WITH THE CITY THAT THE DEVELOPER SHALL ASSUME ANY AND ALL RESPONSIBILITY AND BE SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT LABORERS EMPLOYED RELATIVE TO THE CONSTRUCTION OR INSTALLATION OF THE PROJECT MUST BE PAID THE PREVAILING PER DIEM WAGE RATE FOR THEIR LABOR CLASSIFICATION, AS DETERMINED BY THE STATE, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. 5.8.2 THE DEVELOPER AGREES WITH THE CITY THAT THE DEVELOPER SHALL BE SUBJECT TO THE COMMUNITY WORKFORCE AGREEMENT DATED 2017, ATTACHED HERETO AS EXHIBIT H FOR ANY DEMOLITION OR CONSTRUCTION OF THE PROJECT. DEVELOPER SHALL OBTAIN A LETTER OF ASSENT (ATTACHMENT A OF THE WORKFORCE AGREEMENT) FOR EACH AND EVERY CONTRACTOR AWARDED WORK COVERED BY THE COMMUNITY WORKFORCE AGREEMENT PRIOR TO COMMENCING WORK ON THE PROJECT. 5.8.3 THE DEVELOPER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS, WAIVES AND RELEASES THE CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781. THE DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 5.8, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 5.8.4 BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 5.8: Initials o Authorized Developer Representative 29 55 394.00049\3323920112 75A-240 5.8.5 ADDITIONALLY, THE DEVELOPER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, PURSUANT TO SECTION 9.6, AGAINST ANY CLAIMS PURSUANT TO LABOR CODE SECTION 1781 ARISING FROM THIS AGREEMENT OR THE CONSTRUCTION OR INSTALLATION OF ALL OR ANY PORTION OF THE PROJECT. 5.9 Insurance. The Developer, to protect the City Parties against any and all claims and liability for death, injury, loss and damage resulting from the Developer's actions in connection with this Agreement, the Property and the Project, shall, at the Developer's sole cost and expense, until issuance of a Certificate of Completion for the Project, maintain the following insurance (or its then reasonably available equivalent): (a) Liability Insurance; (b) Property Insurance; (c) Builder's Risk Insurance; and (d) Worker's Compensation Insurance. Additionally, the Developer, to protect the City Parties, shall cause its contractors and subcontractors, at their sole cost and expense, until issuance of the last Certificate of Completion for the Project, to maintain Contractor's Insurance. 5.9.1 Nature of Insurance. All Liability Insurance, Property Insurance, Automobile Liability Insurance and Contractor's Insurance policies this Agreement requires shall be issued by carriers that: (a) are listed in the then current `Best's Key Rating Guide Property/Casualty United States & Canada" publication (or its equivalent, if such publication ceases to be published) with a minimum financial strength rating of "A" and a minimum financial size category of "VII'; and (b) are admitted to do business in the State of California by the California Department of Insurance. The Developer may provide any insurance under a "blanket" or "umbrella" insurance policy, provided that (i) such policy or a certificate of such policy shall specify the amount(s) of the total insurance allocated to the Property and the Project, which amount(s) shall equal or exceed the amount(s) required by this Agreement and shall not be reduced for claims made for other properties; and (ii) such policy otherwise complies with this Agreement. 5.9.2 Policy Requirements and Endorsements. All insurance policies this Agreement requires shall contain (by endorsement or otherwise) the following provisions: (a) Insured. Liability Insurance, Automobile Liability Insurance and Contractor's Insurance policies shall name the City Parties as "additional insured." Property Insurance Policies shall name the City as a "loss payee." The coverage afforded to the City Parties shall be at least as broad as that afforded to the Developer and may not contain any terms, conditions, exclusions, or limitations applicable to the City Parties that do not apply to the Developer. (b) Primary Coverage. All policies shall be written as primary policies, not contributing to or in excess of any coverage that the City Parties may carry. (c) Contractual Liability. Liability Insurance policies shall contain contractual liability coverage, for the Developer's indemnity obligations under this Agreement. The Developer's obtaining or failure to obtain such contractual liability coverage shall not relieve the Developer from nor satisfy any indemnity obligation of the Developer under this Agreement. 30 55 394.00049\3323920112 75A-241 (d) Deliveries to the City. Prior to the commencement of any Due Diligence Investigations, and no later than twenty (20) days before any insurance required by this Agreement expires, is cancelled or its liability limits are reduced or exhausted, the Developer shall deliver to the City certificates of insurance evidencing the Developer's maintenance of all insurance this Agreement requires. Each insurance carrier shall give the City no less than thirty (30) calendar days' advance written Notice of any cancellation, non -renewal, material change in coverage or available limits of liability under any insurance policy required by this Agreement. Also, phrases such as "endeavor to" and "but failure to mail such Notice shall impose no obligation or liability of any kind upon the company" shall not be included in the cancellation wording of any certificates of insurance or any coverage for the City Parties. (e) Waiver of Certain Claims. The Developer shall attempt in good - faith to cause the insurance carrier for each Liability Insurance, Automobile Liability Insurance and Property Insurance policy to agree to a Waiver of Subrogation, if not already in the policy. To the extent that the Developer actually obtains insurance with a Waiver of Subrogation, the Parties release each other, and their respective authorized representatives, from any claims for damage to any Person or property that are caused by or result from risks insured against under such insurance policies. (f) No Representation. Neither Party makes any representation that the limits, scope, or forms of insurance coverage this Agreement requires are adequate or sufficient. (g) No Claims Made Coverage. None of the insurance coverage required under this Agreement may be written on a claims -made basis. (h) Fully Paid and Non -Assessable. All insurance obtained and maintained by the Developer in satisfaction of the requirements of this Agreement shall be fully paid for and non -assessable. (i) City Option to Obtain Coverage. During the continuance of an Event of Default arising from the Developer's failure to carry any insurance required by this Agreement, the City may, at its sole option, purchase any such required insurance coverage and the City shall be entitled to immediate payment from the Developer of any premiums and associated costs paid by the City for such insurance coverage. Any amount becoming due and payable to the City under this Section 5.9 that is not paid within fifteen (15) calendar days after written demand from the City for payment of such amount, with an explanation of the amounts demanded, will bear interest from the date of the demand at the rate of ten percent (10%) per annum or the maximum rate allowed by California law, whichever is less. Any election by the City to purchase or not to purchase insurance otherwise required by the terms of this Agreement to be carried by the Developer shall not relieve the Developer of its obligation to obtain and maintain any insurance coverage required by this Agreement. 0) Cross -Liability; Severability of Interests. All Liability Insurance and Contractor's Insurance shall be endorsed to provide cross -liability coverage for the Developer and the City Parties and to provide severability of interests. 31 55 394.00049\3323920112 75A-242 (k) Deductibles and Self -Insured Retentions. The Developer shall pay or cause to be paid any and all deductibles and self -insured retentions under all insurance policies issued in satisfaction of the teens of this Agreement regarding any claims relating to the City Parties. (1) No Separate Insurance. The Developer shall not carry separate or additional insurance concurrent in form or contributing in the event of loss with that required under this Agreement, unless endorsed in favor of the City, as required by this Agreement. (m) Insurance Independent of Indemnification. The insurance requirements of this Agreement are independent of the Developer's indemnification and other obligations under this Agreement and shall not be construed or interpreted in any way to satisfy, restrict, limit, or modify the Developer's indemnification or other obligations or to limit the Developer's liability under this Agreement, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall the provision of such insurance preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise at law or in equity. 5.10 Development of the Project. 5.10.1 City Funded Improvements. Upon Developer's satisfaction of Section 3.1 City shall fund the following based on reasonable actual costs to a maximum cost of $13 million dollars ($13,000,000): (a) The demolition of the existing three (3) level parking structure located on the Property. condition. (b) The preparation of the Project site for construction to a rough grade (c) The construction of a Public Parking Parcel. (d) The construction of a private street reconnecting Sycamore Street between 3rd Street and 4th Street. Developer shall grant the City an easement for street, highway and public utility purposes over, under and upon Sycamore Street between 3rd Street and 4th Street. 5.10.2 City Financing. City retains its sole and unfettered discretion as to any and all decisions regarding the funding of the $13 million dollars ($13,000,000) for the City Funded Improvements listed in 5.10.1. (a) If City utilizes bonds to finance the City Funded Improvements then Developer shall be solely financially responsible for all costs and debt service until the bonds have been repaid in their entirety. (b) If the City utilizes an alternative source of private financing to finance the City Funded Improvements then Developer shall be solely financially responsible for all costs and debt service associated with the private financing until the 32 55 394.00049\3323920112 75A-243 private financing has been repaid in its entirety (c) If the City utilizes City Funds to finance the construction of the City Funded Improvements then Developer shall pay City for all costs, including staff time associated with the City Self Financing, in addition to interest charged at Local Agency Investment Fund (LAIF) rate, said rate shall readjust July 1s1 of each year. The maximum term of the repayment shall be thirty (30) years. (d) Developer shall personally guarantee the City Financing and said guarantee shall be recorded against the Property. Said guarantee shall prohibit the subdivision of the property until such time as the City Funded Improvements have been paid in their entirety. Should Developer fail to make a monthly payment, City shall be entitled to Foreclose upon the Property. City shall be entitled to recover the unpaid portion of the City Funded Improvements and any costs associated with the Funding and Foreclosure including but not limited to the time and expenses of the City Attorney's Office, other City staff, any Consultants or experts retained in connection with the Third Party Challenge, attorney's fees of City's selected outside counsel, and litigation costs shall be fully reimbursed to City by the fends obtained in the Foreclosure. 5.11 Mixed Use Project 5.11.1 Upon satisfaction of the terms of Section 3.1, the City shall convey the parcels for the Mixed Use Project and Hotel Project to Developer as specifically described in Exhibit "C" attached hereto and incorporated herein by reference in compliance with the terms of this Agreement. 5.11.2 Developer shall construct the Mixed Use Project which shall contain: (a) An apartment complex containing 171 residential units. (b) 18,824 square feet of commercial space (including 3,449 square feet of office, 11,066 square feet retail, 4,309 square feet food and beverage) (c) The Parking Structure containing 444 parking spaces which includes 196 residential parking spaces within the Public Parking Structure. 5.12 Hotel Project. 5.12.1 Developer will design and construct a hotel consistent with the Automobile Association of America (AAA) minimum acceptable conditions to be considered a AAA Hotel, containing seventy-five (75) rooms with eighty-three (83) parking spaces which includes forty- two (42) mechanical stacker spaces. 5.12.2 The Developer shall provide the following minimum amenities: (a) Fitness Room (b) Community Meeting Space 33 55 394.00049\3323920112 75A-244 (c) Baggage Storage (d) Elevators (e) 24-hour Pantry Market (f) Multi -Lingual Staff (g) Safety Deposit Box (h) ATM 5.12.3 Developer will use best efforts to execute an operating agreement with an established Hotel Chain. If Developer is unsuccessful in securing an Agreement with an established Hotel Chain Operator then Developer shall self -operate the Hotel in accordance with Good Industry Practices for a hotel. Hotel operations shall be subject to the Hotel Operating Agreement attached hereto as Exhibit "I". (a) Within 120 days of execution of this Agreement, Developer shall provide City either a copy of a letter of interest from a recognized hotel operator or a detailed Alternative Management Plan for the operation of the Hotel. (b) City may request additional information or documentation for the Alternative Management Plan; and Developer shall provide said requested information or documentation. (c) Within ninety (90) days of City's approval of the construction drawings, Developer shall provide either proof of Hotel Operator Commitment or proof of sufficient financing to implement the Alternative Management Plan. 5.12.4 Hotel Conversion. The Developer shall only be entitled to submit an application to City to convert the hotel to apartments if any of the following thresholds are established: (a) On the Third Hotel Anniversary Date, if for the period between the Second Hotel Anniversary Date through the day before the Third Hotel Anniversary the RevPAR falls below $125.00. (b) On the Fourth Hotel Anniversary Date, if for the period between the Third Hotel Anniversary Date through the day before the Fourth Hotel Anniversary the RevPAR falls below $125.00. (c) On the Fifth Hotel Anniversary Date if for the period between the Fourth Hotel Anniversary Date through the day before the Fifth Hotel Anniversary the RevPAR falls below $125.00. 34 55 394.00049\3323920112 75A-245 (d) On the Sixth Hotel Anniversary Date if for the period between The Fifth Hotel Anniversary Date through the day before the Sixth Hotel Anniversary the RevPAR falls below $125.00. 5.12.5 Any application for conversion shall be subject to approval of all applicable City entitlements, including compliance with all affordable housing and inclusionary housing requirements. Developer understand and acknowledges that, in the context of processing the application to convert the hotel to apartments, the City cannot guarantee the ultimate outcome of any public hearings before the Planning Commission or the City Council or other public bodies of the City, nor prevent any opposition thereto by members of the public or other agencies affected by or interested in the Project. By entering into this Agreement, the City does not pre -commit or imply that the application to convert the hotel to apartments to be considered for approval will be approved. The City retains the discretion to approve, conditionally approve, or disapprove the application to convert the hotel to apartments. 5.13 Parking Structure and Sycamore Street. 5.13.1 City shall retain ownership of the Public Parking Parcel within the Parking Structure. Prior to issuance of any Certificate of Completion or Certificate of Occupancy, Developer shall provide an easement to the City for street, highway and public utility purposes over, under and upon Sycamore Street between 3rd Street and 4th Street. 5.13.2 Upon completion of the Parking Structure, City will enter into a Parking Operation Agreement with the Developer and Developer shall agree to manage and operate the Public Parking Structure. The Parking Operation Agreement shall (1) require that 211 parking spaces be available as Public Parking spaces; (2) require the Developer to pay all costs including the debt service on the financing for the Public Improvements; (4) maintain the Parking Structure consistent with the terms of Article 8; (4) set forth that the Developer shall be entitled to set the parking rates of the Parking Structure subject to the advance written approval by the City; (5) require that Monthly Parking Permits can only be issued with advance written approval by the City agreeing to the number of Monthly Permits that are authorized to be issued and the amount that will be charged per Monthly Parking Permit; (6) will agree that if any public parking spaces within the Public Parking Structure are utilized by the Mixed Use Project or the Hotel Project the parking rates for the Parking Structure will apply; and (7) shall provide for reciprocal access as necessary for the use of the Parking Structure by the Parties. Developer may manage the Parking Structure or Developer may enter into an agreement with a third party to manage the Parking Structure (hereinafter "Third Party Parking Agreement"). Any Third Party Parking Agreement shall contain indemnification and insurance for the benefit of the City and the Third Party Parking Agreement shall be approved in writing by the City prior to Developer executing the Third Party Parking Agreement. A copy of the Grant of Easements and Reciprocal Access, Parking Operation and Maintenance Agreement that will be executed by the Parties is attached hereto as Exhibit K 5.13.3 For years zero (0) to thirty (30), any income from the Parking Structure shall be distributed in the following order: (a) Payment of the Operator Fee as set forth in the Third Party Parking Agreement, if a one is executed by Developer in accordance with Section 5.13.2. 35 55 394.00049\3323920112 75A-246 (b) Operating Expenses of the Parking Structure. (c) City Debt Service. (d) Net revenue to Developer, provided the Hotel is operational. Should the Hotel be converted to residential, then net parking revenue shall be distributed forty percent (40%) of the net parking revenue to the City and sixty percent (60%) of the net parking revenue to the Developer. 5.13.4 Should the income from the Parking Structure be insufficient to service the debt which is estimated to be approximately $750,000 then Developer shall be responsible for paying the debt service. 5.13.5 After the debt service for the Public Improvements is paid in its entirety, any income from the Parking Structure shall be distributed in the following order: (a) Payment of the Operator Fee as set forth in the Third Party Parking Agreement, if a one is executed by Developer in accordance with Section 5.13.2. (b) Operating Expenses of the Parking Structure. (c) Net revenue shall be distributed forty percent (40%) of the net parking revenue to the City and sixty percent (60%) of the net parking revenue to the Developer. 5.13.6 All revenue and expenses deriving from the operation of the parking operations may be verified through an audit as requested by the City. (a) At any time, and following 48 hours prior written notice to Developer, the City or its designee may enter and inspect the physical accounting records pertaining to the Developer's or third party pursuant to the Third Party Parking Agreement. City or its designee may request any other information it deems necessary to monitory compliance with the requirements set forth in this Agreement. City shall be permitted to inspect and photocopy same, and to retain copies, outside of the Developer's premises, of any and all records with appropriate safeguards, if such retention is deemed necessary by the City in its reasonable discretion. This information shall be kept by the City in strictest confidence allowed by law. (b) All books, records, documents and any other evidence referenced in this Section 5.13.6 shall be maintained or made available in a single location in Santa Ana. (c) Once every fiscal year, City may request an audit to be performed by an independent audit firm selected by City, Developer shall be solely responsible for the expense of this audit. City may perform additional audits during the fiscal year, but any additional audit(s) shall be at the sole expense of the City. 5.14 Developer's Option to Purchase Parking Structure. 5.14.1 Upon issuance of the last Certificate of Completion for the Project, City hereby grants to Developer the option to purchase the City Parcel within the Parking Structure 36 55 394.00049\3323920112 75A-247 subject to a deed restriction that the Public Parking Parcel containing 211 public parking spaces shall remain public parking spaces available to members of the public in perpetuity pursuant to the Option to Purchase Agreement attached hereto as Exhibit "J". 5.14.2 The cost of the Parking Structure shall be as follows: (a) For the first fifteen years (15) from the issuance of the last Certificate of Completion for the Project, the Developer shall have the option to purchase the Public Parking Parcel within the Parking Structure for Fifteen Million Dollars ($15,000,000). (b) After fifteen (15) years from the issuance of the last Certificate of Completion for the Project until forty-five (45) years have elapsed, Developer shall have the option to purchase the Public Parking Parcel within the Parking Structure for the appraised value or Fifteen Million Dollars ($15,000,000) whichever is greater. ARTICLE 6 COVENANTS, CONDITIONS AND RESTRICTIONS (CC&R'S) 6.1 Developer and City shall enter into CC&R's for the Project and CC&R's shall be approved by the City Manager and the City Attorney shall approve as to form prior to recordation, and thereafter such CC&R's shall be recorded against the Property in the Orange County Recorder's office prior to the issuance of a Certificate of Occupancy for the Project or any portion thereof. 6.2 The CC&R's shall contain the following provisions: 6.2.1 Developer shall be solely responsible for any and all costs, expenses assessments, and taxes associated with the Association, including the formation of the Association, continual operation of the Association, the costs for drafting the CC&R's, and City costs to review the CC&R's or amendments including staff time and/or attorney fees. 6.2.2 Grant reciprocal easements for ingress/egress, passage of vehicles and pedestrians, over the parking lots and other common areas, and for maintenance purposes to allow access as reasonably necessary for the performance of maintenance of the Property. 6.2.3 Association shall maintain insurance for the benefit of the Association, City and Developer. 6.2.4 Developer and their successors and assigns shall be solely responsible for all costs and expenses incurred for operating and maintaining the Parking Structure including the Public Parking Parcel, and all common area, City shall not be liable for any costs or expenses for the operation or maintaining the Parking Structure, including the Public Parking Parcel or any common area. 6.2.5 Provisions of the Grant of Easements and Reciprocal Access, Parking Operation and Maintenance Agreement, dated October 5, 2020, for reference purposes (Parking Agreement), is attached hereto as Exhibit K, shall be incorporated into the terms of the CC&R's. 37 55 394.00049\3323920112 75A-248 Any future amendments of the Parking Agreement shall be incorporated into the CC&R's without further action of the Parties. 6.2.6 Shall grant the authority, but not the obligation, to the City to enforce, in its discretion, the provisions the CC&R's, and the Parking Agreement, and shall contain provisions that the Association shall reimburse the City for any and all costs associated with the enforcement. 6.2.7 City shall have no obligation to provide security or safety for the Property and shall not be liable for (i) any unauthorized or criminal entry by third parties into the Property, or any Unit in the Property or any Improvements within the Property, (ii) any damage or injury to Persons, or (iii) any loss of property in and about the Property, any Unit within the Property or any Improvements within the Property, by or from any unauthorized or criminal acts of third parties, regardless of any action, inaction, failure, breakdown, malfunction or insufficiency of security services and improvements provided by the Developer. 6.2.8 No Common Area on floors within the Parking Structure containing Public Parking Parcels be used for parking without the express written consent of the City, nor shall any Common Area necessary to access the Public Parking Area be used for parking without the express written consent of the City. 6.2.9 The CC&R's shall provide that the CC&R's shall not be amended or terminated without the prior written approval of the City Manager and approved as to form by the City Attorney. ARTICLE 7 CITY PARTICIPATION IN THE PROFITS UPON SALE OF PROPERTY BY DEVELOPER 7.1 Should Developer sell any portion of the Project, City shall participate in the profits subject to the terms of this ARTICLE 7. 7.1.1 City Participation Formula. If the net sale of any portion of the Project exceeds the Developer Costs, including reasonable unreimbursed hard and soft costs, over the period of time the Developer has owned the project, then the City shall share in the net profits pursuant to the following calculation: (a) City Costs shall equal City actual costs of City Funded Improvements plus the Parties have agreed that that City shall also receive a three million dollars ($3,000,000) additional allocation to be included in the City Costs which is in consideration that the City provided the land for the Project. ("City Costs"). (b) "Developer Costs" equals the reasonable unreimbursed hard and soft costs over the period of time Developer has owned the Project. ("Developer Costs") (c) Total Costs shall equal Developer Costs plus City Costs. ("Total Cost) 38 55 394.00049\3323920112 75A-249 (d) City shall receive a ratio of the of the Participation Amount which shall be calculated by dividing the Total Costs by the City Costs. ("City Ratio"). (e) Developer's profit shall be calculated by Developer Costs times fifteen percent (15%) equals "Developer's Profit". ("Developer's Profit") (f) Developer Costs plus Developer's Profit equals Developer Priority Payment ("Developer Priority Payment"). (g) The Participation Amount shall be calculated as Sales Price minus Developer Priority Payment = Participation Amount. ("Participation Amount") (h) City Share of the Participation Amount shall be calculated by multiplying the City Ratio by the Participation Amount = City's Share. (i) Developer shall receive the remaining share of the Participation Amount after City's Share is subtracted from the Participation Amount. ("Developer Share") 7.1.2 The following example is for illustrative purposes of the above formula. Example: Sale Price: $140 million Developer's costs $100 million City's Costs ($13m+3m [land]) $16 million Total costs $116 million City Share Ratio 16/116 = 13.7% Developer's profit @15% of costs $100m = $151n Sales Price: $140 million—(DEV priority payment $100m +$15m) $115m = Participation amount $25 million City's share = 13.7% of $25 million = $3.4 million Developer's share = 21.6 million Developer's total proceeds $100m + $15m+ 21.6m = $136.6m 7.1.3 If Developer sells either the Hotel Projector the Mixed Use Project (but not both at the same time) then City's Costs shall be proportionally allocated to the Hotel Project or the Mixed Use Project based upon the percentage of portion of the Project being sold. The percentage shall be calculated by dividing the Final Developer Accounting (See Section 5.2.5(d)) by the portion of the Project being sold (either the Mixed Use Project or Hotel Project). This Percentage shall then be applied in the calculation in 7.1.1 to determine the City's proportional Costs. (a) The following example is for illustrative purposes of the above formula as applied to a sale of only a portion of the project. For example, if Developer sold the Mixed Use Project: Mixed Use Project Accounting $75 million 39 55 394.00049\3323920112 75A-250 Hotel Accounting $25 million City's Total Costs (13m+3m) $16 million Total Costs $116 million Hotel Project/Final Developer Accounting = 25% 25% is applied to City's Costs (City's Proportional Costs) City's Proportional Costs for the Hotel is 4 Million (25% of 16 million) City Proportional Share Ratio (4/29) = 13.7% Sales price is 50 million Developer's Priority Payment (25 million +3,750,000) _ $28,750,000 50 million (Sales Price) - $28,750,000 (Developer's Priority Payment) _ $21,250,000 Participation Amount City's proportional Share 13.7% of $21,250,000 (Participation Amount) _ = City Proportional Share Ratio City's Share = $1,487,500 Developer's Share = $19,762,500 7.1.4 If Developer has exercised the option to purchase the City Parcel within the Parking Structure pursuant to Section 5.14 then that cost will be added to the Developer costs for purposes of calculating the City Participation Formula. ARTICLE 8 SPECIAL DEVELOPMENT COVENANTS OF THE DEVELOPER 8.1 Maintenance Condition of the Property. The Developer for itself, its successors and assigns, covenants and agrees that: 8.1.1 Maintenance Standard. The entirety of the Property and the Project shall be maintained by the Developer at Developer's cost in good condition and repair and in a neat, clean and orderly condition, ordinary wear and tear and casualty excepted, including, without limitation, maintenance, repair, reconstruction and replacement of any and all asphalt, concrete, landscaping, utility systems, irrigation systems, drainage facilities or systems, grading, subsidence, retaining walls or similar support structures, foundations, signage, ornamentation, and all other improvements on or to the Property, now existing or made in the fixture by or with the consent of the Developer, as necessary to maintain the appearance and character of the Project and the Property. The Developer's obligation to maintain the Project and the Property described in the immediately preceding sentence shall include, without limitation, (i) maintaining the surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally installed 40 55 394.00049\3323920112 75A-251 or such substitute as shall in all respects be equal in quality, use, and durability; (ii) removing all papers, mud, sand, debris, filth and refuse and thoroughly sweeping areas to the extent reasonably necessary to keep areas in a clean and orderly condition; (iii) removing or covering graffiti with the type of surface covering originally used on the affected area, (iv) placing, keeping in repair and replacing any necessary and appropriate directional signs, markers and lines; (v) operating, keeping in repair and replacing where necessary, such artificial lighting facilities as shall be reasonably required; (vi) providing security services as reasonably indicated; and (vii) maintaining, mowing, weeding, trimming and watering all landscaped areas and making such replacements of plants and other landscaping material as necessary to maintain the appearance and character of the landscaping, all at the sole cost and expense of the Developer. The Developer's obligation to maintain the Project and the Property described in the two immediately preceding sentences is, collectively, referred to in this Agreement as the "Maintenance Standard." The Developer may contract with a maintenance contractor to provide for performance of all or part of the duties and obligations of the Developer with respect to the maintenance of the Project and the Property; provided, however, that the Developer shall remain responsible and liable for the maintenance of the Project and the Property, at all times. 8.1.2 Maintenance Deficiency. If, at any time following the Close of Escrow, there is an occurrence of an adverse condition on any area of the Project or the Property in contravention of the Maintenance Standard (each such occurrence being a "Maintenance Deficiency"), then the City may Notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar days following the Developer's receipt of Notice of the Maintenance Deficiency, the City may conduct a public hearing, following transmittal of written Notice of the hearing to the Developer, at least, ten (10) days prior to the scheduled date of such public hearing, to verify whether a Maintenance Deficiency exists and whether the Developer has failed to comply with the provisions of this Section 8.1. If, upon the conclusion of the public hearing, the City finds that a Maintenance Deficiency exists and remains uncured, the City shall have the right to enter the Project and the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section 8.1 shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section 8.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of. (i) the rate often percent (10%) per annum or (ii) the Usury Limit, until paid in full. 8.1.3 Graffiti. Graffiti, as defined in Government Code Section 38772, that has been applied to the interior of the Parking Structure, or any exterior surface of a structure or improvement on the Property, that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been color -matched to the surface on which the paint is applied or removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within seventy-two (72) hours following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without Notice to the Developer. Any 41 55 394.00049\3323920112 75A-252 sum expended by the City for the removal of graffiti Property pursuant to this Section 8.1 shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the removal of graffiti pursuant to this Section 8.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate often percent (10%) per annum or (ii) the Usury Limit, until paid in full. 8.1.4 Lien Rights. The obligations of the Developer and its successors and assigns under this Section 8.1 shall be secured by a lien against the Property. The Developer hereby grants to the City a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property, in the manner provided in Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under this Section 8.1, including the reasonable attorneys' fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. The recordation of the City Deed and the Notice of Agreement shall provide record Notice of such security interest in favor of the City. 8.1.5 Covenant Running with the Land. The covenant of this Section 8.1 shall be a covenant running with the land of the Property, binding successive owners of the Property, throughout the Covenant Period, and shall be enforceable by the City. 8.2 Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor -in -interest to all or any portion of the Property, that there shall be no discrimination against or segregation of any Person, or group of Persons, on account of gender, sexual orientation, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, 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 purchasers, the Developers, lessees, sub - the Developers, sub -lessees or vendees of the Property. The covenant of this Section 8.2 shall be a covenant running with the land of the Property and binding on successive owners of all or any portion of the Property, until the City issues the last Certificate of Completion for the Project. 8.3 Form of Non-discrimination and Non -segregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor -in -interest to all or any portion of the Property, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of all or any portion of the Property on the basis of gender, sexual orientation, marital status, race, color, religion, creed, ancestry or national origin of any Person. All deeds, leases or contracts pertaining to the Property or any part thereof shall contain or be subject to substantially the following non- discrimination or non -segregation covenants: 8.3.1 In Deeds: "The grantee herein 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, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the 42 55 394.00049\3323920112 75A-253 grantee 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 the Developers, lessees, sub -the Developers, sub -lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." 8.3.2 In Leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, 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, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee 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 the Developers lessees, sub -lessee, sub -the Developers, or vendees in the premises herein leased." 8.3.3 In Contracts: "There shall be no discrimination against or segregation of any Person or group of persons on account of race, color, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment ofthe premises herein conveyed or leased, nor shall the transferee 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 the Developers, lessees, sub -lessees, sub -the Developers, or vendees of the premises herein transferred." The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 8.4 Survival and Enforcement of Special Development Covenants. 8.4.1 Covenants Running with the Land. Each of the special development covenants set forth in this ARTICLE 8 touch and concern the Property and constitute covenants running with the Property and binding upon successive owners of the Property for the time period set forth in each specific covenant. 8.4.2 Survival. Each such special development covenant shall survive the Close of Escrow, execution and recordation of the City Deed and issuance and recordation of each and every Certificate of Occupancy and any other document related to conveyance of the Property or construction or installation of the Project, for the time period specifically set forth in each such special development covenant. 8.4.3 Enforcement. These special development covenants may be enforced by the City regardless of whether the City currently owns or continues to own an interest in any property benefited by any such covenants. The Developer irrevocably stipulates and agrees that breach of any of the special development covenants set forth in this ARTICLE 8 will result in great and irreparable damage to the City, and will result in damages to the City that are either impracticable or extremely difficult to quantify. Accordingly, upon the breach of any special development covenant set forth in this ARTICLE 8, the City may institute an action for injunctive relief and/or for damages regarding such breach. 43 55 394.00049\3323920112 75A-254 ARTICLE 9 DEFAULTS, REMEDIES AND TERMINATION 9.1 Defaults 9.1.1 Events of Default. In addition to other acts or omissions of a Party that may legally or equitably constitute a Default or breach of this Agreement, the occurrence of any of the following specific events shall constitute an "Event of Default" under this Agreement: (a) Monetary Default. If a Monetary Default occurs and continues for seven (7) days after Notice from the City, specifying in reasonable detail the amount of money not paid and the nature and calculation of each such payment. (b) Bankruptcy or Insolvency. If the Developer ceases to do business as a going concern, ceases to pay its debts as they become due or admits in writing that it is unable to pay its debts as they become due, or becomes subject to any Bankruptcy Proceeding (except an involuntary Bankruptcy Proceeding dismissed within sixty (60) days after commencement), or a custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure is made with respect to, substantially all of the Developer's assets or the Developer's interest in this Agreement (unless such appointment, attachment, execution, or other seizure was involuntary and is contested with diligence and continuity and vacated and discharged within sixty (60) days). (c) Breach of Representation or Warranty. Any representation, warranty or disclosure made to the City by the Developer regarding this Agreement, the Property or the Project is materially false or misleading, whether or not such representation or disclosure appears in this Agreement. (d) Deposit of Funds, Bonds or Other Security. If the Developer fails to make any deposit of funds or provide any bond or other security required under this Agreement within seven (7) days' after Notice of such Default to the Developer. (e) Insurance. If the Developer fails to obtain, maintain or replace any insurance coverage required under this Agreement within seven (7) days' after Notice of such Default to the Developer. (f) Material Deviation in Project. Any material deviation in the work of construction or installation of the Project from the approved Project description, without the prior written approval of the City that is not corrected within fifteen (15) days' following written Notice of such Default. (g) Project Progress. (i) The construction or installation of the Project does not commence by the time provided for such commencement in the Performance Schedule. 44 55 394.00049\3323920112 75A-255 (ii) The construction or installation of the Project is delayed or suspended for a period in excess of that permitted under Section 5.4.3(d). (iii) The Project is not completed by the Project Completion Date. (h) Non -Monetary Default. If any Non -Monetary Default, other than those specifically addressed in Section 9.1, occurs and the Developer does not cure such Non - Monetary Default within thirty (30) days after Notice from the City describing the Default in reasonable detail, or, in the case of a Non -Monetary Default that cannot with reasonable due diligence be cured within thirty (30) days from such Notice, if the Developer shall not: (a) within thirty (30) days after the City's Notice, advise the City of the Developer's intention to take all reasonable steps to cure such Non -Monetary Default; (b) duly commence such cure within such period, and then diligently prosecute such cure to completion; and (c) complete such cure within a reasonable time under the circumstances. (i) Transfer. The occurrence of a Transfer other than a Permitted Transfer, whether voluntarily or involuntarily or by operation of Law, in violation of the terms and conditions of this Agreement. 9.2 PRE -CLOSING LIQUIDATED DAMAGES TO THE CITY. DURING THE CONTINUANCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE CITY MAY CANCEL THE ESCROW AND TERMINATE THIS AGREEMENT. UPON CANCELLATION OF THE ESCROW AND TERMINATION OF THIS AGREEMENT, THE CITY SHALL BE RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT TO SELL OR CONVEY THE PROPERTY TO THE DEVELOPER. ANY SUCH ESCROW CANCELLATION AND TERMINATION OF THIS AGREEMENT SHALL BE WITHOUT ANY LIABILITY OF THE CITY TO THE DEVELOPER OR ANY OTHER PERSON. THE CITY AND THE DEVELOPER ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE CITY, IN THE EVENT OF A CANCELLATION OF THE ESCROW AND TERMINATION OF THIS AGREEMENT DUE TO THE OCCURRENCE OF A DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT, PRIOR TO THE CLOSE OF ESCROW. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THAT THE CITY WOULD SUFFER, IN THE EVENT OF A CANCELLATION OF THE ESCROW AND TERMINATION OF THIS AGREEMENT DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE CITY AND THE DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF THE CITY'S DAMAGES IN SUCH EVENT IS THE PRE -CLOSING LIQUIDATED DAMAGES AMOUNT. THEREFORE, UPON THE CANCELLATION OF THE ESCROW AND TERMINATION OF THIS AGREEMENT BY THE CITY DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT, PRIOR TO THE CLOSE OF ESCROW, THE PARTIES AND THE ESCROW AGENT SHALL PROCEED PURSUANT TO SECTION 4.11 TO CANCEL THE ESCROW. THE ESCROW HOLDER SHALL IMMEDIATELY CANCEL THE ESCROW AND PAY THE PRE -CLOSING LIQUIDATED DAMAGES AMOUNT TO 45 55 394.00049\3323920112 75A-256 THE CITY, FROM FUNDS OF THE DEVELOPER HELD IN THE ESCROW UPON ESCROW CANCELLATION. RECEIPT OF THE PRE -CLOSING LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY'S SOLE AND EXCLUSIVE REMEDY UPON THE CANCELLATION OF THE ESCROW AND TERMINATION OF THIS AGREEMENT DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT, PRIOR TO THE CLOSE OF ESCROW. Initials of Authorized City Representative Initials 'or -Authorized Developer Representative 9.3 DEVELOPER'S WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES PRIOR TO CLOSE OF ESCROW. 9.3.1 THE DEVELOPER WAIVES ANY RIGHT TO MAINTAIN AN ACTION AGAINST THE CITY FOR SPECIFIC PERFORMANCE OF ANY TERM OR PROVISION OF THIS AGREEMENT, PRIOR TO THE CLOSE OF ESCROW. DURING THE CONTINUANCE OF AN EVENT OF DEFAULT BY THE CITY, PRIOR TO THE CLOSE OF ESCROW, THE DEVELOPER SHALL BE LIMITED TO RECOVERING ANY AMOUNTS ACTUALLY EXPENDED BY THE DEVELOPER IN REASONABLE RELIANCE ON THIS AGREEMENT, PRIOR TO THE DATE OF THE OCCURRENCE OF THE DEFAULT BY THE CITY, NOT TO EXCEED AN AGGREGATE AMOUNT OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00): THE DEVELOPER WAIVES ANY RIGHT TO RECOVER ANY OTHER SUMS FROM THE CITY ARISING FROM A DEFAULT BY THE CITY, PRIOR TO THE CLOSE OF ESCROW. THE DEVELOPER ACKNOWLEDGES. THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 9.3, WHICH CIVIL CODE SECTION READS AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 9.3.2 BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RE S OF THIS SECTION 9.3. Init1 f Xu6ihorized Developer Representative 9.4 Legal Actions. Following the Close of Escrow, 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 available to that Party under this Agreement, at law or in equity regarding any 46 55394.00049\33239203.12 75A-257 Default. Any such legal action must be instituted in the Superior Court of the State of California in and for the County, in any other appropriate court within the County, or in the United States District Court with jurisdiction in the County. 9.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 9.6 Indemnification. 9.6.1 Obligations. The City shall Indemnify the Developer Parties and the Developer shall Indemnify the City Parties against any wrongful intentional act or negligence of the Indemnitor. The Developer shall also Indemnify the City Parties against any and all of the following: (a) any Application made at the Developer's request; (b) any Due Diligence Investigations by the Developer; (c) use, occupancy, management or operation of the Project; (d) any agreements that the Developer (or anyone claiming through the Developer) makes regarding the Project; (e) the condition of the Project or, or of any vaults, tunnels, passageways or space under, adjoining or appurtenant to the Property; and (f) any accident, injury or damage whatsoever caused to any Person in or on the Property or the Project. Notwithstanding anything to the contrary in this Agreement, no Indemnitor shall be required to Indemnify any Indemnitee to the extent of the Indemnitee's wrongful intentional acts or negligence. 9.6.2 Limitation on Liability of the City. Following the Close of Escrow, the Developer is and shall be responsible for operation of the Property and the Project and the City shall not be liable for any injury or damage to any property (of the Developer or any other Person) or to any Person occurring on or about the Property or the Project, except to the extent caused by the City's wrongful intentional act or negligence. 9.6.3 Strict Liability. The indemnification obligations of an Indemnitor shall apply regardless of whether liability without fault or strict liability is imposed or sought to be imposed on one or more Indemnitees. 9.6.4 Independent of Insurance Obligations. The Developer's indemnification obligations under this Agreement shall not be construed or interpreted as in any way restricting, limiting, or modifying the Developer's insurance or other obligations under this Agreement and is independent of the Developer's insurance and other obligations under this Agreement. The Developer's compliance with its insurance obligations and other obligations under this Agreement shall not in any way restrict, limit, or modify the Developer's indemnification obligations under this Agreement and are independent of the Developer's indemnification and other obligations under this Agreement. 9.6.5 Survival of Indemnification and Defense Obligations. The indemnity and defense obligations under this Agreement shall survive the expiration or earlier termination of this Agreement, until all claims against any of the Indemnitees involving any of the indemnified matters are fully, finally, absolutely and completely barred by applicable statutes of limitations. 47 55 394.00049\3323920112 75A-258 9.6.6 Independent Duty to Defend. The duty to defend under this Agreement is separate and independent of the duty to Indemnify. The duty to defend includes claims for which an Indemnitee may be liable without fault or strictly liable. The duty to defend applies immediately upon notice of a Claim, regardless of whether the issues of negligence, liability, fault, default or other obligation on the part of the Indemnitor or the Indemnitee have been determined. The duty to defend applies immediately, regardless of whether the Indemnitee has paid any amounts or incurred any detriment arising out of or relating (directly or indirectly) to any claims. It is the express intention of the Parties that an Indemnitee be entitled to obtain summary adjudication or summary judgment regarding an hndemnitor's duty to defend the Indemnitee, at any stage of any claim or suit, within the scope of the hndemnitor's indemnity obligations under this Agreement. 9.7 Indemnification Procedures. Wherever this Agreement requires any Indemnitor to Indemnify any Indemnitee: 9.7.1 Prompt Notice. The hndemnitee shall promptly Notify the hndemnitor of any claim. To the extent, and only to the extent, that the Indemnitee fails to give prompt Notice of a Claim and such failure materially prejudices the Indemnitor in providing indemnity for such claim, the Indemnitor shall be relieved of its indemnity obligations for such claim. 9.7.2 Selection of Counsel. The Indemnitor shall select counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor's insurance carrier that is providing coverage for a claim shall be deemed reasonably satisfactory. Even though the Indemnitor shall defend the action, Indemnitee may, at its option and its own expense, engage separate counsel to advise it regarding the claim and its defense. The Indemnitee's separate counsel may attend all proceedings and meetings. The Indemnitor's counsel shall actively consult with the Indemnitee's separate counsel. The Indemnitor and its counsel shall, however, fully control the defense, except to the extent that the hndemnitee waives its rights to indemnity and defense for such claim. 9.7.3 Cooperation. The Indemnitee shall reasonably cooperate with the Indemnitor's defense of the Indemnitee, provided the Indemnitor reimburses the Indemnitee's actual out of pocket expenses (including Legal Costs) of such cooperation. 9.7.4 Settlement. The Indemnitor may, with the Indemnitee's consent, not to be unreasonably withheld, settle a claim. The Indemnitee's consent shall not be required for any settlement by which all of the following occur: (a) the Indemnitor procures (by payment, settlement, or otherwise) a release of the Indemnitee from the subject claim(s) by which the Indemnitee need not make any payment to the claimant; (b) neither the Indemnitee nor the Indemnitor on behalf of the Indemnitee admits liability; (c) the continued effectiveness of this Agreement is not jeopardized in any way; and (d) the Indemnitee's interest in the Project is not jeopardized in any way. 9.7.5 Insurance Proceeds. The Indemnitor's obligations shall be reduced by net insurance proceeds the Indemnitee actually receives for the matter giving rise to indemnification obligation. 48 55 394.00049\3323920112 75A-259 ARTICLE 10 GENERAL PROVISIONS 10.1 Incorporation of Recitals. The Recitals set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 10.2 Restrictions on Change in Management or Control of the Developer, Assignment and Transfer. 10.2.1 Restrictions. The Developer acknowledges that the qualifications and identity of the Developer are of particular importance and concern to the City. The Developer further recognizes and acknowledges that the City has relied and is relying on the specific qualifications and identity of the Developer in entering into this Agreement with the Developer and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. The Developer represents to the City that it has not made and agrees that it will not create or suffer to be made or created, any Transfer, other than a Permitted Encumbrance either voluntarily, involuntarily or by operation of law, without the prior written approval of the City, which may be given, withheld or conditioned in the City's sole and absolute discretion until after the issuance of a Certificate of Project Completion for the Project. Any Transfer made in contravention of this Section 10.2 shall be voidable at the election of the City. The Developer agrees that the restrictions on Transfers set forth in this Section 10.2 are reasonable. City acknowledges and agrees that at any time following the issuance of the last Certificate of Completion for the Project, Developer may Transfer the Property and/or refinance the Property without City approval or complying with Section 10.2.2 below, provided that all covenants set forth in Article 5 of this Agreement, entitled "Special Development Covenants of Developer" shall survive any such Transfer or refinancing and remain in full force and effect for the duration of the Covenant Period. 10.2.2 Delivery of Transfer Documents. All instruments and other legal documents proposed to effect any proposed Transfer shall be submitted to the City for review, at least, thirty-five (35) calendar days prior to the proposed date of the Transfer, and the written approval, disapproval or conditions of the City shall be provided to the Developer, within thirty (30) calendar days following the City's receipt of the Developer's request. 10.3 Legal Challenges. The Developer acknowledges that the City is a "public entity" and/or a "public agency" as defined under applicable California law. Therefore, the City must satisfy the requirements of certain California statutes relating to the actions of public entities, including, without limitation, CEQA. Also, as a public entity, the City's action in approving this Agreement may be subject to proceedings to challenge or invalidate this Agreement or mandamus. The Developer assumes the risk of delays and damages that may result to the Developer from any third -party legal actions related to the City's approval of this Agreement or pursuit of the activities contemplated by this Agreement, even in the event that an error, omission or abuse of discretion by the City is determined to have occurred. If a third -party files a legal action regarding the City's approval of this Agreement or the pursuit of the activities contemplated by this Agreement, the City may terminate this Agreement on thirty (30) days advance written Notice to the Developer of the City's intent to terminate this Agreement, referencing this Section 10.3, without any further obligation to perform the terms of this Agreement and without any liability to the Developer or 49 55 394.00049\3323920112 75A-260 any other Person resulting from such termination, unless the Developer unconditionally agrees in writing to indemnify and defend the City, with legal counsel acceptable to the City, against such third -party legal action, within thirty (30) calendar days following the date of the City's Notice of intent to terminate this Agreement, including without limitation paying all Legal Costs, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action. Any such written defense and indemnity agreement between the City and the Developer must be in a separate writing and reasonably acceptable to the City in both form and substance. Nothing contained in this Section 10.3 shall be deemed or construed to be an express or implied admission that the City may be liable to the Developer or any other Person for damages or other relief alleged regarding any alleged or established failure of the City to comply with any Law. If the City and the Developer have not entered into a written defense and indemnity agreement, pursuant to this Section 10.3, within thirty (30) calendar days following the date of the City's notice of intent to terminate this Agreement, then this Agreement shall terminate, without further Notice or action by either Party, on the fortieth (40a) day following the date of the City's notice of intent to terminate this Agreement. 10.4 City Manager Implementation. The City shall implement this Agreement through its City Manager. The City Manager is hereby authorized by the City to issue approvals, interpretations, waivers and enter into certain amendments to this Agreement on behalf of the City, to the extent that any such action(s) does/do not materially or substantially change the Project or cause the City to incur any obligation exceeding Twenty -Five Thousand Dollars ($25,000). All other actions shall require the consideration and approval of the City governing body. Nothing in this Section 10.4 shall restrict the submission to the City governing body of any matter within the City Manager's authority under this Section 10.4, in the City Manager's sole and absolute discretion, to obtain the City governing body's express and specific authorization on such matter. The specific intent of this Section 10.4 is to authorize certain actions on behalf of the City by the City Manager, but not to require that such actions be taken by the City Manager, without further consideration by the City governing body. 10.5 Notices, Demands and Communications Between the Parties. 10.5.1 Notices. Any and all Notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the principal office of the City or the Developer, as applicable, set forth in Section 10.5.2, by one or more of the following methods: (i) messenger for immediate Personal delivery, (ii) a nationally recognized overnight (one-night) delivery service (i.e., Federal Express, United Parcel Service, etc.) or (iii) registered or certified United States Mail, postage prepaid, return receipt requested. Such Notices may be sent in the same manner to such other addresses as either Party may designate from time to time, by Notice. Any Notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after it is deposited with the United States Postal Service for delivery, as provided in this Section 10.5.1. Rejection, other refusal to accept or the inability to deliver a Notice because of a changed address of which 50 55 394.00049\3323920112 75A-261 no Notice was given or other action by a Person to whom Notice is sent, shall be deemed receipt of the Notice. 10.5.2 Addresses. The following are the authorized addresses for the submission of Notices to the Parties, as of the Effective Date: To the Developer: Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 To the City: City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Attention: City Clerk With courtesy copy to City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Attention: City Attorney 10.6 Warranty Against Payment of Consideration for Agreement. The Developer represents and warrants that: (i) the Developer has not employed or retained any Person to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of the Developer and (ii) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given by the Developer or any of its agents, employees or representatives to any elected or appointed official or employee of the City in an attempt to secure this Agreement or favorable terms or conditions for this Agreement. Breach of the representations or warranties of this Section 10.6 shall automatically terminate this Agreement, without further notice to or action by either Party and the Developer shall immediately refund any payments made to the Developer by the City pursuant to this Agreement, prior to the date of any such termination. 10.7 Relationship of Parties. The Parties each understand and agree that the City and the Developer are independent contracting entities and do not intend by this Agreement to create any partnership, j oint venture, or similar business arrangement, relationship or association between them. 10.8 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or 51 55 394.00049\3323920112 75A-262 following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non -appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 10.9 Conflict of Interest. No member, officer, official or employee of the City having any conflict of interest, direct or indirect, related to this Agreement, the Property or the development or operation of the Project shall participate in any decision relating to this Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. 10.10 Non -liability of Officials, Employees and Agents. No City Party shall be personally liable to the Developer, or any successor in interest of the Developer, in the event of any Default or breach by the City under this Agreement or for any amount that may become due to the Developer or to its successor, or on any obligations under the terms or conditions of this Agreement, except as may arise from the negligence or willful intentional acts of such City Party. 10.11 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. Any reference to business days in this Agreement shall mean and refer to consecutive business days of the City. 10.12 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Parry has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and `including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." 10.13 Governing Law. The Laws of the State shall govern the interpretation and enforcement of this Agreement, without application of conflicts of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City. 10.14 City Attorney Fees and Costs. For the purposes of this Agreement, all references to reasonable attorneys' fees and costs in reference to the City are intended to include the salaries, benefits and costs of the City Attorney, as City General Counsel, and the lawyers employed in the 52 55 394.00049\3323920112 75A-263 Office of the City Attorney who provide legal services regarding the particular matter, pro -rated to an hourly rate, in addition to any fees and costs of outside counsel to the City. 10.15 Unavoidable Delay; Extension of Time of Performance. 10.15.1Notice:- Subject to -my -specific provisions of this Agreement stating that they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an Unavoidable Delay, performance by either Party under this Agreement shall not be deemed, or considered to be in Default, where any such Default is due to the occurrence of an Unavoidable Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within ten (10) days after such Party knows of any such Unavoidable Delay; and (b) within five (5) days after such Unavoidable Delay ceases to exist. To be effective, any Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The extension of time for an Unavoidable Delay shall commence on the date of receipt of written Notice of the occurrence of the Unavoidable Delay by the Party not claiming an extension of time to perform due to such Unavoidable Delay and shall continue until the end of the condition causing the Unavoidable Delay. The Party claiming an extension of time to perform due to an Unavoidable Delay shall exercise its commercially reasonable best efforts to cure the condition causing the Unavoidable Delay, within a reasonable time. 10.15.2ASSUMPTION OF ECONOMIC RISKS. EACH PARTY EXPRESSLY AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY THE PERFORMANCE OF EACH AND EVERY ONE OF EACH PARTY'S OBLIGATIONS AND COVENANTS ARISING UNDER THIS AGREEMENT. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND/OR MARKET DEMAND/CONDITIONS AND WAIVE, TO THE GREATEST LEGAL EXTENT, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREE THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE EFFECTIVE DATE. Initials of Authorized Initials of Authorized 53 5 5394.00049\33 239203.12 75A-264 Representative(s) of City Representative(s) of Developer 10.16 Real Estate Commissions. The City shall not be responsible for any real estate brokerage or sales commissions, finder fees or similar charges that may arise from or be related to this Agreement. The Developer shall be solely responsible for any real estate brokerage or sales commissions, finder fees or similar charges that may arise from or be related to this Agreement that are claimed by any Person engaged by the Developer relating to the Property, the Project or this Agreement. Further, the Developer shall Indemnify the City from any such claims for real estate brokerage or sales commissions, finder fees or similar charges, in accordance with Section 9.7. 10.17 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 10.18 No Other Representations or Warranties. Except as expressly set forth in this Agreement, no Party makes any representation or warranty material to this Agreement to any other Party. 10.19 Tax Consequences. Developer acknowledges this Agreement and agrees that it shall bear any and all responsibility, liability, costs, and expenses connected in any way with any tax consequences experienced by the Developer related to this Agreement or the Close of Escrow. 10.20 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third -Person to any Party or give any third -Person any right of subrogation or action over or against any Party. 10.21 Execution in Counterparts. This Agreement may be executed in two or more counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. 10.22 Entire Agreement. 10.22. 1 Integrated Agreement. This Agreement includes 56 pages and 11 exhibits, which constitute the entire understanding and Agreement of the Parties regarding the Premises, conveyance of the Property and the other subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Premises, conveyance of the Property and the other subjects addressed in this Agreement. 10.22.2No Merger. None of the terms, covenants, restrictions, agreements or conditions set forth in this Agreement shall be deemed to be merged with any deed conveying title to any portion of the Premises, any lease or sublease of any part of the Premises and this Agreement shall continue in full force and effect before and after any such instruments. 54 55 394.00049\3323920112 75A-265 10.22.3Waivers Must be in Writing. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of both the City and the Developer. 10.23 Exhibits. The exhibits attached to this Agreement are described as follows: Exhibit A: Property Legal Description Exhibit B: Performance Schedule Exhibit C: Form of City Deed Exhibit D: Form of Notice of Agreement Exhibit E: Form of Official Action of Developer Exhibit F: Scope of Development/Site Plans Exhibit G. Map of Project Site Exhibit H. Community Workforce Agreement (2017) Exhibit I. Hotel Operating Agreement Exhibit J. Option to Purchase Agreement Exhibit K. Grant of Easements and Reciprocal Access, Parking Operation and Maintenance Agreement 10.24 Execution of this Agreement. Following execution of three (3) counterpart originals of this Agreement and the Developer Official Action by the authorized representative(s) of the Developer and prompt delivery of such executed documents to the City this Agreement shall be subject to review and approval by the City governing body, in its sole and absolute discretion, no later than forty-five (45) calendar days after the date of such delivery to the City. If the City governing body has not approved this Agreement within the time period specified in the immediately preceding sentence, then no provision of this Agreement shall be of any force or effect for any purpose and any prior execution or approval of this Agreement by either Party shall be null and void. 10.25 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. 10.26 No Waiver. Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, or condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. [Signatures on following page] 55 55 394.00049\3323920112 75A-266 SIGNATURE PAGE TO 2020 DISPOSITION AND DEVELOPMENT AGREEMENT (CARIBOU INDUSTRIES, INC.) IN WITNESS WHEREOF, the City and the Developer have executedthis 202QDispo�ion and Development Agreement (Caribou Industries, Inc.) by and through the signatures of their duly authorized representative(s) set forth below: CITY OF SANTA ANA: to Its: Attest: By: City Clerk By: Q)�� for City ome DEVELOPER: CARIBOU INDUSTRIES, INC. By: Name: L-- Its: By: Name: 56 55394.00049\33239203.12 75A-267 EXHIBIT "A" TO DISPOSITION AND DEVELOPMENT AGREEMENT PROPERTY LEGAL DESCRIPTION All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82-17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of Official Records of Orange County, California, bounded Southerly by the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and L.J. Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. Exhibit "A" Property Legal Description 55394.00049\33239203.12 75A-268 EXHIBIT `B" TO DISPOSITION AND DEVELOPMENT AGREEMENT PERFORMANCE SCHEDULE A. Days shall be calendar days, unless otherwise specified. B. The City Manager is authorized by the City to make minor changes to the schedule prior to the Project Completion Date resulting in an aggregate extension of the Project Completion Date of ninety (90) calendar days or less. C. All specific dates set forth in parentheses in this schedule are estimates only and not binding on the Parties. D. In the event of any conflict between this schedule and the Agreement, the terms and provisions of the Agreement shall control. E. All defined terms indicated by initial capitalization used in this schedule shall have the meanings ascribed to the same terms in the Agreement. L GENERAL PROVISIONS FUNCTION TIME OF PERFORMANCE 1. Execution of Disposition and Within fourteen (14) days after the approval of Development Agreement by the the Agreement by City Council following City. The City shall execute this receipt by City of two copies executed by Agreement, and if approved, shall Developer. deliver two (2) executed copies thereof to the Developer 2. Property Investigation. The City Within 30 days after execution of this shall transmit to Developer all Agreement. information in the City's possession with respect the environmental and physical condition of property. 3. Letter of Interest from Hotel Within 120 days after execution of this Operator or provide City with an Agreement, Developer will obtain either a Alternative Management Plan letter of interest from a recognized hotel operator or provide the City with an Alternative Management Plan. 4. Submission of Basic Concept Completed. Drawings. Developer submits Basic Concept Drawings to City. 5. City Approval or Disapproval of Completed. Basic Concept Drawings. City shall Exhibit `B" Performance Schedule 55394.00049\33239203.12 75A-269 review the Basic Concept Drawings and approve or disapprove same 6. Submission of Design Development Completed. Drawings for the Project. The Developer shall prepare and submit to the City, complete Design Development Drawings 7. Review of Design Development Completed. Drawings and Approval or Disapproval Thereof. The Planning and Building Agency shall consider and approve or disapprove the Design Development Drawings. 8. Submission of Application for Site Completed. Plan Review of the Project. The Developer shall prepare and submit to the City a complete Application for site plan review. 9. Review of Project Application and Completed. Approval or Disapproval Thereof. The Planning Commission shall consider and approve or disapprove the Application. 10. Review of Project Application and Will be completed concurrently with Approval or Disapproval Thereof. entitlement and DDA approval by City The City Council shall consider and Council. approve or disapprove the Application IL CONSTRUCTION DRAWINGS AND GRADING PLANS 11. Submission of Complete Within 8 month after City Council approval of Construction Drawings and Project, Developer will submit complete Grading Plans. Developer shall construction drawings and grading plans. submit to the Planning and Building Agency complete Construction Drawings and Grading Plans. 12. Approval of Complete Within 3 months after submittal of complete Construction Drawings. The construction drawings and grading plans, the Exhibit `B" Performance Schedule 55394.00049\33239203.12 75A-270 Planning and Building Agency shall approve or disapprove the revisions submitted by the Developer, and Developer shall be ready to obtain building permits, provided that the revisions necessary to accommodate the Planning and Building Agency's comments have been made. Planning and Building Agency will use best reasonable efforts to approve or disapprove any final revisions. III. FINANCING AND HOTEL COMMITMENT 13. Proof of Financing Commitments. Developer shall submit Proof of Financing Commitments for all of the Developer Improvements to City. Within 90 days of approval of construction drawings. 14. Proof of Hotel Operator Within 90 days of approval of construction Commitment. drawings. Developer shall submit proof of hotel operator commitment to City or shall provide proof of sufficient financing to implement the Alternative Management Plan 15. Financing for Public Improvements. Within 90 days of receipt of Developer proof City shall provide Proof of financing of financing. commitments for Public Improvements V.CONVEYANCE 16. Opening of Escrow. The City shall Within 60 days of receipt of Developer proof open an Escrow with an Escrow of financing. Agent. 17. Conditions Precedent. Developer and Within 90 days of opening of escrow. City satisfy all of their respective pre - closing conditions. 18. Demolition Schedule. Developer and Prior to close of escrow. City shall agree on an acceptable demolition schedule based upon Contractors' schedule 19. Close of Escrow for the Within 90 days from all conditions being Conveyances. City conveys the Site satisfied by both parties. subject to the Grant Deed in Exhibit C Exhibit `B" Performance Schedule 55394.00049\33239203.12 75A-271 VI. CONSTRUCTION 15. Issuance of Demolition and Grading Within 90 days of closing of escrow. Permit and Issuance of Building Permits for all of the Developer Improvements. Developer shall obtain building permits from the Planning and Building Agency for all of the Developer Improvements. 16. Commencement of Construction. Within 60 days from completion of demolition Developer shall commence grading and grading and site preparation. of the Site and construction of the Developer Improvements. 17. Completion of Construction. On or before 24 months from start of Developer shall complete construction. construction of all of the Developer Improvements. 18. Opening Date. A Conforming Hotel A conforming hotel shall open for business to shall open for business the Public within ninety (90) days after the completion of construction. Exhibit `B" Performance Schedule 55394.00049\33239203.12 75A-272 EXHIBIT "C" TO DISPOSITION AND DEVELOPMENT AGREEMENT FORM OF CITY DEED [Attached behind this cover page] Exhibit "C lrgAct fl AT THE REQUEST OF AND WHEN RECORDED NIAIL TO: City of Santa Ana 20 Civic Center Plaza (M-) P.O. Box 1988 Attention: City Clerk No recording fee required, this document is exempt from fee pursuant to Section 6103 of the California Government Code SPACE ABOVE THIS LINE FOR RECORDER'S USE CITY DEED (WITH REVESTMENT PROVISIONS, COVENANTS, RESTRICTIONS AND RESERVATIONS) For a valuable consideration, receipt of which is hereby acknowledged The City of Santa Ana, a California charter city in the County of Orange of the State of California ("Grantor" or "City"), hereby grants to Caribou Industries, Inc., a Nevada Corporation ("Grantee" or "Developer"), that certain real property described in Exhibit "A" attached hereto and incorporated herein by this reference ("Property"). 1. The Property is conveyed in accordance with and subject to that certain Disposition and Development Agreement ("DDA") dated , for reference purposes only, entered into between Grantor and Grantee, a copy of which is on file with the City at its offices as a Public Record and which is incorporated herein by reference. The DDA requires the Developer to construct and meet other requirements as set forth therein. All terms used herein shall have the same meaning as those used in the DDA. 2. The Grantee acknowledges and agrees that the Property is quitclaimed by the City to the Grantee in its "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS CONDITION," as of the date of recordation of this City Deed, with no warranties, expressed or implied, as to the environmental or other physical condition of the Property, the presence or absence of any patent or latent environmental or other physical condition on or in the Property, or any other matters affecting the Property. 3. As provided in the Disposition and Development Agreement, Grantee shall promptly commence and complete development of the Property in accordance with plans and specifications approved by Grantor. Construction of improvements and development of the Property (the 'Improvements") required by the Disposition and Development Exbibit "C" 1rgActM Agreement shall commence and be prosecuted diligently to completion at the time specified in, and subject to the terms of, the Disposition and Development Agreement. 3.1. Grantee shall maintain the Improvements and any other improvements on the Property in good condition and order, shall keep the Property free from accumulation of debris and waste materials and shall permit no action or inaction on the Property such that the Property detracts from the surrounding neighborhood in any substantial manner. 3.2. All obligations imposed upon Grantee herein shall bind any and all successors of Grantee; provided, however, that upon sale or conveyance of the Project, the party selling or conveying shall be relieved of any such obligation to the extent that such obligation arises after the date of sale or conveyance. 4. Grantee covenants and agrees that prior to recordation of the last Certificate of Completion for the Property: 4.1. The Grantor shall have the additional right, at its option, to re-enter and take possession of the Property and all improvements on the Property and to terminate and revest the Property in the Grantor if the Grantee or its successors in interest shall, in accordance with and subject to the terms of the Disposition and Development Agreement: 4.1.1. Fail to commence or complete the construction of the Project and/or Improvements when required by the Disposition and Development Agreement and after sixty days written notice from the Grantor of Grantee's failure to timely commence or complete construction, provided that the Grantee shall not have obtained an extension or postponement to which Grantee may be entitled or that Grantee or Grantee's lender for the project have commenced and are diligently proceeding to cure such default; or 4.1.2. Abandon or substantially suspend construction of the Project and/or Improvements for a time period in excess of forty-five (45) calendar days, either consecutively or in the aggregate, other than as a result of an Unavoidable Delay. Grantor shall provide sixty days written notice to continue such construction, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled or that Grantee or Grantee's lender for the project have commenced and are diligently proceeding to cure such default; or 4.1.3. Transfer, or suffer any involuntary transfer, of all or any part of, or interest in, the Property, in violation of the Disposition and Development Agreement or this Grant Deed. 4.2. The right to re-enter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid, or limit: 4.2.1. Any mortgage or deed of trust permitted by the Disposition and Development Agreement or this Deed and duly approved by the Grantor; or Exhibit "C" �Mctfd 4.2.2. Any rights or interests provided for the protection of the holders of such mortgages or deed of trust. 4.3. The right to re-enter, repossess, terminate and revest with respect to the Property shall terminate when the last Certificate of Completion for the Project has been recorded by the Grantor. 4.4. In the event title to all or any part of the Property is revested in the Grantor as provided in this Section 4, the Grantor shall, pursuant to its responsibilities under California Law, use its best efforts to resell the Property or part as soon and in such manner as the Grantor shall find feasible to a qualified and responsible party or parties (as determined by the Grantor) who will assume the obligation of making or completing the Project and Improvements or such other improvements in their stead as shall be satisfactory to the Grantor and in accordance with the uses specified for such Property. Upon such resale of the Property the proceeds thereof shall be applied as follows: 4.4.1. First, the Grantor shall be reimbursed, on its own behalf or on behalf of the City of Santa Ana, California for all costs and expenses incurred by the Grantor, including but not limited to salaries of personnel incurred in connection with the recapture, management and resale of the Property or part (but less any income derived by the Grantor from the Property in connection with such management); all taxes, assessments, and water and sewer charges with respect to the Property or part (or, in the event the Property is exempt from taxation, assessment or such charges during the period of Grantor's ownership thereof, an amount equal to such taxes, assessments or charges as determined by the assessing official as would have been payable if the Property were not exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Property or part at the time of revesting of title in the Grantor or to discharge or prevent such encumbrances or liens from attaching or being made by any subsequent successors or transferees; any expenditures made or obligations incurred with respect to the completion of the Improvements; and any amounts otherwise owed to the Grantor by the Grantee and its successors or transferee; and 4.4.2. Second, to the extent possible, the Grantee shall be reimbursed in an amount not to exceed the sum of (1) the Purchase Price paid to the Grantor by the Grantee for the Property (or allocable to the part thereof); (2) the costs incurred for the development of the Property and for the improvements existing on the Property at the time of the reentry and repossession, (3) less any gains or income withdrawn or made by the Grantee from the Property or the Improvements; and 4.4.3. Third, any balance remaining after such reimbursements shall be retained by the Grantor. 4.4.4. To the extent that this right of reverter involves a forfeiture, it must be strictly interpreted against the Grantor, the party for whose benefit it is created. This right of reverter shall, however, be interpreted in light of the fact that the Grantor is by this deed conveying the Property to the Grantee for development and not for speculation in Exhibit "C" �Mct fd undeveloped land and that such development is a material element of the consideration received by Grantor for the Property. 5. Maintenance Condition of the Property. The Developer for itself, its successors and assigns, covenants and agrees that: 5.1. Maintenance Standard. The entirety of the Property and the Project shall be maintained by the Developer in good condition and repair and in a neat, clean and orderly condition, ordinary wear and tear and casualty excepted, including, without limitation, maintenance, repair, reconstruction and replacement of any and all asphalt, concrete, landscaping, utility systems, irrigation systems, drainage facilities or systems, grading, subsidence, retaining walls or similar support structures, foundations, signage, ornamentation, and all other improvements on or to the Property, now existing or made in the future by or with the consent of the Developer, as necessary to maintain the appearance and character of the Project and the Property. The Developer's obligation to maintain the Project and the Property described in the immediately preceding sentence shall include, without limitation, (i) maintaining the surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality, use, and durability; (ii) removing all papers, mud, sand, debris, filth and refuse and thoroughly sweeping areas to the extent reasonably necessary to keep areas in a clean and orderly condition; (iii) removing or covering graffiti with the type of surface covering originally used on the affected area, (iv) placing, keeping in repair and replacing any necessary and appropriate directional signs, markers and lines; (v) operating, keeping in repair and replacing where necessary, such artificial lighting facilities as shall be reasonably required; (vi) providing security services as reasonably indicated; and (vii) maintaining, mowing, weeding, trimming and watering all landscaped areas and making such replacements of plants and other landscaping material as necessary to maintain the appearance and character of the landscaping, all at the sole cost and expense of the Developer. The Developer's obligation to maintain the Project and the Property described in the two immediately preceding sentences is, collectively, referred to in this Agreement as the "Maintenance Standard." The Developer may contract with a maintenance contractor to provide for performance of all or part of the duties and obligations of the Developer with respect to the maintenance of the Project and the Property; provided, however, that the Developer shall remain responsible and liable for the maintenance of the Project and the Property, at all times. 5.2. Maintenance Deficiency. If, at any time following the Close of Escrow, there is an occurrence of an adverse condition on any area of the Project or the Property in contravention of the Maintenance Standard (each such occurrence being a "Maintenance Deficiency"), then the City may Notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar days following the Developer's receipt of Notice of the Maintenance Deficiency, the City may conduct a public hearing, following transmittal of written Notice of the hearing to the Developer, at least, ten (10) days prior to the scheduled date of such public hearing, to verify whether a Maintenance Deficiency exists and whether the Developer has failed to comply with the provisions of this Section. If, upon the conclusion of the public hearing, the City finds that a Maintenance Deficiency Exhibit "C" AA exists and remains uncured, the City shall have the right to enter the Project and the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum or (ii) the Usury Limit, until paid in full. 5.3. Graffiti. Graffiti, as defined in Government Code Section 38772, that has been applied to the interior of the Parking Structure, or to any exterior surface of a structure or improvement on the Property, that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been color -matched to the surface on which the paint is applied or removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within seventy-two (72) hours following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without Notice to the Developer. Any sum expended by the City for the removal of graffiti Property pursuant to this Section shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the removal of graffiti pursuant to this Section that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum or (ii) the Usury Limit, until paid in full. 6. Lien Rights. The obligations of the Developer and its successors and assigns under this Section shall be secured by a lien against the Property. The Developer hereby grants to the City a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property, in the manner provided in Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under this Section including the reasonable attorneys' fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. The recordation of the City Deed and the Notice of Agreement shall provide record Notice of such security interest in favor of the City. 7. Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor -in -interest to all or any portion of the Property, that there shall be no discrimination against or segregation of any Person, or group of Persons, on account of gender, sexual orientation, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, 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, Exhibit "C" �Uctfd number, use or occupancy of purchasers, the Developers, lessees, sub -the Developers, sub -lessees or vendees of the Property. The covenant of this Section shall be a covenant running with the land of the Property and binding on successive owners of all or any portion of the Property, until the City issues the last Certificate of Completion for the Project. 7.1. Form of Non-discrimination and Non -segregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor -in - interest to all or any portion of the Property, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of all or any portion of the Property on the basis of gender, sexual orientation, marital status, race, color, religion, creed, ancestry or national origin of any Person. All deeds, leases or contracts pertaining to the Property or any part thereof shall contain or be subject to substantially the following non-discrimination or non - segregation covenants: 7.1.1. In Deeds: "The grantee herein 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, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee 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 the Developers, lessees, sub -the Developers, sub -lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." 7.1.2. In Leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, 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, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee 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 the Developers lessees, sub -lessee, sub -the Developers, or vendees in the premises herein leased." 7.1.3. In Contracts: "There shall be no discrimination against or segregation of any Person or group of persons on account of race, color, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee 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 the Developers, lessees, sub- lessees, sub -the Developers, or vendees of the premises herein transferred." The Exhibit "C 1r9ACt fd foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 8. All covenants contained in this Deed shall be covenants running with the land and equitable servitudes thereon. The covenants contained in Section 4 of this Deed shall terminate upon issuance of the last Certificate of Completion for the Project. The covenants contained in this City Deed shall remain in effect in perpetuity unless specified otherwise; provided, however, that if the state law requiring such covenants changes such that such covenants are not required to remain in effect in perpetuity, such covenants shall terminate at such earlier date as may be permitted by state law. 9. The covenants in this City Deed shall be binding for the benefit of Grantor, the City of Santa Ana and, if applicable, any successor in interest to said parties. Such covenants shall run in favor of the Grantor and such aforementioned parties for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. The right to exercise all of the right and remedies, and to maintain any actions at law or suits in equity or contained and this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and such aforementioned parties. 10. The covenants contained in this City Deed shall be deemed to be covenants running with the land and shall bind and benefit future purchasers, encumbrances and transferee. EXECUTED ON , 2020 in , California. Dated ATTEST: By: City Clerk APPROVED AS TO FORM: CITY: THE CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California By: Name: Its: Exhibit " C" �Mc-28Deal 0 City Attorney [NOTE: All signatures must be notarized] ExMbit "C rW-N-1- EXHIBIT "A" TO CITY DEED Exhibit "C rW-N2- RECORDING REOU111EO SY 82-3616j9 +no .vew N wKoso;e uuL Tnrw R;ee ANe. uNLess W rEC OWN 640W. YAI� T+; DTATCY[NT6 TO: rClerk of the Council +ow,... City of Santa Ana 2u Civic Center Plaza L Santa Ana, CA 92701 T@1e(4drr So. a REOWDW IN omc� RECORDS EXEMPT C1 9 oBAM M714-82 IW Le 4 arm* Slow, al war �— SPACE ABOVE THIS LINE FOR REOCIRDER'S USE 1 The underai-ned drrlarr_, that the dorumcnWrc Iran:irr tat i.cExemot ❑ '�'-+ rompu[ed on ;he full valor of the imcnsl rr ertr ronvr.'ed. - _ ...,... "- — ...... ........... and i• omputcrl on thr m " cater h . [hr valor �d lien.�,nr rnrumLmnm remoiuia� thrrrou m thr I me of .air. Thr land. mumrnr• or rea41 6 L�nv! is t ❑ unin roq., rand arra � cE[c „f Santa Ana .. .. ... ... .. ....and FOR A VALUABLE CONSIDERATION, receipt of +.hirh i, hrrcLy a�kuu.leA;;rd. The Co-�nunity Redeveioonent Agency of the City o body, corporate and oolSanta Ana, a public itic xxawpw�facef�fsalaadmfaf mr mx>,xsff>a hrrnc, CRA\TCI to The City of Santa Ana, a municinal cxgrxat ion. ;h,foll.... in: d,+rrihrd real pn,ura.'in ;h� City of Santa Ana Coun;v of Urange ..tmo of l:aGiomia: A11 that .-er tai real �roperr situata, .n tae Sta tr: Of Cali=�rr.z�, of Orange, City of >anta Ana, describe, in Ex::.b1t " and incot wrated hare.... t , att.Lred ::Ere co .:is re:erenCE. The CGmItuait_ Itedevelonment Agency of the City of Santa Ana, a Dub. is >y, corporate and politic. ATTEST: EXECUTI'JE UidcCTO$/ R GIRDING 5cCRETA:cY CHAT �ti.i\ FOR NOTARY SEAL OR S7=m %UL T\\ IT ITY.It:CI, Ire 1'ila'1 •ll�.e\ p\' IVi11�M 1". 11\F: 11'\II I'vm so glo%0. ,mVI.\FPntx.. 1'CI1 V,Mt to nL) nee 75A-283 RECORDING REQUESTED BY 82-361609 �N 'wN,tN qtG; ` tp Nw,l`T* 9 OCtO w YMIMp OTN6w s OwN Ow, N k STwTCN6NTp Tp; NN.w, Clerk of the Council , -OROW IN 2MCVUL IE ovo. .ow.ttw City of Santa Ana EXEMPT C.— , 2u Civic center Plaza C1 9 LOAM Santa Ana, CA 92701 OCT 14'92 Title OrdL Su. SPACE ABOVE THIS LINE POP RECCROER'S USE The Nd ed tf l tdm the f. i"I' mm� tea Nrkr mp ,. Shxempt ❑ .ompmni on tl,c full .aloe of the imcmo or prvlRrty Ton,ared. or i. 'od I. ................. ❑ romputcvl oe the toll cal Yr Ic. the raI., of lien, or a cumbrance, remaining thr«on m the time of ;ale The fund, rnemarte or emit.,' i, located in ❑ unBrmriromed area (if in, of .....Santa Arta .... ., ..__.. ..... . .. and FOR ,A %ALCABLE CONSIDERATION. remipt of ..hich G hereby ar@noo lalged, The Community Redevelopment Agency of the C1ty of Santa Ana, a ?ubl is Dody, corporate anc politic t � �LigtM�tdtllatllKl6Yl64Y111tOtY1t01k1h2 7 herehy6fiA?T.S, to The City of Santa Ana, a mcniclpal corporation t w a the foile.,ine de-rihcd «al pngR-:.to BYCity of Santa Ana 71 Co.", of Orange � . .mtr of (;alifomia: All that C2r td In real property Sl tuatec in OL Jthe' $LOGE O? CdLi°JrR-d, i;OCnt "1 rdnyC, C1Lv Of jdntd Ana, described in cF!:1blt " 'J ••. �.+rNH'atmd heGc1R py L;;15 r�+E ^ , at -a". d aeCCCV a ec�nce. "I.115 ig f�. r•! f 4R• A. iJ�—JCl'yU`J deed or p-R•• dn•..d• t" ln�crest In real Crop. a.+nev. -c b. 'a A•,a, o poi: cical eonF rN g .on p` �a•ad� hnLf o. th. c ¢ov. rns••n!N. ^_3 ty C;>vn••t. rgvnn• to Rrrna Offic.r m open•. on b Sc. 5a_15A of th^ L'i •y Coupe i authorl ty rn^.•^rr•,rnd by (Cant^e con s.n's t•r t_ Adeptrd on oct,>.r L p'iQq retor•tq•Sor th.r. 10.:,0• and V., of by Nv.horizrd a• _ .. 1ty MNn RC+r STATE OF CALIFORNIA) COUNTY OF ORANGE ) SS pe mod_ tF,,gi before me, a Notary Public in and for ::aid State, persona y appeare ----- -- t ('erd 3 @ and t e xecutl ve rector an A,.n r0 me to ,man and Redevelo ecor ng ecretar t e a•''— pment Agency of the Cityof Santa Ana,,�Cali foorntiaely' of the Community corporate and Politic, of public body, the State of California, and known to me tc be the Persons who executed the within instrument on behalf of said agency, and acknowledged to me that they executed the same. WITNESS my hand and official seal. mn> Signature OFFICIAL T C e NGIL�AEAL N GREEN uBPC' tAUF.RNIA a f Al. GreP ou;cE am typ o� r pri�"nted� wr mAme t�;,p, �.6c� Civil Code Sec, 1191 EXHIBIT "D" TO DISPOSITION AND DEVELOPMENT AGREEMENT FORM OF NOTICE OF AGREEMENT [Attached behind this cover page] Exhibit "D" Form Of Notice Of Agreement 55394.00049\33239203.12 75A-285 RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Attention: City Clerk (Space Above Line For Use By Recorder) [Recordation of this Document Is Exempt From Fees Payable to the Recorder Under Government Section Code 27383] CITY OF SANTA ANA Notice of Agreement TO ALL INTERESTED PERSONS PLEASE TAKE NOTICE that as of, 2020, Caribou Industries, Inc., a Nevada Corporation (the "Developer") and the City of Santa Ana, a California charter city in the County of Orange of the State of California (the "City"), entered into an agreement entitled "Disposition and Development Agreement" (the "Agreement"). A copy of the Agreement is on file with the City Clerk and is available for inspection and copying by interested persons as a public record of the City during the regular business hours of the City. The Agreement affects the real property (the "Property") described in Exhibit "A" attached to this Notice of Agreement. The meaning of defined terms used in this Notice of Agreement shall be the same as set forth in the Agreement. PLEASE TAKE FURTHER NOTICE that the Agreement contains certain community development covenants running with the land of the Site and other agreements between the Developer and the City affecting the Site, including, without limitation, (all section references are to the Agreement): 7.1 Maintenance Condition of the Property. The Developer for itself, its successors and assigns, covenants and agrees that: 7.1.1 Maintenance Standard. The entirety of the Property and the Project shall be maintained by the Developer in good condition and repair and in a neat, clean and orderly condition, ordinary wear and tear and casualty excepted, including, without limitation, maintenance, repair, reconstruction and replacement of any and all asphalt, concrete, landscaping, utility systems, irrigation systems, drainage facilities or systems, grading, subsidence, retaining walls or similar support structures, foundations, signage, ornamentation, and all other Exhibit "D" Form Of Notice Of Agreement 55 394.00049\3323920112 75A-286 improvements on or to the Property, now existing or made in the fixture by or with the consent of the Developer, as necessary to maintain the appearance and character of the Project and the Property. The Developer's obligation to maintain the Project and the Property described in the immediately preceding sentence shall include, without limitation, (i) maintaining the surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality, use, and durability; (ii) removing all papers, mud, sand, debris, filth and refixse and thoroughly sweeping areas to the extent reasonably necessary to keep areas in a clean and orderly condition; (iii) removing or covering graffiti with the type of surface covering originally used on the affected area, (iv) placing, keeping in repair and replacing any necessary and appropriate directional signs, markers and lines; (v) operating, keeping in repair and replacing where necessary, such artificial lighting facilities as shall be reasonably required; (vi) providing security services as reasonably indicated; and (vii) maintaining, mowing, weeding, trimming and watering all landscaped areas and making such replacements of plants and other landscaping material as necessary to maintain the appearance and character of the landscaping, all at the sole cost and expense of the Developer. The Developer's obligation to maintain the Project and the Property described in the two immediately preceding sentences is, collectively, referred to in this Agreement as the "Maintenance Standard." The Developer may contract with a maintenance contractor to provide for performance of all or part of the duties and obligations of the Developer with respect to the maintenance of the Project and the Property; provided, however, that the Developer shall remain responsible and liable for the maintenance of the Project and the Property, at all times. 7.1.2 Maintenance Deficiency. If, at any time following the Close of Escrow, there is an occurrence of an adverse condition on any area of the Project or the Property in contravention of the Maintenance Standard (each such occurrence being a "Maintenance Deficiency"), then the City may Notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar days following the Developer's receipt of Notice of the Maintenance Deficiency, the City may conduct a public hearing, following transmittal of written Notice of the hearing to the Developer, at least, ten (10) days prior to the scheduled date of such public hearing, to verify whether a Maintenance Deficiency exists and whether the Developer has failed to comply with the provisions of this Section 7.1. If, upon the conclusion of the public hearing, the City finds that a Maintenance Deficiency exists and remains uncured, the City shall have the right to enter the Project and the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section 7.1 shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section 7.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of. (i) the rate of ten percent (10%) per annum or (ii) the Usury Limit, until paid in full. 7.1.3 Graffiti. Graffiti, as defined in Government Code Section 38772, that has been applied to the interior of the Parking Structure, or to any exterior surface of a structure or improvement on the Property, that is visible from any public right-of-way adjacent or contiguous Exhibit "D" Form Of Notice Of Agreement 55 394.00049\3323920112 75A-287 to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been color -matched to the surface on which the paint is applied or removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within seventy-two (72) hours following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without Notice to the Developer. Any sum expended by the City for the removal of graffiti Property pursuant to this Section 7.1 shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the removal of graffiti pursuant to this Section 7.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate often percent (10%) per annum or (ii) the Usury Limit, until paid in full. 7.1.4 Lien Rights. The obligations of the Developer and its successors and assigns under this Section 8.1 shall be secured by a lien against the Property. The Developer hereby grants to the City a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property, in the manner provided in Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under this Section 7.1, including the reasonable attorneys' fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. The recordation of the City Deed and the Notice of Agreement shall provide record Notice of such security interest in favor of the City. 7.1.5 Covenant Running with the Land. The covenant of this Section 8.1 shall be a covenant running with the land of the Property, binding successive owners of the Property, throughout the Covenant Period, and shall be enforceable by the City. 7.2 Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor -in -interest to all or any portion of the Property, that there shall be no discrimination against or segregation of any Person, or group of Persons, on account of gender, sexual orientation, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, 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 purchasers, the Developers, lessees, sub - the Developers, sub -lessees or vendees of the Property. The covenant of this Section 7.2 shall be a covenant running with the land of the Property and binding on successive owners of all or any portion of the Property, until the City issues the last Certificate of Completion for the Project. 7.3 Form of Non-discrimination and Non -segregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor -in -interest to all or any portion of the Property, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of all or any portion of the Property on the basis of gender, sexual orientation, marital status, race, color, religion, creed, ancestry or national origin of any Person. All deeds, leases or contracts pertaining to the Property or any part thereof shall contain or be subject to substantially the following non- discrimination or non -segregation covenants: Exhibit "D" Form Of Notice Of Agreement 55 394.00049\3323920112 75A-288 7.3.1 In Deeds: "The grantee herein 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, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee 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 the Developers, lessees, sub -the Developers, sub -lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." 7.3.2 In Leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, 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, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee 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 the Developers lessees, sub -lessee, sub -the Developers, or vendees in the premises herein leased." 7.3.3 In Contracts: "There shall be no discrimination against or segregation of any Person or group of persons on account of race, color, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment ofthe premises herein conveyed or leased, nor shall the transferee 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 the Developers, lessees, sub -lessees, sub -the Developers, or vendees of the premises herein transferred." The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. THIS NOTICE OF AGREEMENT is dated as of 2020, and has been executed on behalf of the parties to the Agreement on the date indicated next to the signatures of their authorized officers. This Notice of Agreement may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument. CITY CITY OF SANTA ANA City Manager Exhibit "D" Form Of Notice Of Agreement 55 394.00049\3323920112 75A-289 ATTEST: City Clerk I_\ u u:Z6]V a 17_F.YI tell 1101INS a City Attorney DEVELOPER CARIBOU INDUSTRIES, INC. Its [ALL SIGNATURES MUST BE NOTARIZED] Exhibit "D" Form Of Notice Of Agreement 55 394.00049\3323920112 75A-290 EXHIBIT"A" TO NOTICE OF AGREEMENT Property LeEal Description [Attached behind this cover page] Exhibit "D" Form Of Notice Of Agreement 55 394.00049\3323920112 75A-291 EXHIBIT "A" TO NOTICE OF AGREEMENT PROPERTY LEGAL DESCRIPTION All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82-17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of Official Records of Orange County, California, bounded Southerly by the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and L.J. Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. Exhibit "D" Form Of Notice Of Agreement 55394.00049\33239203.12 75A-292 EXHIBIT "E" TO DISPOSITION AND DEVELOPMENT AGREEMENT FORM OF OFFICIAL ACTION OF DEVELOPER [Attached behind this cover page] Exhibit "E" Form Of Official Action Of Developer 55394.00049\33239203.12 75A-293 CERTIFICATION OF CORPORATION AUTHORITY Caribou Industries, Inc., a Nevada Corporation (the "Corporation"), does certify that any one (1) of the following named persons: i/. are, authorized and empowered for and on behalf of and in the name of the Corporation to execute and deliver that certain DISPOSITION AND DEVELOPMENT AGREEMENT, dated for reference purposes only (the "Agreement"), to purchase certain property, gener ly, located at 201 West Third Street California, to perform the other obligations of the Corporation set forth in the Agreement and all other documents to be executed in connection with the transactions contemplated in the Agreement, and to take all actions that may be considered necessary to conclude the transactions contemplated in the Agreement. The authority conferred shall be considered retroactively, and any and all acts authorized in this document that were performed before the execution of this certificate are approved and ratified. The authority conferred shall continue in full force and effect until the City shall have received notice in writing from the Corporation of the revocation of this certificate. We further certify that the activities covered by the foregoing certifications constitute duly authorized activities of the Corporation; that these certifications are now in full force and effect; and that there is no provision in any document under which the Corporation is organized and/or that governs the Corporation's continued existence limiting the power of the undersigned to make the certifications set forth in this certificate, and that the same are in conformity with the provisions of all such documents. Corporation: Name: Title: Name: Exlribit "E" Form Of Official Action Of Developer 55394.00049\33239203.12 75A-294 EXHIBIT "F-1" AND EXHIBIT "F-2" TO DISPOSITION AND DEVELOPMENT AGREEMENT Scope of Development/Site Plans �i11�Lp �!�,. ��, ❑ dlh© .IRE I10—ell Iiffi III-_II II III=1I, p�p, �II e� [TI �i �'►'�„I�II�,� I� � I ■ _ � II -II II�.II II�II III�II II pal II�II������II��I � ������ ������ ������ :�Z. h I ll��ll�ll r♦ Scope of Development 171 Residential Units 75 Room Hotel 13,419 Commercial Space 46 Parking spaces 444 Parking Spaces Exhibit "F" Scope of Development/Site Plan 55394.00049A33239203.12 75A-295 EXHIBIT "G" TO DISPOSITION AND DEVELOPMENT AGREEMENT Map of Proiect Site THIS HAP WAS PREPARED FOR 094N-E LOONfY ASSESSOR 0£11. Pom''S OIL,. iAE ASE50N mAKES NO ouARAhTlE AS 10 ITS ACCUFAC( N01 ASSOIAES MY L145H I rr FOR OINEH USES. R9r r0 OF HCP,400UC10. ALL RIGHTS PLL''SDI ® LOPM(GHI ORA@Gf COy'O' ASSESSOP LOa6 25 M. 55394.00049A33239203.12 201 West 3rd Street, Santa Ana CA 92701 APN: 3 98-264-13 25 § FOURTH auu xw I uln' ea• TOWN OF I STREET e a avr u• qs n $ 7 + IR 0 r¢ 9% a + O O 5 6 O + 5 I ua . I v 5 — 14 a. BLK. 12 R i Q 264 i &K. if I .O s Sla ____'r 2 1 's YHd4D Exhibit "G" Map of Project Site 75A-296 STREET "a EXHIBIT "H" TO DISPOSITION AND DEVELOPMENT AGREEMENT COMMUNITY WORKFORCE AGREEMENT (2017) Exhibit "H" (Community Workforce Agreement (2017)) 55 394.00049\3323920112 75A-297 INSURANCE NOT REQUIRED A-2017-189 WORK MAY PROCEED CLERK OF CO INCIL naTF: SEP 01 201 t 6� d' C AO tz) y,omkk (arvA(t%D COMMUNITY WORKFORCE AGREEMENT BY AND BETWEEN THE CITY OF SANTA ANA LOS ANGELESJORANGE COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL AND THE SIGNATORY CRAFT COUNCILS AND UNIONS 75A-298 TABLE OF CONTENTS Page ARTICLE l DEFINITIONS 3 ARTICLE 2 SCOPE OF THE AGREEMENT 5 ARTICLE 3 UNION RECOGNITION AND EMPLOYMENT 8 ARTICLE 4 UNION ACCESS AND STEWARDS 12 ARTICLE 5 WAGES AND BENEFITS 13 ARTICLE 6 HOURS OF WORK, OVERTIME, SHIFTS AND HOLIDAYS 14 ARTICLE 7 WORK STOPPAGES AND LOCKOUTS 16 ARTICLE 8 WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES 20 ARTICLE 9 MANAGEMENT RIGHTS 21 ARTICLE 10 SETTLEMENT OF GRIEVANCES AND DISPUTES 23 ARTICLE 11 REGULATORY COMPLIANCE 25 ARTICLE 12 SAFETY AND PROTECTION OF PERSON AND PROPERTY 25 ARTICLE 13 TRAVEL AND SUBSISTENCE 26 ARTICLE 14 APPRENTICES 26 ARTICLE 15 WORKING CONDITIONS 27 ARTICLE 16 PRE -JOB CONFERENCES 28 ARTICLE 17 LABOR/MANAGEMENT COOPERATION 28 ARTICLE 18 SAVINGS AND SEPARABILITY 29 ARTICLE 19 WAIVER 29 ARTICLE 20 AMENDMENTS 29 ARTICLE 21 DURATION OF THE AGREEMENT 30 ATTACHMENT A — LETTER OF ASSENT 33 ATTACHMENT B — ZIP CODES 34 ATTACHMENT C — CRAFT REQUEST FORM 39 ATTACHMENT D — LIST OF NEUTRAL ARBITRATORS 41 ATTACHMENT E— SUBSTANCE ABUSE POLICY 42 Final Draft Community Workforce Agreement 6.22.17 2 City of Santa Ana 75A-299 CITY OF SANTA ANA COMMUNITY WORKFORCE AGREEMENT This Community Workforce Agreement ("Agreement") is entered into effective as of 2017, by and between the City of Santa Ana, a municipal corporation ("City"), the Los Angeles/Orange Counties Building and Construction Trades Council ("Trades Council"), and the signatory Craft Councils and Local Unions signing this Agreement (collectively, the "Union" or "Unions"). This Agreement establishes the labor relations policies and procedures for the City, the Contractors awarded contracts for Project Work and for the crafts persons employed by the Contractors and represented by the Unions engaged in the Project Work as more fully described below. The City, Trades Council and Unions are hereinafter referred to herein, as the context may require, as "Party" or "Parties." It is understood by the Parties to this Agreement that for the duration of this Agreement, it shall be the policy of the City for all Project Work (as defined in Section 2.2.) to be contracted exclusively to Contractors who agree to execute and be bound by the terms of this Agreement, directly or through the Letter of Assent (a form of which is attached as "Attachment A"), and to require each of its subcontractors, of whatever tier, to become so bound. The City shall include, directly or by incorporation by reference, the requirements of this Agreement in the advertisement of and/or specifications for each and every contract for Project Work to be awarded by the City. It is further understood that the City shall actively administer and enforce the obligations of this Agreement to ensure that the benefits envisioned from it flow to all Parties, the Contractors and crafts persons working under it, and the residents of the City. The City shall therefore designate a "CWA Administrator," either from its own staff or an independent contractor, to serve as the City's liaison for Contractors and other persons; monitor compliance with this Agreement; assist, as the authorized representative of the City, in developing and implementing the programs referenced herein, all of which are critical to fulfilling the intent and purposes of the Parties and this Agreement; and to otherwise implement and administer this Agreement. ARTICLE 1 DEFINITIONS Section 1.1 "Agreement" or "CWA" means this Community Workforce Agreement. Section 1.2 "Apprentice" means those employees indentured and participating in a Joint Labor/Management Apprenticeship Program approved by the State of California, Department of Industrial Relations, Division of Apprenticeship Standards. Section 1.3 "Construction Contract" or "Construction Contracts" means any contract entered into by the City, for the construction of Project Work as specified in Section 2.2. Section 1.4 "Contractor" means any individual firm, partnership or corporation, or combination thereof, including joint ventures, which is an independent business enterprise and which has entered into a Construction Contract with the City or any of its contractors or any of Final Draft Community Workforce Agreement 6.22.17 3 City of Santa Ana 75A-300 the City's or contractor's subcontractors of any tier, with respect to the construction of any part of a Project under contract terms and conditions approved by the City and which incorporate this Agreement. Section 1.5 "City" means the City of Santa Ana. Section 1.6 "Joint Labor/Management Apprenticeship Program" means a joint Union and Contractor administered apprenticeship program certified by the State of California, Department of Industrial Relations, Division of Apprenticeship Standards. Section 1.7 "Letter of Assent" means the document that each Contractor (of any tier) must sign and submit to the City before beginning any Project Work, which formally binds such Contractor(s) to adherence to all the forms, requirements and conditions of this Agreement in the form attached hereto as "Attachment A." Section 1.8 "CWA Administrator" means the City's authorized representative who will be the liaison between the City, Contractors, and the Unions; responds to inquiries about the CWA; charged with monitoring compliance with the CWA, developing and implementing programs set forth in the CWA including but not limited to grievance procedures. Section 1.9 "Project", "Project Work" or "City Project" means the demolition and construction work to be performed on City property or within easements secured by the City consisting of the construction of public works, pursuant to a Construction Contract entered into by the City Section 1.10 "Specialty Contracts" means a contract for Project Work with a specialty contractor which is either limited to a particular single trade or craft or limited to a singular scope of work (i.e. installing a toilet.) Section 1.l l "Master Labor Agreements" means the local collective bargaining agreements of the signatory Unions having jurisdiction over the Project Work and which have signed this Agreement. Section 1.12 "Subscription Agreement" means the contract between a Contractor and a Union's Labor/Management Trust Fund(s) that allows the Contractor to make the appropriate fringe benefit contributions in accordance with the terms of the Master Labor Agreements. Section 1.13 The use of masculine or feminine gender or titles in this Agreement should be construed as including both genders and not as gender limitations unless the Agreement clearly requires a different construction. Further, the use of Article titles and/or Section headings are for information only, and carry no legal significance. Final Draft Community Workforce Agreement 6,22.17 4 City of Santa Ana 75A-301 ARTICLE 2 SCOPE OF THE AGREEMENT Section 2.1 General This Agreement shall apply to all of the City's Project Work, as defined in Section 1.9, performed by those Contractor(s) of whatever tier that have contracts awarded for such work, for the development of the City's facilities which, jointly, constitute the Project, and have been designated by the City for construction or rehabilitation. Section 2.2 Specific Project Work covered by this Agreement is defined and limited to: 2.2.1 All construction and major rehabilitation work pursuant to "prime multi -trade construction_ contracts" that exceed two hundred and fifty thousand dollars ($250,000) and all subcontracts flowing from these prime multi -trade contracts; and 2.2.2 All prime "Specialty Contracts," as defined in Section 1.10 that exceed one hundred thousand ($100,000) and all subcontracts flowing from these specialty contracts; and 2.2.3 The City may, at any time and at its sole discretion, determine to build additional buildings, facilities, and other projects under this Agreement which are not otherwise covered as Project Work. 2.2.4 This Agreement is not intended to, and shall not apply to any work performed at any time prior to the effective date, or after the expiration or termination of this Agreement, except as otherwise provided herein. This Agreement shall in no way limit the City's right to terminate, modify or rescind any construction contract and/or any related subcontract or agreement. Should the City remove or terminate any contract or agreement for construction that does not fall within the scope of this Agreement and thereafter authorize that work be commenced on any contract for such construction, the contract for construction shall be performed under the terms of this Agreement. Section 2.3 Bundling of Contracts 2.3.1 The City, in its sole discretion, may seek to group (or "bundle") for bidding, contracts not meeting the threshold of Section 2.2 above. (Small contracts for like types of work, scheduled to be undertaken at the same facility or on the same project site, and within the same timeframe, will be considered for such bundling, consistent with economies of scale, and the purposes of this Agreement); and 2.3.2 Project Work will not be intentionally split, divided or otherwise separated for contract award purposes to avoid application of this Agreement. Section 2.4 Applicability This Agreement shall not apply to any work of any Contractor other than that on Project Work specifically covered by this Agreement. Section 2.5 Exclusions Items specifically excluded from the scope of this Agreement include the following: Final Draft Community Worldorce Agreement 6.22.17 5 City of Santa Ana 75A-302 2.5.1 Work of non -manual employees, including but not limited to: superintendents; teachers; supervisors (except those covered by Master Labor Agreements above the level of general foreman); staff engineers; time keepers; mail carriers; clerks; office workers; messengers; guards; safety personnel; emergency medical and first aid technicians; and other professional, engineering, executive, administrative, supervisory and management employees; 2.5.2 Equipment and machinery owned or controlled and operated by the City; 2.5.3 All off -site manufacture and handling of materials, equipment or machinery; provided, however, that lay down or storage areas for equipment or material and manufacturing (prefabrication) sites, dedicated solely to the Project, and the movement of materials or goods between such locations and a Project site are within the scope of this Agreement; 2.5.4 All work performed by City employees, the CWA Administrator, design teams (including, but not limited to architects engineers and master planners), or any other consultants for the City (including, but not limited to, project managers and construction managers and their employees where not engaged in Project Work) and their sub -consultants, and other employees of professional service organizations, not performing manual labor within the scope of this Agreement; provided, however, that it is understood and agreed that Building/Construction Inspector and Field Soils and Materials Testers (Inspectors) are a covered craft under the Agreement. This inclusion applies to the scope of work defined in the State of California Wage Determination for said Craft. This shall also specifically include such work where it is referred to by utilization of such terms as "quality control' or "quality assurance." Every Inspector performing under the wage classification of 'Building/Construction Inspector and Field Soils and Material Testers under a professional services agreement or a construction contract shall be bound to all applicable requirements of the PLA. Covered Work as defined by this Agreement shall be performed pursuant to the terms and conditions of this Agreement regardless of the manner in which the work was awarded; 2.5.5 Any work performed near, or leading to a site of work covered by this Agreement and undertaken by state, county or other governmental bodies, or their Contractors; or by public utilities, or their Contractors; and/or by adjacent third party landowners; and/or by the City or its Contractors (for work which is not within the scope of this Agreement); 2.5.6 Off -site maintenance of leased equipment and on -site supervision of such work; 2.5.7 Work by employees of a manufacturer or vendor supervising the work of Craft employees under this Agreement, necessary to maintain such manufacturer's or vendor's warranties or guaranty; 2.5.8 Non -construction support services contracted by the City, City consultants, the CWA Administrator, or Contractor in connection with a Project; 2.5.9 Laboratory work for testing. Final Draft Community Workforce Agreement 6,22.17 6 City of Santa Ana 75A-303 2.5.10 Coverage Exception This Agreement shall not apply if the City receives funding or assistance from any Federal, State, local or other public entity for the Construction Contract if a requirement, condition or other term of receiving that funding or assistance, at the time of the awarding of the contract, is that the City not require, bidders, contractors, or other persons or entities to enter into an agreement with one or more labor organizations. The City agrees that it will make every effort to establish the enforcement of this Agreement with any governmental agency or granting authority. Section 2.6 Awarding of Contracts for Project Work 2.6.1 The City and/or the Contractors, as appropriate, have the absolute right to award contracts or subcontracts on Project Work to any Contractor notwithstanding the existence or non-existence of any agreements between such Contractor and any Union parties, provided only that such Contractor is ready, willing, and able to execute and comply with this Agreement should such Contractor be awarded work covered by this Agreement. 2.6.2 It is agreed that all Contractors of whatever tier, who have been awarded Project Work contracts, shall be required to accept and be bound to the terms and conditions of this Agreement, and shall evidence their acceptance by the execution of the Letter of Assent set forth in "Attachment A" hereto, prior to the commencement of any Project Work. At the time that any Contractor enters into a subcontract with any subcontractor of any tier providing for the performance of the construction contract, the Contractor shall provide a copy of this Agreement to said subcontractor and shall require the subcontractor, as a part of accepting the award of a construction subcontract, to agree in writing in the form of a Letter of Assent to be bound by each and every provision of this Agreement prior to the commencement of work on the Project. No Contractor or subcontractor shall commence Project Work without having first provided a copy of the Letter of Assent as executed by it to the CWA Administrator and to the Trades Council before the commencement of Project Work. Section 2.7 Master Labor Agreements 2.7.1 The provisions of this Agreement, including the Master Labor Agreements as such may be changed from time -to -time and which also are incorporated herein by reference, shall apply to Project Work. This Agreement is not intended to supersede such Master Labor Agreements between any of the Employers performing construction work on the Project and a Union signatory thereto except to the extent the provisions of this Agreement are inconsistent with such Master Labor Agreements, in which event the provisions of this Agreement shall apply. However, such does not apply to work performed under the National Cooling Tower Agreement, the National Stack Agreement, the National Transit Division Agreement (NTD), work within the jurisdiction of the International Union of Elevator Constructors, and all instrument calibration and loop checking work performed under the terms of the UA/1BE W Joint National Agreement for Instrument and Control Systems Technicians except that Article 9 dealing with Strikes, Work Stoppages and Lock -Outs, Work Assignments and Jurisdictional Disputes, and Settlement of Grievances and Disputes shall apply to such work. Where a subject is covered by the provisions of a Master Labor Agreement and not in conflict with the provisions of this Agreement, the provisions of the Master Labor Agreement shall apply. It is specifically Final Draft Community Workforce Agreement 6.22.17 7 City of Santa Ana 75A-304 agreed that no later agreement shall be deemed to have precedence over this Agreement unless signed by all parties signatory hereto who are then currently employed or represented at the Project. Any dispute as to the applicable source between this Agreement and any Master Labor Agreements for determining the wages, hours of working conditions of employees on this Project shall be resolved under the procedures established in Article 10. 2.7.2 It is understood that this Agreement, together with the referenced Master Labor Agreements, constitutes a self-contained, stand-alone agreement and by virtue of having become bound to this Agreement, the Contractor will not be obligated to sign any other local, area or national collective bargaining agreement as a condition of performing work within the scope of this Agreement (provided, however, that the Contractor may be required to sign a uniformly applied, non-discriminatory Subscription Agreement at the request of the trustees or administrator of a bust fund established pursuant to Section 302 of the Labor Management Relations Act, and to which such Contractor is bound to make contributions under this Agreement, provided that such Subscription Agreement does not purport to bind the Contractor beyond the terms and conditions of this Agreement and/or expand its obligation to make contributions pursuant thereto). It shall be the responsibility of the prime Contractor to have each of its subcontractors sign the appropriate Subscription Agreement, with the appropriate Craft Union prior to the subcontractor beginning work on Project Work. Section 2.8 Binding Signatories Only This Agreement shall only be binding on the signatory Parties hereto, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such Party not performing Project Work. Section 2.9 Other City Work Nothing contained herein shall be interpreted to prohibit, restrict, or interfere with the performance of any other operation, work or function not covered by this Agreement, which may be performed by City employees or contracted for by the City for its own account, on its property or in and around a'Project site. Section 2.10 Separate Liability It is understood that the liability of the Contractor(s) and the liability of the separate Unions under this Agreement shall be several and not joint. The Unions agree that this Agreement does not have the effect of creating any joint employment status between or among the City or CWA Administrator and/or any Contractor. Section 2.11 Completed Project Work As areas of Project Work are accepted by the City, this Agreement shall have no further force or effect on such items or areas except where the Contractor is directed by the City or its representatives to engage in repairs, modification, check- out and/or warranties functions required by its contract(s) with the City under the original contract. ARTICLE 3 UNION RECOGNITION AND EMPLOYMENT Section 3.1 Reco nip tion The Contractor recognizes the Trades Coimcil and the Unions as the sole and exclusive bargaining representative for the employees engaged in Project Work. Final Drain. Community Workforce Agreement 6.22.17 8 City of Santa Ana 75A-305 Contractors further recognize that the Unions shall be the primary source of all craft labor employed on the Projects. In the event that a Contractor has its own core workforce, said Contractor shall follow the procedures outlined below. Section 3.2 Contractor Selection of Employees The Contractor shall have the right to determine the competency of all employees, the number of employees required, the duties of such employees within their craft jurisdiction, and shall have the sole responsibility for selecting employees to be laid off, consistent with Section 3.3 and Section 4.3, below. The Contractor shall also have the right to reject any applicant referred by a Union for any reason, subject to any reporting pay required by Section 6.6; provided, however, that such right is exercised in good faith and not for the purpose of avoiding the Contractor's commitment to employ qualified workers through the procedures endorsed in this Agreement. Section 3.3 Referral Procedures 3.3.1 For signatory Unions now having a job referral system contained in a Master Labor Agreement, the Contractor agrees to comply with such system and it shall be used exclusively by such Contractor, except as modified by this Agreement. Such job referral system will be operated in a nondiscriminatory manner and in full compliance with federal, state, and local laws and regulations which require equal employment opportunities and non- discrimination. All of the foregoing hiring procedures, including related practices affecting apprenticeship, shall be operated so as to consider the goals of the City to encourage employment of City residents on the Project, and to facilitate the ability of all Contractors to meet their employment needs. 3.3.2 The local Unions will exert their best efforts to recruit and refer sufficient numbers of skilled craft workers to fulfill the labor requirements of the Contractor, including specific employment obligations to which the Contractor may be legally and/or contractually obligated; and to refer apprentices as requested to develop a larger, skilled workforce. The Unions will work with their affiliated regional and national unions, and jointly with the CWA Administrator and others designated by the City, to identify and refer competent craft persons as needed for Project Work, and to identify and hire individuals, particularly residents of the City, for entrance into joint labor/management apprenticeship programs, or to participate in other identified programs and procedures to assist individuals in qualifying and becoming eligible for such apprenticeship programs, all maintained to increase the available supply of skilled craft personnel for Project Work and future constriction of maintenance work to be undertaken by the City. 3.3.3 The Union shall not knowingly refer an employee currently employed by a Contractor on a covered Project to any other Contractor. Section 3.4 Non -Discrimination in Referral, Employment, and Contracting The Unions and Contractors agree that they will not discriminate against any employee or applicant for employment in hiring and dispatching on the basis of race, color, religion, sex, gender, national origin, age, membership in a labor organization, sexual orientation, political affiliation, marital status or disability. Further, it is recognized that the City has certain policies, programs, and Final Drall Community Workforce Agreement 6.22.17 9 City of Santa Ana 75A-306 goals for the utilization of local small business enterprises. The Parties shall jointly endeavor to assure that these commitments are fully met, and that any provisions of this Agreement which may appear to interfere with local small business enterprises successfully bidding for work within the scope of this Agreement shall be carefully reviewed, and adjustments made as may be appropriate and agreed upon among the Parties, to ensure full compliance with the spirit and letter of the City's policies and commitment to its goals for the significant utilization of local small businesses as direct Contractors or suppliers for Project Work. Section 3.5 Employment of City Residents 3.5.1 The Unions and Contractors agree that, to the extent allowed by law, and as long as they possess the requisite skills and qualifications, the Unions will exert their best efforts to refer and/or recruit sufficient numbers of skilled craft "Local Residents" as defined herein, as well as Veterans, to fulfill the requirements of the Employers. In recognition of the fact that the City and the communities surrounding Project Work will be impacted by the construction of the Project Work, the parties agree to support the hiring of workers from the residents of these surrounding areas, as well as Veterans, for Project Work. Towards that end, the Unions shall exert their best efforts to encourage and provide referrals and utilization of qualified workers residing in those U. S. Postal Service zip codes which overlap all of the City of Santa Ana, as set forth in "Attachment B" attached hereto, as well as Veterans, regardless of where they reside. If the Unions cannot provide the Contractors in the attainment of a sufficient number of Veterans and Local Residents from within the first tier zip codes, the Unions shall exert their best efforts to then recruit and identify for referral Local Residents residing within Orange Comity. 3.5.2 A goal of 30% of the total work hours shall be performed from workers residing within the areas described in Section 3.5.1, as well as Veterans, regardless of where they reside. 3.5.3 The Unions agree to support the operation of pre -apprentice referral programs in the City. Further, the Unions agree to place on their referral roles or in their apprentice training programs, as appropriate and needed, qualified persons sent to them by designated City organizations or other organizations working with the City to increase construction industry work opportunities for City residents. Section 3.6 Requirements on Contractors To facilitate the dispatch of Local Residents and Veterans, all Contractors will be required to utilize the Craft Employee Request Form whenever they are requesting the referral of any employee from a Union referral list for any Covered Project, a sample of which is attached as "Attachment C." When Local Residents and Veterans are requested by the Employers, the Unions will refer such workers regardless of their place in the Unions' hiring halls' list and normal referral procedures. Section 3.7 Helmets to Hardhats The Contractors and the Unions recognize a desire to facilitate the entry into the building and construction trades of Veterans who are interested in careers in the building and construction industry. The Contractors and Unions agree to utilize the services of non-profit Veterans support organizations, including but not limited to, the Center for Military Recruitment, Assessment and Veterans Employment (hereinafter "Center") and the Center's "Helmets to Hardhats" program to serve as a resource for preliminary orientation, Final Draft Community Workforce Agreement 6.22.17 10 City of Santa Ana 75A-307 assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the Parties. For purposes of this Agreement the term "Eligible Veteran" shall have the same meaning as the term "veteran" as defined under Title 5, Section 2108(1) of the United States Code as the same may be amended or re -codified from time to time. It shall be the responsibility of each qualified applicant to provide the Unions with proof of his/her status as an Eligible Veteran. 3.7.1 The Unions and Contractors agree to coordinate with non-profit Veteran organizations, including, the Center to create and maintain an integrated database of veterans interested in working on this Project Work and of apprenticeship and employment opportunities for working on Project Work. To the extent permitted by law, the Unions will give credit to such Veterans for bona fide, provable past experience. Section 3.8 Core Employees 3.8.1 Contractors not currently signatory to a Master Labor Agreement may employ, as needed, first, a member of his core workforce, then an employee through a referral from the appropriate Union hiring hall, then a second core employee, then a second employee through the referral system, and so on until a maximum of five (5) core employees are employed, thereafter, all additional employees in the affected trade or craft shall be requisitioned from the craft hiring hall in accordance with Section 3.3. In the laying off of employees, the number of core employees shall not exceed one-half plus one of the workforce for an employer with 10 or fewer employees, assuming the remaining employees are qualified to undertake the work available. As part of this process, and in order to facilitate the contract administration procedures, as well as appropriate fringe benefit fund coverage, all Contractors shall require their core employees and any other persons employed other than through the referral process, to register with the appropriate Union hiring hall, if any, prior to their first day of employment at a project site. 3.8.2 The core work force is comprised of those employees whose names appeared on the Contractor's active payroll for sixty (60) of the one hundred (100) working days immediately before award of Project Work to the Contractor; who possess any license required by state or federal law for the Project Work to be performed; who have the ability to safely perform the basic functions of the applicable trade and who have been residing within Orange County for the one hundred (100) working days immediately prior to the award of Project Work to the Contractor. 3.8.3 Prior to each Contractor perfom7ing any work on the Project, each Contractor shall provide a list of his core employees to the CWA Administrator and the Trades Council. Failure to do so will prohibit the Contractor from using any core employees. Upon request by any Party to this Agreement, the Contractor hiring any core employee shall provide satisfactory proof (i.e., payroll records, quarterly tax records, driver's license, voter registration, postal address and such governmental documentation) evidencing the core employee's qualification as a core employee to the CWA Administrator and the Trades Council. Final Draft Community Workforce Agreement 6.22.17 11 City of Santa Ana 75A-308 Section 3.9 Time for Referral If any Union's registration and referral system does not fulfill the requirements for specific classifications requested by any Contractor within forty-eight (48) hours (excluding Saturdays, Sundays and holidays), that Contractor may use employment sources other than the Union registration and referral services, and may employ applicants meeting such classification from any other available source. The Contractors shall inform the Union of any applicants hired from other sources and such applicants shall register with the appropriate hiring hall, if any, before commencing work. Section 3.10 Lack of Referral Procedure If a signatory Union does not have a job referral system as set forth in Section 3.3 above, the Contractors shall give the Union equal opportunity to refer applicants. Contractors shall notify the Union of employees so hired, as set forth in Section 3.5. Section 3.11 Union Membership No employee covered by this Agreement shall be required to join any Union as a condition of being employed, or remaining employed, for the completion of Project Work; provided, however, that any employee who is a member of the referring Union at the time of referral shall maintain that membership in good standing while employed under this Agreement. All employees shall, however, be required to comply with the Union security provisions of the applicable Master Labor Agreement for the period during which they are performing on -site Project Work to the extent, as permitted by law, of rendering payment of the applicable monthly and working dues only, as uniformly required of all craft employees while working on the Project and represented by the applicable signatory Union. Section 3.12 Individual Seniority Except as provided in Section 4.3, individual seniority shall not be recognized or applied to employees working on Project Work; provided, however, that group and/or classification seniority in a Union's Master Labor Agreement as of the effective date of this Agreement shall be recognized for purposes of layoffs. Section 3.13 Foremen The selection and number of craft foreman and/or general foreman shall be the responsibility of the Contractor. All foremen shall take orders exclusively from the designated Contractor representatives. Craft foreman shall be designated as working foreman at the request of the Contractors. Section 3.14 Out of State Workers In detenriming compliance with the targeted hiring goals of Section 3.5 above, hours of Project Work performed by residents of states other than California will be excluded from the calculation. ARTICLE 4 UNION ACCESS AND STEWARDS Section 4.1 Access to Project Sites Authorized representatives of the Union shall have access to Project Work, provided that they do not interfere with the work of employees and further provided that such representatives shall notify the person charged with on -site project supervision and fully comply with posted visitor, security and safety rules. Final Draft Community Workforce Agreement 622.17 12 City of Santa Ana 75A-309 Section 4.2 Stewards 4.2.1 Each signatory Union shall have the right to dispatch a working journeyperson as a steward for each shift, and shall notify the Contractor in writing of the identity of the designated steward or stewards prior to the assumption of such person's duties as steward. Such designated steward or stewards shall not exercise any supervisory functions. There will be no non -working stewards. Stewards will receive the regular rate of pay for their respective crafts. 4.2.2 In addition to his/her work as an employee, the steward should have the right to receive, but not to solicit, complaints or grievances and to discuss and assist in the adjustment of the same with the employee's appropriate supervisor. Each steward should be concerned only with the employees of the steward's Contractor and, if applicable, subcontractor(s), and not with the employees of any other Contractor. A Contractor will not discriminate against the steward in the proper performance of his/her Union duties. 4.2.3 When a Contractor has multiple, non-contiguous work locations at one site, the Contractor may request and the Union shall appoint such additional working stewards as the Contractor requests to provide independent coverage of one or more such locations. In such cases, a steward may not service more than one work location without the approval of the Contractor. 4.2.4 The stewards shall not have the right to determine when overtime shall be worked or who shall work overtime. Section 4.3 Steward Layoff/Discharge Contractor agrees to notify the appropriate Union twenty-four (24) hours before the layoff of a steward, except in the case of disciplinary discharge for just cause. If the steward is protected against such layoff by the provisions of the applicable Master Labor Agreement, such provisions shall be recognized when the steward possesses the necessary qualifications to perform the remaining work. In any case in which the steward is discharged or disciplined for just cause, the appropriate Union will be notified immediately by the Contractor, and such discharge or discipline shall not become final (subject to any later filed grievance) until twenty-four (24) hours after such notice has been given. ARTICLE 5 WAGES AND BENEFITS Section 5.1 Wages All employees covered by this Agreement shall be classified in accordance with work performed and paid by the Contractors the hourly wage rates for those classifications in compliance with the applicable prevailing wage rate determination established pursuant to applicable law. If a prevailing rate increases under law, the Contractor shall pay that rate as of its effective date under the law. This Agreement does not relieve Contractors directly signatory to a Master Labor Agreement with one of the Unions signing this Agreement from paying all of the wages set forth in such Agreements. Final Draft Community Workforce Agreement 6.22.17 13 City of Santa Ana 75A-310 Section 5.2 Benefits 5.2.1 Contractors shall pay contributions to the established employee benefit funds in the amounts designated in the appropriate Master Labor Agreement and make all employee — authorized deductions in the amounts designated in the appropriate Master Labor Agreement, however, such contributions shall not exceed the contribution amounts set forth in the applicable prevailing wage determination. This Agreement does not relieve Contractors directly signatory to one or more of the Master Labor Agreements from making all contributions set forth in those Master Labor Agreements without reference to the foregoing. 5.2.2 The Contractor adopts and agrees to be bound by the written terms of the applicable, legally established, trust agreement(s) specifying the detailed basis on which payments are to be made into, and benefits paid out of, such trust funds for its employees. The Contractor authorizes the Parties to such trust funds to appoint trustees and successor trustees to administer the trust funds and hereby ratifies and accepts the trustees so appointed as if made by the Contractor. 5.2.3 Each Contractor and subcontractor is required to certify to the CWA Administrator that it has paid all benefit contributions due and owing to the appropriate Trust(s) prior to the receipt of its final payment and/or retention. Further, upon timely notification by a Union to the CWA Administrator, the CWA Administrator shall work with any prime Contractor or subcontractor who is delinquent in payments to assure that proper benefit contributions are made, to the extent of requesting the City or the prime Contractor to withhold payments otherwise due such Contractor, until such contributions have been made or otherwise guaranteed. Section 5.3 Wage Premiums Wage premiums, including but not limited to pay based on height of work, hazard pay, scaffold pay and special skills shall not be applicable to work under this Agreement, except to the extent provided for in any applicable prevailing wage determination. ARTICLE 6 HOURS OF WORK, OVERTIME, SHIFTS AND HOLIDAYS Section 6.1 Hours of Work Eight (8) hours per day between the hours of 6:00 a.m. and 5:30 p.m., plus one-half ('/Z) hour unpaid lunch approximately mid -way through the shift, shall constitute the standard work day. Forty (40) hours per week shall constitute a regular week's work. The work week will start on Sunday and conclude on Saturday. The foregoing provisions of this Article are applicable unless otherwise provided in the applicable prevailing wage determination, or unless changes are permitted by law and such are agreed upon by the Parties. Nothing herein shall be construed as guaranteeing any employee eight (8) hours per day or forty (40) hours per week, or a Monday through Friday standard work schedule. Section 6.2 Place of Work Employees shall be at their place of work (as designated by the Contractor), at the starting time and shall remain at their place of work, performing their assigned functions, until quitting time. The place of work is defined as the gang or tool box or equipment at the employee's assigned work location or the place where the foreman gives Final Draft Community Workforce Agreement 6.22.17 14 City of Santa Ana 75A-311 instructions. The Parties reaffirm their policy of a fair day's work for a fair day's wage. Except as provided in Section 6.6, there shall be no pay for time not worked unless the employee is otherwise engaged at the direction of the Contractor. Section 6.3 Overtime Overtime shall be paid in accordance with the requirements of the applicable prevailing wage determination. There shall be no restriction on the Contractor's scheduling of overtime or the nondiscriminatory designation of employees who will work overtime. There shall be no pyramiding of overtime (payment of more than one form of overtime compensation for the same hour) under any circumstances. Section 6.4 Shifts and Alternate Work Schedules 6.4.1 Alternate starting and quitting time and/or shift work may be performed at the option of the Contractor upon three (3) days' prior notice to the affected Union(s), unless a shorter notice period is provided for in the applicable Master Labor Agreement If two shifts are worked, each shall consist of eight (8) hours of continuous work exclusive of a one-half ('/2) hour non -paid lunch period, for eight (8) hours pay. The last shift shall start on or before 6:00 p.m. The first shift starting at or after 6:00 a.m. is designated as the first shift, with the second shift following. 6.4.2 Contractors, the Trades Council and the Union recognize the economic impact upon the City and City residents of the Project being widertaken by the City and agree that all Parties to this Agreement desire and intend Project Work to be undertaken in a cost efficient and effective manner to the highest standard of quality and craftsmanship. Recognizing the economic conditions, the Parties agree that, except to the extent permitted by law, employees performing Project Work shall not be entitled to any differentials or additional pay based upon the shift or work schedule of the employees. Instead, all employees working on Project Work shall be paid at the same base rate regardless of shift or work schedule worked. 6.4.3 Because of operational necessities, the second shift may, at the City's direction, be scheduled without the preceding shift having been worked. It is recognized that the City's operations and/or mitigation obligations may require restructuring of normal work schedules. Except in an emergency or when specified in the City's bid specification, the Contractor shall give affected Union(s) at least three (3) days' notice of such schedule changes. Section 6.5 Holidays Recognized holidays for Project Work shall be those set forth and governed by the prevailing wage determination(s) applicable to such Project Work. Section 6.6 Show -up Pay 6.6.1 Except as otherwise required by State law, Employees reporting for work and for whom no work is provided, except when given prior notification not to report to work, shall receive two (2) hours pay at the regular straight time hourly rate. Employees who are directed to start work shall receive four (4) hours of pay at the regular straight time hourly rate. Employees who work beyond four (4) hours shall be paid for actual hours worked. Whenever reporting pay is provided for employees, they will be required to remain at the Project Site and available for Final Draft Community Workforce Agreement 6.22.17 15 City of Santa Ana 75A-312 work for such time as they receive pay, unless released earlier by the principal supervisor of the Contractor(s) or his/her designated representative. Each employee shall furnish his/her Contractor with his/her current address and telephone number, and shall promptly report any changes to the Contractor. 6.6.2 An employee called out to work outside of his/her shift shall receive a minimum of two (2) hours pay at the appropriate rate. This does not apply to time worked as an extension of (before or after) the employee's normal shift. 6.6.3 When an employee leaves the job or work location of his/her own volition, or is discharged for cause or is not working as a result of the Contractor's invocation of Section 12.3, the employee shall only be paid for actual time worked. Section 6.7 Meal Periods The Contractor will schedule a meal period of no more than one- half hour duration at the work location at approximately mid -point of the schedule shift; provided, however, that the Contractor may, for efficiency of the operation, establish a schedule which coordinates the meal periods of two or more crafts. An employee may be required to work through his meal period because of an emergency or a threat to life or property, or for such other reasons as are in the applicable Master Labor Agreement, and if he is so required, he shall be compensated in the manner established in the applicable Master Labor Agreement. Section 6.8 Make-up ,Days To the extent permitted by the applicable general wage determination, when an employee has been prevented from working for reasons beyond the control of the employer, including, but not limited to inclement weather or other natural causes, during the regularly scheduled work week, a make-up day may be worked on a non -regularly scheduled work day for which an employee shall receive eight (8) hours pay at the straight time rate of pay or any premium rate required for such hours under the state prevailing wage law. ARTICLE 7 WORK STOPPAGES AND LOCK -OUTS Section 7.1 No Work Stoppages or Disruptive Activity The Trades Council and the Unions signatory hereto agree that neither they, and each of them, nor their respective officers or agents or representatives, shall incite or encourage, condone or participate in any strike, walk -out, slow- down, picketing, observing picket lines or other activity of any nature or kind whatsoever, for any cause or dispute whatsoever with respect to or in any way related to Project Work, or which interferes with or otherwise disrupts, Project Work, or with respect to or related to the City or Contractors, including, but not limited to, economic strikes, unfair labor practice strikes, safety strikes, sympathy strikes and jurisdictional strikes whether or not the underlying dispute is arbitrable. Any such actions by the Trades Council, or Unions, or their members, agents, representatives or the employees they represent shall constitute a violation of this Agreement. The Trades Council and the Union shall take all steps necessary to obtain compliance with this Article and neither should be held liable for conduct for which it is not responsible. Section 7.2 Employee Violations The Contractor may discharge any employee violating Section 7.1 above and any such employee will not be eligible for rehire under this Agreement. Final Draft Community Workforce Agreement 6.22.17 16 City of Santa Ana 75A-313 Section 7.3 Standing to Enforce The City, the CWA Administrator, or any Contractor affected by an alleged violation of Section 7.1 shall have standing and the right to enforce the obligations established therein. Section 7.4 Expiration of Master Labor Agreement If the Master Labor Agreement, or any local, regional, and other applicable collective bargaining agreements expire during the term of the Project, the Union(s) agree that there shall be no work disruption of any kind as described in Section 7.1 above as a result of the expiration of any such agreement(s) having application on this Project and/or failure of the involved Parties to that agreement to reach a new contract. Terms and conditions of employment established and set at the time of bid shall remain established and set. Otherwise to the extent that such agreement does expire and the Parties to that agreement have failed to reach concurrence on a new contract, work will continue on the Project on one of the following two (2) options, both of which will be offered by the Unions involved to the Contractors affected: 7.4.1 Each of the Unions with a contract expiring must offer to continue working on the Project under interim agreements that retain all the terms of the expiring contract, except that the Unions involved in such expiring contract may each propose wage rates and employer contribution rates to employee benefit funds under the prior contract different from what those wage rates and employer contributions rates were under the expiring contracts. The terms of the Union's interim agreement offered to Contractors will be no less favorable than the terms offered by the Union to any other employer or group of employers covering the same type of construction work in Orange County. 7.4.2 Each of the Unions with a contract expiring must offer to continue working on the Project under all the terms of the expiring contract, including the wage rates and employer contribution rates to the employee benefit funds, if the Contractor affected by that expiring contract agrees to the following retroactive provisions: if a new Master Labor Agreement, local, regional or other applicable labor agreement for the industry having application at the Project is ratified and signed during the term of this Agreement and if such new labor agreement provides for retroactive wage increases,, then each affected Contractor shall pay to its employees who performed work covered by this Agreement at the Project during the hiatus between the effective dates of such expired and new labor agreements, an amount equal to any such retroactive wage increase established by such new labor agreement, retroactive to whatever date is provided by the new labor agreement for such increase to go into effect, for each employee's hours worked on the Project during the retroactive period. All Parties agree that such affected Contractors shall be solely responsible for any retroactive payment to its employees. 7.4.3 Some Contractors may elect to continue to work on the Project under the terms of the interim agreement option offered under paragraph 7.4.1 and other Contractors may elect to continue to work on the Project under the retroactivity option offered under paragraph 7.4.2. To decide between the two options, Contractors will be given one week after the particular labor agreement has expired or one week after the Union has personally delivered to the Contractors in writing its specific offer of terms of the interim agreement pursuant to paragraph 7.4.1, Final Draft Community Workforce Agreement 6.22.17 17 City of Santa Ana 75A-314 whichever is the later date. If the Contractor fails to timely select one of the two options, the Contractor shall be deemed to have selected the provisions of 7.4.2. Section 7.5 No Lockouts Contractors shall not cause, incite, encourage, condone or participate in any lock -out of employees with respect to Project Work during the tem7 of this Agreement. The term "lock -out" refers only to a Contractor's exclusion of employees in order to secure collective bargaining advantage, and does not refer to the discharge, termination or layoff of employees by the Contractor for any reason in the exercise of rights pursuant to any provision of this Agreement, or any other agreement, nor does "lock -out' include the City's decision to stop, suspend or discontinue any Project Work or any portion thereof for any reason. Section 7.6 Best Efforts to End Violations 7.6.1 If a Contractor contends that there is any violation of this Article or Section 8.3, it shall notify, in writing, the Executive Secretary of the Trades Council, the Senior Executive of the involved Union(s) and the CWA Administrator. The Executive Secretary and the leadership of the involved Union(s) will immediately instruct, order and use their best efforts to cause the cessation of any violation of the relevant Article. 7.6.2 If the Union contends that any Contractor has violated this Article, it will notify that the Contractor and the CWA Administrator, setting forth the facts which the Union contends violate the Agreement, at least twenty-four (24) hours prior to invoking the procedures of Section 7.8. The CWA Administrator shall promptly order the involved Contractor(s) to cease any violation of the Article. Section 7.7 Withholding of services for failure to pay wages and fringe benefits 7.7.1 Notwithstanding any provision of this Agreement to the contrary, it shall not be a violation of this Agreement for any Union to withhold the services of its members (but not the right to picket) from a particular Contractor who: (a) fails to timely pay its weekly payroll; or (b) fails to make timely payments to the Union's Joint Labor/Management Trust Funds in accordance with the provisions of the applicable Master Labor Agreements. Prior to withholding its members' services for the Contractor's failure to make timely payments to the Union's Joint Labor/Management Trust Funds, the Union shall give at ]east ten (10) days (unless a lesser period of time is provided in the Union's Master Labor Agreement, but in no event less than forty-eight (48) hours) written notice of such failure to pay by registered or certified mail, return receipt requested, and by facsimile transmission to the involved Contractor and to the City. Union will meet within the ten (10) day period to attempt to resolve the dispute. 7.7.2 Upon the payment of the delinquent Contractor of all monies due and then owing for wages and/or fringe benefit contributions, the Union shall direct its members to return to work and the Contractor shall return all such members back to work. Final Draft Community Workforce Agreement 6.22.17 18 City of Santa Ana 75A-315 Section 7.8 Expedited Enforcement Procedure Any party, including the City, which the Parties agree is a Party to the Agreement for purposes of this Article and an intended beneficiary of this Article, or the CWA Administrator, may institute the following procedures, in lieu of or in addition to any other action at law or equity, when a breach of Section 7.1 or 7.5, above, or Section 8.3 is alleged. 7.8.1 The Party invoking this procedure shall notify Fred Horowitz, or Louis Zigman, who have been selected by the negotiating Parties, and whom the Parties agree shall be the permanent arbitrators under this procedure. If the permanent arbitrators are unavailable at any time, any one of the permanent Arbitrators who is notified shall appoint his alternate to hear the matter. Expenses incurred in arbitration shall be home equally by the Parties involved in the arbitration and the decision of the arbitrator shall be final and binding on the Parties, provided, however, that the arbitrator shall not have the authority to alter or amend or add to or delete from the provisions of this Agreement in any way. Notice to the arbitrator shall be by the most expeditious means available, with notices to the Parties alleged to be in violation, and to the Trades Council if it is a Union alleged to be in violation. For purposes of this Article, written notice may be given by telegram, facsimile, hand delivery or overnight mail and will be deemed effective upon receipt. 7.8.2 Upon receipt of said notice, the arbitrator named above or his/her alternate shall sit and hold a hearing within twenty-four (24) hours if it is contended that the violation still exists, but not sooner than twenty-four (24) hours after notice has been dispatched to the Executive Secretary and the Senior Official(s) as required by Section 7.6, as above. 7.8.3 The arbitrator shall notify the Parties of the place and time chosen for this hearing. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator's discretion, shall not exceed 24 hours unless otherwise agreed upon by all Parties. A failure of any Party or Parties to attend said hearings shall not delay the hearing of evidence or the issuance of any award by the arbitrator. 7.8.4 The sole issue at the hearing shall be whether or not a violation of Sections 7.1 or 7.5, above, or Section 8.3 has in fact occurred. The arbitrator shall have no authority to consider any matter in justification, explanation or mitigation of such violation. The award shall be issued in writing within three (3) hours after the close of the hearing, and may be issued without an opinion. If any Party desires a written opinion, one shall be issued within fifteen (15) days, but its issuance shall not delay compliance with, or enforcement of, the Award. The arbitrator may order cessation of the violation of the Article and other appropriate relief, and such award shall be served on all Parties by hand or registered mail upon issuance. 7.8.5 Such award shall be final and binding on all Parties and may be enforced by any court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to herein above in the following manner. Written notice of the filing of such enforcement proceedings shall be given to the other Party. In any judicial proceeding to obtain a temporary order enforcing the arbitrator's award as issued under this Article, all Parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agreement does not waive any Party's right to participate in a hearing for a final order of enforcement. The court's Final Draft Community Workforce Agreement 6.22.17 19 City of Santa Ana 75A-316 order or orders enforcing the arbitrator's award shall be served on all Parties by hand or by delivery to their address as shown on this Agreement (for a Union), as shown on their business contract for work under this Agreement (for a Contractor) and to the representing Union (for an employee), by certified mail by the Party or Parties first alleging the violation. 7.8.6 Any rights created by statute or law governing arbitration proceedings inconsistent with the above procedure or which interfere with compliance hereto are hereby waived by the Parties to whom they accrue. 7.8.7 The fees and expenses of the arbitrator shall be equally divided between the Party or Parties initiating this procedure and the respondent Party or Parties. ARTICLE 8 WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES Section 8.1 Assienment of Work The assignment of Project Work will be solely the responsibility of the Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the "Plan") or any successor Plan. Section 8.2 The Plan All jurisdictional disputes on Project Work between or among the building and construction trades Unions and the Employers parties to this Agreement, shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Employers and Unions parties to this Agreement. 8.2.1 If a dispute arising under this Article involves the Southwest Regional Council of Carpenters or any of its subordinate bodies, an Arbitrator shall be chosen by the procedures specified in Article V, Section 5, of the Plan from a list composed of John Kagel, Thomas Angelo, Robert Hirsch, and Thomas Pagan, and the Arbitrator's hearing on the dispute shall be held at the offices of the Trades Council within 14 days of the selection of the Arbitrator. All other procedures shall be as specified in the Plan. Section 8.3 No Work Disruption Over Jurisdiction All jurisdictional disputes shall be resolved without the occurrence of any strike, work stoppage, or slow -down of any nature, and the Employer's assignment shall be adhered to until the dispute is resolved. Individuals violating this section shall be subject to immediate discharge. Section 8.4 Pre -Job Conferences As provided in Article 16, each Contractor will conduct a pre -job conference with the appropriate affected Union(s) prior to commencing work. The Trades Council and the CWA Administrator shall be advised in advance of all such conferences and may participate if they wish. Section 8.5 Resolution of Jurisdictional Disputes If any actual or threatened strike, sympathy strike, work stoppage, slow down, picketing, hand -billing or otherwise advising the public that a Finat Draft Community Workforce Agreement 6.22.17 20 City of Santa Ana 75A-317 labor dispute exists, or interference with the progress of Project Work by reason of a jurisdictional dispute or disputes occurs, the Parties shall exhaust the expedited procedures set forth in the Plan, if such procedures are in the plan then currently in effect, or otherwise as in Article 7 above. ARTICLE 9 MANAGEMENT RIGHTS Section 9.1 Contractor and City Rights The Contractors and the City have the sole and exclusive right and authority to oversee and manage construction operations on Project Work without any limitations unless expressly limited or required by a specific provision of this Agreement or an MLA. In addition to the following and other rights of the Contractors enumerated in this Agreement, the Contractors expressly reserve their management rights and all the rights conferred upon them by law. The Contractor's rights include, but are not limited to, the right to: (a) Plan, direct and control operations of all work; (b) Hire, promote, transfer and layoff their own employees, respectively, as deemed appropriate to satisfy work and/or skill requirements; (c) Promulgate and require all employees to observe reasonable job rules and security and safety regulations; (d) Discharge, suspend or discipline their own employees for just cause; (e) Utilize, in accordance with City approval, any work methods, procedures or techniques, and select, use and install any types or kinds of materials, apparatus or equipment, regardless of source of manufacture or construction; assign and schedule work at their discretion; and (f) Assign overtime, determine when it will be worked and the number and identity of employees engaged in such work, subject to such provisions in the applicable Master Labor Agreement (s) requiring such assignments be equalized or otherwise made in a nondiscriminatory manner. Section 9.2 Specific City Rights In addition to the following and other rights of the City enumerated in this Agreement, the City expressly reserves its management rights and all the rights conferred on it by law. The City's rights (and those of the Contract Administrator on its behalf) include but are not limited to the right to: (a) Inspect any construction site or facility to ensure that the Contractor follows the applicable safety and other work requirements; (b) Require Contractors to establish a different work week or shift schedule for particular employees as required to meet the operational needs of the Project Work at a particular location; Final Draft Community Workforce Agreement 6.22.17 21 City of Santa Ana 75A-318 (c) At its sole option, terminate, delay and/or suspend any and all portions of the covered work at any time; prohibit some or all work on certain days or during certain hours of the day to accommodate the ongoing operations of the City's Facilities and/or to mitigate the effect of ongoing Project Work on businesses and residents in the neighborhood of the Project site; and/or require such other operational or schedule changes it deems necessary, in its sole judgment, to effectively maintain its primary mission and remain a good neighbor to those in the area of its facilities. (In order to permit the Contractors and Unions to make appropriate scheduling plans, the City will provide the CWA Administrator, and the affected Contractor(s) and Union(s) with reasonable notice of any changes it requires pursuant to this section; provided, however, that if notice is not provided in time to advise employees not to report for work, show - up pay shall be due pursuant to the provision of Article 6, Section 6.6); (d) Approve any work methods, procedures and techniques used by Contractors whether or not these methods, procedures or techniques are part of industry practices or customs; and (e) Investigate and process complaints, through the CWA Administrator, in the matter set forth in Articles 7 and 10. Section 9.3 Use of Materials There should be no limitations or restriction by Union upon a Contractor's choice of materials or design, nor, regardless of source or location, upon the full use and utilization, of equipment, machinery, packaging, precast, prefabricated, prefinished, or preassembled materials, tools or other labor saving devices, subject to the application of the State Public Contracts and Labor Codes as required by law. The onsite installation or application of such items shall be performed by the craft having jurisdiction over such work. Section 9.4 Special Equipment, Warranties and Guaranties 9.4.1 It is recognized that certain equipment of a highly technical and specialized nature may be installed at Project Work sites. The nature of the equipment, together with the requirements for manufacturer's warranties, may dictate that it be prefabricated pre -piped and/or pre -wired and that it be installed under the supervision and direction of the City's and/or manufacturer's personnel. The Unions agree to install such equipment without incident. 9.4.2 The Parties recognize that the Contractor will initiate from time to time the use of new technology, equipment, machinery, tools, and other labor -savings devices and methods of performing Project Work. The Union agrees that they will not restrict the implementation of such devices or work methods. The Unions will accept and will not refuse to handle, install or work with any standardized and/or catalogue: parts, assemblies, accessories, prefabricated items, preassembled items, partially assembled items, or materials whatever their source of manufacture or construction. 9.4.3 If any disagreement between the Contractor and the Unions concerning the methods of implementation or installation of any equipment, or device or item, or method of work, arises, or whether a particular part or pre -assembled item is a standardized or catalog part Final Draft Community Workforce Agreement 6.22.17 22 City of Santa Ana 75A-319 or item, the work will precede as directed by the Contractor and the Parties shall immediately consult over the matter. If the disagreement is not resolved, the affected Union(s) shall have the right to proceed through the procedures set forth in Article 10. Section 9.5 No Less Favorable Treatment The parties agree that Project Work will not receive less favorable treatment than that on any other project which the Unions, Contractors and employees work. ARTICLE 10 SETTLEMENT OF GRIEVANCES AND DISPUTES Section 10.1 Cooperation and Harmony on Site 10.1.1 This Agreement is intended to establish and foster continued close cooperation between management and labor. The Trades Council shall assign a representative to this Project for the purpose of assisting the local Unions, and working with the CWA Administrator, together with the Contractors, to complete the construction of the Project economically, efficiently, continuously and without any interruption, delays or work stoppages. 10.1.2 The CWA Administrator, the Contractors, Unions, and employees collectively and individually, realize the importance to all Parties of maintaining continuous and uninterrupted performance Project Work, and agree to resolve disputes in accordance with the grievance provisions set forth in this Article or, as appropriate, those of Article 7 or 8. 10.1.3 The CWA Administrator shall oversee the processing of grievances under this Article and Articles 7 and 8, including the scheduling and arrangements of facilities for meetings, selection of the arbitrator from the agreed -upon panel to hear the case, and any other administrative matters necessary to facilitate the timely resolution of any dispute; provided; however, it is the responsibility of the principal parties to any pending grievance to insure the time limits and deadlines are met. Section 10.2 Processing Grievances Any questions arising out of and during the term of this Agreement involving its interpretation and application, which includes applicable provisions of the Master Labor Agreement, but not jurisdictional disputes or alleged violations of Section 7.1 and 7.4 and similar provisions, shall be considered a grievance and subject to resolution under the following procedures. Step 1. Employee Grievances When any employee subject to the provisions of this Agreement feels aggrieved by an alleged violation of this Agreement, the employee shall, through his local Union business representative or, job steward, within ten (10) working days after the occurrence of the violation, give notice to the work site representative of the involved Contractor stating the provision(s) alleged to have been violated. A business representative of the local. Union or the job steward and the work site representative of the involved Contractor shall meet and endeavor to resolve the matter within ten (10) working days after timely notice has been given. If they fail to resolve the matter within the prescribed period, the grieving party may, within ten (10) working days thereafter, pursue Step 2 of this grievance procedure provided the Final Draft Community Workforce Agreement 6.22.17 23 City of Santa Ana 75A-320 grievance is reduced to writing, setting forth the relevant information, including a short description thereof, the date on which the alleged violation occurred, and the provision(s) of the Agreement alleged to have been violated. Grievances and disputes settled at Step 1 shall be non- precedential except as to the parties directly involved. Union or Contractor Grievances Should the Union(s) or any Contractor have a dispute with the other Party(ies) and, if after conferring within ten (10) working days after the disputing Party knew or should have known of the facts or occurrence giving rise to the dispute, a settlement is not reached within five (5) working days, the dispute shall be reduced to writing and processed to Step 2 in the same manner as outlined in Step 1 above for the adjustment of an employee complaint. Step 2. The business manager of the involved Union or his designee, together with the site representative of the involved Contractor, and the labor relations representative of the CWA Administrator, shall meet within seven (7) working days of the referral of the dispute to this second step to arrive at a satisfactory settlement thereof. If the Parties fail to reach an agreement, the dispute may be appealed in writing in accordance with the provisions of Step 3 within seven (7) calendar days after the initial meeting at Step 2. Step 3• (a) If the grievance shall have been submitted but not resolved under Step 2, either the Union of Contractor Party may request in writing to the CWA Administrator (with copy(ies) to the other Party(ies) within seven (7) calendar days after the initial Step 2 meeting, that the grievance be submitted to an arbitrator selected from the agreed upon list in. "Attachment (D)" attached hereto, on a rotational basis in the order listed. The CWA Administrator shall notify the parties to the grievance of the date, time and location of the hearing. The failure of any party to attend said hearing shall not delay the hearing of evidence or the issuance of any decision by the arbitrator. The decision of the arbitrator shall be final and binding on all parties. Should any party seek confirmation of the award made by the arbitrator; the prevailing party shall be entitled to receive its reasonable attorney fees and costs. (b) Failure of the grieving Party to adhere to the time limits established herein shall render the grievance null and void. The time limits established herein may be extended only by consent of the Parties involved at the particular step where the extension is agreed upon. The arbitrator shall have the authority to make decisions only on issues presented and shall not have the authority to change, amend, add to or detract from any of the provisions of this Agreement. (c) The fees and expenses incurred by the arbitrator, as well as those jointly utilized by the Parties (i.e. conference room, court reporter, etc.) in arbitration, shall be divided equally by the Parties to the arbitration, including Union(s) and Contractor(s) involved. Section 10.3 Limit on Use of Procedures The procedures contained in this Article shall not be applicable to any alleged violation of Articles 7 or 8, with a single exception that any employee discharged for violation of Section 7.2, or Section 8.3, may resort to the procedures of this Article to determine only if he/she was, in fact, engaged in that violation. Final Draft Commmiity Workforce Agreement 6.22.17 24 City of Santa Ana 75A-321 Section 10.4 Notice The CWA Administrator (and the City, in the case of any grievance regarding the Scope of this Agreement), shall be notified by the involved Contractor of all actions at Steps 2 and 3, and further, the CWA Administrator shall, upon its own request, be permitted to participate fully as a party in all proceedings at such steps. ARTICLE 11 REGULATORY COMPLIANCE Section 11.1 Compliance with All Laws The Trades Council and all Unions, Contractors, and their employees shall comply with all applicable federal and state laws, ordinances and regulations including, but not limited to, those relating to safety and health, employment and applications for employment. All employees shall comply with the safety regulations established by the City, the CWA Administrator or the Contractor. Employees must promptly report any injuries or accidents to a supervisor. Section 11.2 Prevailing Wage Compliance All Contractors shall comply with the state laws and regulations, as well as Santa Ana Municipal Code section 33-206 on prevailing wages. Compliance with this obligation may be enforced by the appropriate parties through Article 10 above, or by pursing the remedies available under state law through the Labor Commissioner or the Department of Industrial Relations. Section 11.3 Violations of Law Should there be a finding by a Court or administrative tribunal of competent jurisdiction that a Contractor has violated federal and/or state law or regulation, the City, upon notice to the Contractor that it or its subcontractors is in such violation (including any finding of non-compliance with the California prevailing wage obligations as enforced pursuant to DIR regulations), the City, and in the absence of the Contractor or subcontractor remedying such violation, may take such action as it is permitted by law or contract to encourage that Contractor to come into compliance, including, but not limited to, assessing fines and penalties and/or removing the offending Contractor from Project Work. ARTICLE 12 SAFETY AND PROTECTION OF PERSON AND PROPERTY Section 12.1 Safety 12.1.1 It shall be the responsibility of each Contractor to ensure safe working conditions and employee compliance with any safety rules contained herein or established by the City or the Contractor, whichever is most restrictive shall apply. It is understood that employees have an individual obligation to use diligent care to perform their work in a safe manner and to protect themselves and the property of the Contractor and the City. 12.1.2 Employees shall be bound by the safety, security and visitor rules established by the Contractor and/or the City. These rules will be published and posted. An employee's failure to satisfy his/her obligations under this section will subject him/her to discipline, up to and including discharge. Final Draft Community Workforce Agreement 6,22.17 25 City of Santa Ana 75A-322 12.1.3 The Parties shall adopt the Substance Abuse Policy attached hereto as Attachment "E," which shall be the policy and procedure utilized under this Agreement. Section 12.2 Suspension of Work for Safety A Contractor may suspend all or a portion of the job to protect the life and safety of employees. In such cases, employees will be compensated only for the actual time worked; provided, however, that where the Contractor requests employees to remain at the site and be available for work, the employees will be compensated for stand-by time at their basic hourly rate of pay. Section 12.3 Water and Sanitary Facilities The Contractor shall provide adequate supplies of drinking water and sanitary facilities for all employees as required by state law or regulation. ARTICLE 13 TRAVEL AND SUBSISTENCE Travel expenses, travel time, subsistence allowances, zone rates and parking reimbursements shall be paid in accordance with the applicable Master Labor Agreement unless superseded by the applicable prevailing wage determination. ARTICLE 14 APPRENTICES Section 14.1 Importance of Training The Parties recognize the need to maintain continuing support of the programs designed to develop adequate numbers of competent workers in the construction industry, the obligation to capitalize on the availability of the local work force in the area served by the City, and the opportunities to provide continuing work under the construction program. To these ends, the Parties will facilitate, encourage, and assist local residents to commence and progress in Labor/Management Apprenticeship and/or training Programs in the construction industry leading to participation in such apprenticeship programs. The City and the Trades Council, will work cooperatively to identify, or establish and maintain, effective programs and procedures for persons interested in entering the construction industry and which will help prepare them for the formal joint labor/management apprenticeship programs maintained by the signatory Unions. Section 14.2 Use of Apprentices 14.2.1 Apprentices used on Projects under this Agreement shall be registered in Joint Labor Management Apprenticeship Programs approved by the State of California. Apprentices may comprise up to thirty percent (30%) of each craft's work force (calculated by hours worked) at any time, unless the standards of the applicable joint apprenticeship committee confirmed by the Division of Apprenticeship Standards ("DAS"), establish a lower or higher maximum percentage. Where the standards permit a higher percentage, such percentage shall apply on Project Work. Where the applicable standards establish a lower percentage, the applicable Union will use its best efforts with the Joint Labor Management apprenticeship committee and, if necessary, the DAS to permit up to thirty percent (30%) apprentices on the Project. Final Draft Community Workforce Agreement 6.22.17 26 City of Santa Ana 75A-323 14.2.2 The Unions agree to cooperate with the Contractor in furnishing apprentices as requested up to the maximum percentage. The apprentice ratio for each craft shall be in compliance, at a minimum, with the applicable provisions of the Labor Code relating to utilization of apprentices. The City shall encourage such utilization, and, both as to apprentices and the overall supply of experienced workers, the CWA Administrator will work with the Trades Council to assure appropriate and maximum utilization of apprentices and the continuing availability of both apprentices and journey persons. 14.2.3 The Parties agree that apprentices will not be dispatched to Contractors working under this Agreement unless there is a journeymen working on the project where the apprentice is to be employed who is qualified to assist and oversee the apprentice's progress through the program in which he is participating. 14.2.4 All apprentices shall work under the direct supervision of a journeyman from the trade in which the apprentice is indentured. A journeyman shall be defined as set forth in the California Code of Regulations, Title 8 [apprenticeship] section 205, which defines a journeyman as a person who has either completed an accredited apprenticeship in his or her craft, or has completed the equivalent of an apprenticeship in length and content of work experience and all other requirements in the craft which has workers classified as journeyman in the apprenticeable occupation. Should a question arise as to a journeyman's qualification under this subsection, the Contractor shall provide adequate proof evidencing the worker's qualification as a journeyman to the Trades Council. ARTICLE 15 WORKING CONDITIONS Section 15.1 Meal and Rest Periods There will be no non -working times established during working hours except as may be required by applicable state law or regulations. Meal periods and Rest periods shall be as provided for in Wage Order 16. Individual coffee containers will be permitted at the employees' work location; however, there will be no organized coffee breaks. Section 15.2 Work Rules The City, the CWA Administrator, and/or relevant Contractor shall establish such reasonable work rules as they deem appropriate and not inconsistent with this Agreement. These rules will be posted at the work sites by the Contractor and may be amended thereafter as necessary. Failure to observe these rules and regulations by employees may be grounds for discipline up to and including discharge. Section 15.3 Emergency Use of Tools and Equipment There should be no restrictions on the emergency use of any tools by any qualified employee or supervisor, or on the use of any tools or equipment for the performance of work within the jurisdiction, provided the employee can safely use the tools and/or equipment involved and is compliance with applicable governmental rules and regulations. Section 15.4 Access Restrictions for Cars Recognizing the nature of the work being conducted on the site, employee access by a private automobile may be limited to certain roads and/or parking areas. Final Draft Community Workforce Agreement 6.22.1.7 27 City of Santa Ana 75A-324 ARTICLE 16 PRE -JOB CONFERENCES Section 16.1 Each Primary Contractor which is awarded a Construction Contract by the City for Project Work shall conduct a Pre -Job conference with the appropriate affected Union(s) prior to commencing work. All Contractors who have been awarded contracts by the Primary Contractor shall attend the Pre -Job conference. The Trades Council and the CWA Administrator shall be advised in advance of all such conferences and may participate if they wish. All work assignments shall be disclosed by the Primary Contractor and all Contractors at the Pre -Job conference in accordance with industry practice. Should there be any formal jurisdictional dispute raised under Article 8, the CWA Administrator shall be promptly notified. Primary Contractor shall have available at the Pre -Job conference the plans and drawing for the work to be performed on the Project. Should additional Project Work not previously included within the scope of the Project Work be added, the Contractors performing such work will conduct a separate pre -job for such newly included work. ARTICLE 17 LABOR/MANAGEMENT COOPERATION Section 17.1 Joint Committee The Parties to this Agreement may establish a six (6) person Joint Administrative Committee (JAC). This J'AC shall be comprised of three (3) representatives selected by the City and three (3) representatives selected by the Trades Council to monitor compliance with the terms and conditions of this Agreement and to recommend amendments to this Agreement, with the exception of the dollar threshold specified in Section 2.2(a) and the term of this Agreement under Section 22.1, when doing so would be to the mutual benefit of the Parties. Each representative shall designate an alternate who shall serve in his or her absence for any purpose contemplated by this Agreement. A quorum will consist of at least two (2) representatives selected by the City and at least two (2) representatives selected by the Trades Council. For voting purposes, only an equal number of City and Union representatives present may constitute a voting quorum. Section 17.2 Functions of Joint Committee The Committee shall meet on a schedule to be determined by the Committee or at the call of the joint chairs, to discuss the administration of the Agreement, the progress of the Project, general labor management problems that may arise, and any other matters consistent with this Agreement. Substantive grievances or disputes arising under Articles 7, 8 or 10 shall not be reviewed or discussed by this Committee, but shall be processed pursuant to the provisions of the appropriate Article. The CWA Administrator shall be responsible for the scheduling of the meetings, the preparation of the agenda topics for the meetings, with input from the Unions the Contractors and the City. Notice of the date, time and place of meetings, shall be given to the Committee members at least three (3) days prior to the meeting. The CWA Administrator shall prepare quarterly reports on apprentice utilization and the training and employment of City residents, and a schedule of Project Worlc and estimated number of craft workers needed. The Committee or an appropriate subcommittee, may review such reports and malce any recommendations for improvement, if necessary, including increasing Final Draft Community Workforce Agreement 6.22.17 28 City of Santa Ana 75A-325 the availability of skilled trades, and the employment of local residents or other individuals who should be assisted with appropriate training to qualify for apprenticeship programs. ARTICLE 18 SAVINGS AND SEPARABILITY Section 18.1 Savings Clause It is not the intention of the City, the CWA Administrator, Contractor or the Union parties to violate any laws governing the subject matter of this Agreement. The Parties hereto agree that in the event any provision of this Agreement is finally held or determined to be illegal or void as being in contravention of any applicable law or regulation, the remainder of the Agreement shall remain in full force and effect unless the part or parts so found to be void are wholly inseparable from the remaining portions of this Agreement. Further, the Parties agree that if and when any provision(s) of this Agreement is finally held or determined to be illegal or void by a court of competent jurisdiction, the Parties will promptly enter into negotiations concerning the substantive effect of such decision for the purposes of achieving conformity with the requirements of any applicable laws and the intent of the Parties hereto. If the legality of this Agreement is challenged and any form of injunctive relief is granted by any court, suspending temporarily or permanently the implementation of this Agreement, then the Parties agree that all Project Work that would otherwise be covered by this Agreement should be continued to be bid and constructed without application of this Agreement so that there is no delay or interference with the ongoing planning, bidding and construction of any Project Work. Section 18.2 Effect of Injunctions or Other Court Orders The Parties recognize the right of the City to withdraw, at its absolute discretion, the utilization of the Agreement as part of any bid specification should a Court of competent jurisdiction issue any order, or any applicable statute which could result, temporarily or permanently in delay of the bidding, awarding and/or construction on the Project. Notwithstanding such an action by the City, or such court order or statutory provision, the Parties agree that the Agreement shall remain in full force and the fact on covered Project Work to the maximum extent legally possible. ARTICLE 19 WAIVER A waiver of or a failure to assert any provisions of this Agreement by any or all of the Parties hereto shall not constitute a waiver of such provision for the future. Any such waiver shall not constitute a modification of the Agreement or change in the terms and conditions of the Agreement and shall not relieve, excuse or release any of the Parties from any of their rights, duties or obligations hereunder. ARTICLE 20 AMENDMENTS The provisions of this Agreement can be renegotiated, supplemented, rescinded or otherwise altered only by mutual agreement in writing, hereafter signed by the negotiating Parties hereto. Final Draft Community Workforce Agreement 6.22.17 29 City of Santa Ana 75A-326 In the event of any conflict or ambiguity between this Agreement and any Attachment or exhibit, the provisions of this Agreement shall govern. ARTICLE 21 DURATION OF THE AGREEMENT Section 21.1 Duration 21.1.1 This Agreement shall be effective from the date signed by all Parties and shall remain in effect for an initial period of five (5) years. Any covered Project Work awarded during the term of this Agreement shall continue to be covered hereunder, until completion of the Project Work, notwithstanding the expiration date of this Agreement. 21.1.2 This Agreement may be extended by written mutual consent of the City, as directed by the City Council and the signatory Unions for such further periods as the Parties shall agree to. Section 22.2 Turnover and Final Acceptance of Completed Work 22.2.1 Construction of any phase, portion, section, or segment of Project Work shall be deemed complete when such phase, portion, section or segment has been turned over to the City by the Contractor and the City has accepted such phase, portion, section, or segment. As areas and systems of the Project are inspected and construction -tested and/or approved and accepted by the City or third parties with the approval of the City, the Agreement shall have no further force or effect on such items or areas, except when the Contractor is directed by the City to engage and repairs or modifications required by its contract(s) with the City. 22.2.2 Notice of each final acceptance received by the Contractor will be provided to the Trades Council with the description of what portion, segment, etc. has been accepted. Final acceptance may be subject to a "punch" list, and in such case, the Agreement will continue to apply to each such item on the list until it is completed to the satisfaction of the City and Notice of Completion is issued by the City or its representative to the Contractor. At the request of the Union, complete information describing any "punch" list work, as well as any additional work required of a Contractor at the direction of the City pursuant to Section 22.2.1 above, involving otherwise turned -over and completed facilities which have been accepted by the City, will be available from the CWA Administrator. [This section intentionally left blank] Final Draft Community Workforce Agreement 6.22.17 30 City of Santa Ana 75A-327 IN WITNESS whereof the Parties have caused this Community Workforce Agreement to be executed as of the date and year above stated. CITY OF SANTA ANA ATTEST: By�� / Maria D. Huizar Clerk of Council APPROVED AS TO FORM: Ad � k lkW� Sonia R. Carvalho City Attorney LOS ANGELES/ORANGE COUNTIES BUILDING & CONSTRUCTION TRADES COUNCIL By: e . Ron Miller Executive Secretary Final Draft Community Workforce Agreement 6.22.17 31 City of Santa Ana 75A-328 LOS ANGELES/ORANGE COUNTIES BUILDING AND CONSTRUCTION Asbestos Heat & Frost Insulators (Local 5) Boilermakers (Local 92) Bricklayers & Allied Crafiworkers (Local 4) Cement Masons (Local 500) District Council of Laborers Electricians (Local 441) Elevator Constructors (Local 18) Gunite Workers (Local 345) Iron Workers (Reinforced — Local 416) Iron Workers (Structural — Local 433) Laborers (Local 300) (remediation) Laborers (Local 652) Operating Engineers (Local 12) Operating Engineers (Local 12) Operating Engineers (Local 12) Painters & Allied Trades DC 36 Pipe Trades (Local 250) Pipe Trades (Local 345) Pipe Trades (Plumbers/Fitters Local 582) Pipe Trades (Sprinkler Fitters Local 709) Plasterers (Local 200) Plaster Tenders Local (1414) Roofers & Waterproofers (Local 220) Sheet Metal Workers (Local 105) Teamsters (Local 952) Southwest Regional Council of Carpenters `.V-d- /-9 Final Draft Community Workforce Agreement 75-329 6.22.17 City of Santa Ana ATTACHMENT A — LETTER OF ASSENT To be signed by all contractors awarded work covered by the City of Santa Ana Community Workforce Agreement prior to commencing work. [Contractor's Letterhead] CWA Administrator City of Santa Ana 1234 address City, state, zip code Attn: Re: Community Workforce Agreement - Letter of Assent Dear Sir: This is to confirm that [name of company] agrees to be party to and bound by the City of Santa Ana Community Workforce Agreement effective , 2017, as such Agreement may, from time to time, be amended by the negotiating parties or interpreted pursuant to its terms. Such obligation to be a party and bound by this Agreement shall extend to all work covered by the agreement undertaken by this Company on the project and this Company shall require all of its contractors and subcontractors of whatever tier to be similarly bound for all work within the scope of the Agreement by signing and furnishing to you an identical letter of assent prior to their commencement of work. Sincerely. [Name of Construction Company] By: [ ] Name and Title of Authorized Executive Contractor State License No.: [Copies of this letter must be submitted to the CWA Administrator and to the Trades Council Consistent with Section 2.6 (b).] 6/28/2016 Draft PLA 33 City of Santa Ana 75A-330 ATTACHMENT B FIRST TIER ZIP CODES (CITY BOUNDARY) *Some Zip Codes shared with neighboring cities 92701 92702 92703 92704 92705 92706 92707 92711 92712 92725 92735 92799 *92866 *92868 6/28/2016 Draft PLA 34 City of Santa Ana 75A-331 ATTACHMENT B — Continued SECOND TIER ZIP CODES REMAINDER OF ORANGE COUNTY, Zip Code City 90620 Buena Park 90621 Buena Park 90622 Buena Park 90623 La Palma 90624 Buena Park 90630 Cypress 90631 La Habra 90632 La Habra 90633 La Habra 90680 Stanton 90720 Los Alamitos 90721 Los Alamitos 90740 Seal Beach 90742 Sunset Beach 90743 Surfside 92602 Irvine 92603 Irvine 92604 Irvine 92605 Huntington Beach 92606 Irvine 92607 Laguna Niguel 92609 El Toro 92610 Foothill Ranch 92612 Irvine 92614 Irvine 92615 Huntington Beach 92616 Irvine 92617 Irvine 92618 Irvine 92619 Irvine 92620 Irvine 92623 Irvine 92624 Capistrano Beach 92625 Corona Del Mar 92626 Costa Mesa 92627 Costa Mesa 92628 Costa Mesa 6/28/2016 Draft PLA 35 City of Santa Asia 75A-332 92629 Dana Point 92630 Lake Forest 92637 Laguna Woods 92646 Huntington Beach 92647 Huntington Beach 92648 Huntington Beach 92649 Huntington Beach 92650 East Irvine 92651 Laguna Beach 92652 Laguna Beach 92653 Laguna Hills 92654 Laguna Hills 92655 Midway City 92656 Aliso Viejo 92657 Newport Coast 92658 Newport Beach 92659 Newport Beach 92660 Newport Beach 92661 Newport Beach 92662 Newport Beach 92663 Newport Beach 92672 San Clemente 92673 San Clemente 92674 San Clemente 92675 San Juan Capistrano 92676 Silverado 92677 Laguna Niguel 92678 Trabuco Canyon 92679 Trabuco Canyon 92683 Westminster 92684 Westminster 92685 Westminster 92688 Rancho Santa Margarita 92690 Mission Viejo 92691 Mission Viejo 92692 Mission Viejo 92693 San Juan Capistrano 92694 Ladera Ranch 92697 Irvine 92698 Aliso Viejo 92708 Fountain Valley 92709 Irvine 92710 Irvine 92728 Fountain Valley 92780 Tustin 92781 Tustin 6/28/2016 Draft PLA 36 City of Santa Ana 75A-333 92782 Tustin 92801 Anaheim 92802 Anaheim 92803 Anaheim 92804 Anaheim 92805 Anaheim 92806 Anaheim 92807 Anaheim 92808 Anaheim 92809 Anaheim 92811 Atwood 92812 Anaheim 92814 Anaheim 92815 Anaheim 92816 Anaheim 92817 Anaheim 92821 Brea 92822 Brea 92823 Brea 92825 Anaheim 92831 Fullerton 92832 Fullerton 92833 Fullerton 92834 Fullerton 92835 Fullerton 92836 Fullerton 92837 Fullerton 92838 Fullerton 92840 Garden Grove 92841 Garden Grove 92842 Garden Grove 92843 Garden Grove 92844 Garden Grove 92845 Garden Grove 92846 Garden Grove 92850 Anaheim 92856 Orange 92857 Orange 92859 Orange 92861 Villa Park 92862 Orange 92863 Orange 92864 Orange 92865 Orange 92866 Orange 92867 Orange 6/28/2016 Draft PLA 37 City of Santa Ana 75A-334 92868 Orange 92869 Orange 92870 Placentia 92871 Placentia 92885 Yorba Linda 92886 Yorba Linda 92887 Yorba Linda 92899 Anaheim 6/28/2016 Draft PLA 38 City of Santa Ana 75A-335 ATTACHMENT C CITY OF SANTA ANA CRAFT REQUEST FORM TO THE CONTRACTOR: Please complete and fax this form to the applicable union to request craft workers that fulfill the hiring requirements for this project. Mier faxing your request, please call the Local to verify receipt and substantiate their capacity to famish workers as specified below. Please print your Fax Transmission Verification Reports and keep copies for your records. The City of Santa Ana Community Workforce Agreement establishes a goal that 30% of the total work hours shall be from Veterans, regardless of where they reside, and workers residing: first, in those first tier zip codes which overlap all of the City of Santa Ana, as attached hereto, second residing within Orange County, For Dispatch purposes, employees residing within either of these two (2) areas, as well as Veterans, regardless of where they reside, shall be referred to as Local Residents. TO THE UNION: Please complete the "Union Use Only" section on the next page and fax this form back to the requesting Contractor. Be sure to retain a copy of this form for your records. To: Union Local # Cc: CWA Administrator From: Company: CONTRACTOR USE ONLY Fax# Issued By: Contact Phone :( 1 Contact Fax: Date: PLEASE PROVIDE ME WITH THE FOLLOWING UNION CRAFT WORKERS. Local Resident, Number Craft Classification Journeyman Veteran of (i.e., plumber, painter, or or workers Report Date Report Time etc.) Apprentice General Dispatch needed TOTAL WORKERS REQUESTED = Please have worker(s) report to the following work address indicated below: Project Name: Report to: Comment or Special Instructions: Site: On -site Tel: On -site Fax: 6/28/2016 Draft. PLA 39 City of Santa Ana 75A-336 Date dispatch request received: Dispatch received by: Classification of worker requested: Classification of worker dispatched: UNION USE ONLY WORKER REFERRED Name: Date worker was dispatched: Is the worker referred a: (check all that apply) JOURNEYMAN Yes No APPRENTICE Yes No LOCAL RESIDENT Yes No VETERAN Yes No GENERAL DISPATCH FROM OUT OF WORK LIST Yes No 6/28/2016 Draft PLA 40 City of Santa Ana 75A-337 ATTACHMENT D List of Neutral Arbitrators Mark Burstein Walter Daugherty Fred Horowitz Michael Prihar Louis Zigman 6/28/2016 Draft PLA 41 City of Santa Ana 75A-338 ATTACHMENT "E" SUBSTANCE ABUSE POLICY The Parties recognize the problems which drug and alcohol abuse have created in the construction industry and the need to develop drug and alcohol abuse prevention programs. Accordingly, the Parties agree that in order to enhance the safety of the work place and to maintain a drug and alcohol free work environment, individual Employers may require applicants or employees to undergo drug and alcohol testing. 1. It is understood that the use, possession, transfer or sale of illegal drugs, narcotics, or other unlawful substances, as well as being under the influence of alcohol and the possession or consuming alcohol is absolutely prohibited while employees are on the Employer's job premises or while working on any jobsite in connection with work performed under the Community Workforce Agreement ("CWA"). 2. No Employer may implement a drug testing program which does not conform in all respects to the provisions of this Policy. 3. No Employer may implement drug testing at any jobsite unless written notice is given to the Union setting forth the location of the jobsite, a description of the project under construction, and the name and telephone number of the Project Work Supervisor. Said notice shall be addressed to the office of each Union signing the PLA. Said notice shall be delivered in person or by registered mail before the implementation of drug testing. Failure to give such notice shall make any drug testing engaged in by the Employer a violation of the PLA, and the Employer may not implement any form of drug testing at such jobsite for the following six months. 4. An employer who elects to implement drug testing pursuant to this Agreement shall require all employees on the Project Work to be tested. With respect to individuals who become employed on the Project Work subsequent to the proper implementation of this drug testing program, such test shall be administered upon the commencement of employment on the project, whether by referral from a Union Dispatch Office, transfer from another project, or another method. Individuals who were employed on the project prior to the proper implementation of this drug testing program may only be subjected to testing for the reasons set forth in Paragraph 5(f) (1) through 5(f) (3) of this Policy. Refusal to undergo such testing shall be considered sufficient grounds to deny employment on the project. 5. The following procedure shall apply to all drug testing: a. The Employer may request urine samples only. The applicant or employee shall not be observed when the urine specimen is given. An applicant or employee, at his or her sole option, shall, upon request, receive a blood test in lieu of a urine test. No employee of the Employer shall draw blood from a bargaining unit employee, touch or handle urine specimens, or in any way become involved in the chain of custody of urine or blood specimens. A Union Business Representative, subject to the approval of the individual applicant or employee, shall be 6/28/2016 Draft PLA 42 City of Santa Ana 75A-339 permitted to accompany the applicant or employee to the collection facility to observe the collection, bottling, and sealing of the specimen. b. The testing shall be done by a laboratory approved by the Substance Abuse & Mental Health Services Administration (SAMHSA), which is chosen by the Employer and the Union. C. An initial test shall be performed using the Enzyme Multiplied Immunoassay Technique (EMZT). In the event a question or positive result arises from the initial test, a confirmation test must be utilized before action can be taken against the applicant or employee. The confirmation test will be by Gas Chromatography Mass Spectrometry (GC/MS). Cutoff levels for both the initial test and confirmation test will be those established by the SAMHSA. Should these SAMHSA levels be changed during the course of this agreement or new testing procedures are approved, then these new regulations will be deemed as part of this existing agreement. Confirmed positive samples will be retained by the testing laboratory in secured long-term frozen storage for a minimum of one year. Handling and transportation of each sample must be documented through strict chain of custody procedures. d. In the event of a confirmed positive test result the applicant or employee may request, within forty-eight (48) hours, a sample of his/her specimen from the testing laboratory for purposes of a second test to be performed at a second laboratory, designated by the Union and approved by SAMHSA. The retest must be performed within ten (10) days of the request. Chain of custody for this sample shall be maintained by the Employer between the original testing laboratory and the Union's designated laboratory. Retesting shall be performed at the applicant's or employee's expense. In the event of conflicting test results the Employer may require a third test. C. If, as a result of the above testing procedure, it is determined that an applicant or employee has tested positive, this shall be considered sufficient grounds to deny the applicant or employee his/her employment on the Project Work. f. No individual who tests negative for drugs or alcohol pursuant to the above procedure and becomes employed on the Project Won, shall again be subjected to drug testing with the following exceptions: I. Employees who are involved in industrial accidents resulting in damage to plant, property or equipment or injury to him/herself or others may be tested pursuant to the procedures stated hereinabove. 2. The Employer may test employees following thirty (30) days advance written notice to the employee(s) to be tested and to the applicable Union. Notice to the applicable Union shall be as set forth in Paragraph 3 above and such testing shall be pursuant to the procedures stated hereinabove. 3. The Employer may test an employee where the Employer has reasonable cause to believe that the employee is impaired from performing his/her job. 6/28/2016 Draft PLA 43 City of Santa Ana 75A-340 Reasonable cause shall be defined as exhibiting aberrant or unusual behavior, the type of which is a recognized and accepted symptom of impairment (i.e., slurred speech, unusual lack of muscular coordination, etc.). Such behavior must be actually observed by at least two persons, one of whom shall be a Supervisor who has been trained to recognize the symptoms of drug abuse or impairment and the other of whom shall be the job steward. If the job steward is unavailable or there is no job steward on the project the other person shall be a member of the applicable Union's bargaining unit. Testing shall be pursuant to the procedures stated hereinabove. Employees who are tested pursuant to the exceptions set forth in this paragraph and who test positive will be removed from the Employer's payroll. g. Applicants or employees who do not test positive shall be paid for all time lost while undergoing drug testing. Payment shall be at the applicable wage and benefit rates set forth in the applicable Union's Master Labor Agreement. Applicants who have been dispatched from the Union and who are not put to work pending the results of a test will be paid waiting time until such time as they are put to work. It is understood that an applicant must pass the test as a condition of employment. Applicants who are put to work pending the results of a test will be considered probationary employees. 6. The employers will be allowed to conduct periodic job site drug testing on the Project under the following conditions: a. The entire jobsite must be tested, including any employee or subcontractor's employee who worked on that project three (3) working days before or after the date of the test; b. Jobsite testing cannot commence sooner than thirty (30) days after start of the work on the Project; C. Prior to start of periodic testing, a business representative will be allowed to conduct an educational period on company time to explain periodic jobsite testing program to affected employees; d. Testing shall be conducted by a SAMHSA certified laboratory, pursuant to the provisions set forth in Paragraph 5 hereinabove. e. Only two periodic tests may be performed in a twelve month period. 7. It is understood that the unsafe use of prescribed medication, or where the use of prescribed medication impairs the employee's ability to perform work, is a basis for the Employer to remove the employee from the jobsite. 8. Any grievance or dispute which may arise out of the application of this Agreement shall be subject to the grievance and arbitration procedures set forth in the PLA. 9. The establishment or operation of this Policy shall not curtail any right of any employee found in any law, rule or regulation. Should any part of this Agreement be found 6/28/2016 Draft PLA 44 City of Santa Ana 75A-341 unlawful by a court of competent jurisdiction or a public agency having jurisdiction over the parties, the remaining portions of the Agreement shall be unaffected and the parties shall enter negotiations to replace the affected provision. 10. Present employees, if tested positive, shall have the prerogative for rehabilitation program at the employee's expense. When such program has been successfully completed the Employer shall not discriminate in any way against the employee. If work for which the employee is qualified exists he/she shall be reinstated. 11. The Employer agrees that results of urine and blood tests performed hereunder will be considered medical records held confidential to the extent permitted or required by law. Such records shall not be released to any persons or entities other than designated Employer representatives and the applicable Union. Such release to the applicable Union shall only be allowed upon the signing of a written release and the information contained therein shall not be used to discourage the employment of the individual applicant or employee on any subsequent occasion. 12. The Employer shall indemnify and hold the Union harmless against any and all claims, demands, suits, or liabilities that may arise out of the application of this Agreement and/or any program permitted hereunder. 13. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking such assistance. Requests from employees for such assistance shall remain confidential and shall not be revealed to other employees or management personnel without the employee's consent. Employees enrolled in substance abuse programs shall be subject to all Employer rules, regulations and job performance standards with the understanding that an employee enrolled in such a program is receiving treatment for an illness. 14. This Memorandum, of Understanding shall constitute the only Agreement in effect between the parties concerning drug and alcohol abuse, prevention and testing. Any modifications thereto must be accomplished pursuant to collective bargaining negotiations between the parties. 6/28/2016 Draft PLA 45 City of Santa Ana 75A-342 DRUG Alcohol Amphetamines Barbiturates Benzodiazepines Cocaine Methadone Methaqualone Opiates PCP (Phencyclidine) THC (Marijuana) Propoxyphene DRUG ABUSE PREVENTION AND DETECTION APPENDIX A CUTOFF LEVELS SCREENING SCREENING CONFIRMATION CONFIRMATION METHOD LEVEL** METHOD LEVEL EMIT . 0.02% CG/MS 0.02% EMIT 1000 ng/m* CG/MS 500 ng/ml* EMIT 300 ng/ml CG/MS 200 ng/ml EMIT 300 ng/ml CG/MS 300 ng/ml EMIT 300 ng/ml* CG/MS 150 ng/ml* EMIT 300 ng/ml CG/MS 100 ng/ml EMIT 300 ng/ml CG/MS 300 ng/ml EMIT 2000 ng/ml* CG/MS 2000 ng/ml* EMIT 25 ng/ml* CG/MS 25 ng/ml* EMIT 50 ng/ml* CG/MS 15 ng/ml* EMIT 300 ng/ml CG/MS 100 ng/ml * SAMHSA specified threshold ** A sample reported positive contains the Indicated drug at or above the cutoff level for that drug. A negative sample either contains no drug or contains a drug below the cutoff level. EMIT - Enzyme Immunoassay CC/MS - Gas Chromatography/Mass Spectrometry 6/28/2016 Draft PLA 46 City of Santa Ana 75A-343 SIDE LETTER OF AGREEMENT TESTING POLICY FOR DRUG ABUSE It is hereby agreed between the parties hereto that an Employer who has otherwise properly implemented drug testing, as set forth in the Testing Policy for Drug Abuse, shall have the right to offer an applicant or employee a "quick" drug screening test. This "quick" screen test shall consist either of the "ICUP" urine screen or similar test or an oral screen test. The applicant or employee shall have the absolute right to select either of the two "quick" screen tests, or to reject both and request a full drug test. An applicant or employee who selects one of the quick screen tests, and who passes the test, shall be put to work immediately. An applicant or employee who fails the "quick" screen test, or who rejects the quick screen tests, shall be tested pursuant to the procedures set forth in the Testing Policy for Drug Abuse. The sample used for the "quick" screen test shall be discarded immediately upon conclusion of the test. An applicant or employee shall not be deprived of any rights granted to them by the Testing Policy for Drug Abuse as a result of any occurrence related to the "quick" screen test. 6/28/2016 Draft PLA 47 City of Santa Ana 75A-344 EXHIBIT "I" TO DISPOSITION AND DEVELOPMENT AGREEMENT HOTEL OPERATING AGREEMENT Exlvbit `2" (Hotel Operating Agreement) 55 394.00049\3323920112 75A-345 RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: THE CITY OF SANTA ANA 20 CIVIC CENTER PLAZA, M-30 SANTA ANA, CA 92701 ATTENTION: CITY CLERK EXEMPT FROM FILING FEE PER GOVERNMENT CODE SECTION 27383 (Space Above This Line for Recorder's Office Use Only) OPERATIONS COVENANT THIS OPERATIONS COVENANT AND DECLARATION OF COVENANTS AND RESTRICTIONS ("Covenant") is made and entered into this day of , 2020, by and between the CITY OF SANTA ANA, a charter city and municipal corporation organized under the Constitution and the laws of the State of California ("City"), and Caribou Industries, Inc. a Nevada Corporation (the `Developer"). RECITALS: A. The City of Santa Ana owns the property located at 201 W. 3rd Street in the City of Santa Ana, more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Site") and utilized the property as a public parking lot. B. Developer desires to remove an existing three (3) story parking structure to construct a Mixed Use Project including apartments, commercial (including retail and food/beverage establishments), a seventy-five (75) room Hotel Project and a Parking Structure which will contain 444 total parking spaces including 211 public parking spaces, as described in the defmitions of "Project," "Mixed Use," "Hotel Project," "Public Parking Parcel" and "Parking Structure" as set forth in ARTICLE 3 of the Disposition and Development Agreement ("DDA") entered into by and between the City and Developer dated October 5, 2020 for reference purposes only. C. City and Developer have entered into a DDA for the conveyance of the Site to allow for the Construction of the Project including the Mixed Use, Hotel and Parking Structure. D. City and Developer now desire to place restrictions upon the use and operation of the Project, in order to ensure that the Project shall be operated continuously as a hotel available for short-term rental for the term of this Covenant, to run with the land of the Property and bind successive owners of the Property as set forth in this Covenant. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer hereby agree as follows:. Page 1 of 55 394.00049\33266069.5 75A-346 1. The recitals are true and correct and are incorporated into this Covenant in their entirety by this reference. 2. Definitions. All initially capitalized terms used in the Covenant shall have the same meaning as the Terms in the DDA 3. Use of Land — The Developer covenants and agrees with the City that the Site must only be built on and used in strict accordance with this Covenant. 4. Covenant to Build Hotel — The Developer agrees to timely construct the Hotel in strict compliance with this Covenant and in accordance with all development entitlements issued for this Project by City. Developer agrees that Developer will design and build the hotel to Automobile Association of America (AAA) minimum acceptable conditions to be considered a AAA hotel with the amenities set forth in Section 6.3 below. 5. Restriction on Use of Land — The use of the Land must include a hotel, having a minimum of 75 Guest Rooms and providing facilities set forth in Section 6.5 (the "Hotel"). Without limiting the foregoing, the Land and the Development thereon may be used for additional residential or office use, in addition to the required Hotel use, as part of a mixed -use development. 6. Covenant to Operate Hotel 6.1 Developer will use commercially reasonable efforts to execute an operating agreement with a nationwide hotel chain. 6.2 Should Developer be unsuccessful in securing an operating agreement with a nationwide hotel chain, then Developer will self -operate a Hotel. 6.3 Hotel shall contain the following minimum amenities: (a) Fitness Room (b) Community Meeting Space (c) Baggage Storage (d) Elevators (e) 24 hour Pantry Market (f) Multi -Lingual Staff (g) Safety Deposit Box (h) ATM. 6.4 After construction of the Hotel, the Developer shall operate the Hotel or cause the Hotel to be operated such that its Guest Rooms are used only for Public Lodging Use and for no other purpose, and the Developer shall take or cause to be taken all reasonable commercial steps Page 2 of 7 55 394.00049\33266069.5 75A-347 to keep the Hotel open for business, except in the case of substantial damage or destruction by natural hazard, by fire, or by other insurable hazard. 7. Conversion to Residential. 7.1 Developer shall not submit an application to City to convert the hotel to apartments unless the following threshold has are satisfied: (a) The Developer shall only be entitled to submit an application to City to convert the hotel to apartments if the following thresholds are established. (b) On the Third Hotel Anniversary Date (defined as three calendar years following the date that the Hotel had the first guest completed the first overnight stay for compensation in the Hotel), if for the period between the Second Hotel Anniversary Date through the day before the Third Hotel Anniversary the RevPAR falls below $1255.00. (Revenue per available room (RevPAR) is a hotel industry performance metric, and is calculated by dividing the total room revenue for the hotel by the total number of available rooms in the period being measured) (c) On the Fourth Hotel Anniversary Date, if for the period between the Third Hotel Anniversary Date through the day before the Fourth Hotel Anniversary the RevPAR falls below $125.00. (d) On the Fifth Hotel Anniversary Date if for the period between the Fourth Hotel Anniversary Date through the day before the Fifth Hotel Anniversary the RevPAR falls below $125.00. (e) On the Sixth Hotel Anniversary Date if for the period between The Fifth Hotel Anniversary Date through the day before the Sixth Hotel Anniversary the RevPAR falls below $125.00. 7.2 Any application for conversion shall be subject to approval of all applicable City entitlements. Developer understand and acknowledges that, in the context of processing the application to convert the hotel to apartments, the City cannot guarantee the ultimate outcome of any public hearings before the Planning Commission or the City Council or other public bodies of the City, nor prevent any opposition thereto by members of the public or other agencies affected by or interested in the Project. By entering into this Agreement, the City does not pre - commit or imply that the application to convert the hotel to apartments to be considered for approval will be approved. The City retains the discretion to approve, conditionally approve, or disapprove the application to convert the hotel to apartments. 8. Indemnification. 8.1 Developer Indemnity Obligations. Developer shall defend, with Counsel approved by the City, and Indemnify City Parties against any and all Claims to the extent such Claims arise from any wrongful intentional act or negligence of Developer Parties. 8.2 Independent of Insurance Obligations. Developer's indemnification obligations under this Covenant shall not be construed or interpreted as in any way being restricted, limited or modified by any insurance coverage carried by Developer. Page 3 of 7 55 394.00049\33266069.5 75A-348 8.3 Survival of Indemnification and Defense Obligations. The indemnity and defense obligations of Developer under this Covenant shall survive the expiration or earlier termination of this Covenant, until any and all actual or prospective Claims regarding any matter subject to an indemnity obligation under this Covenant are fully, finally, absolutely and completely barred by applicable statutes of limitations. 9. Governing Law. The substantive and procedural laws of the State shall govern the interpretation and enforcement of this Covenant, without application of conflicts or choice of laws, statutes or principles. 10. Notices. 10.1 Notices. Any and all Notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the principal office of the City or the Developer, as applicable, set forth in Section 10.2, by one or more of the following methods: (i) messenger for immediate Personal delivery, (ii) a nationally recognized overnight (one-night) delivery service (i.e., Federal Express, United Parcel Service, etc.) or (iii) registered or certified United States Mail, postage prepaid, return receipt requested. Such Notices may be sent in the same manner to such other addresses as either Party may designate from time to time, by Notice. Any Notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after it is deposited with the United States Postal Service for delivery, as provided in this Section 10 Rejection, other refusal to accept or the inability to deliver a Notice because of a changed address of which no Notice was given or other action by a Person to whom Notice is sent, shall be deemed receipt of the Notice. 10.2 Addresses. The following are the authorized addresses for the submission of Notices to the Parties: To the Developer: Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 To the City: City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Attention: City Clerk With courtesy copy to City of Santa Ana Page 4 of 7 55 394.00049\33266069.5 75A-349 20 Civic Center Plaza (M-29) P.O. Box 1988 Attention: City Attorney 11. Jurisdiction and Venue. The Parties each acknowledge and agree that this Covenant is entered into and is to be fully performed in the City of Santa Ana, Orange County, State of California, and that all legal actions arising from this Covenant shall be filed in the Superior Court of the State of California in and for Orange County, California, or the United States District Court with jurisdiction in Orange County, California. 12. Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Covenant. The Parties have both participated substantially in the negotiation, drafting, and revision of this Covenant, with advice from legal counsel and other advisers of their own selection. A term defined in the singular in this Covenant may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which also govern all other language in this Covenant. The words "include" and `including" shall be construed to be followed by the words: "without limitation." Each collective noun shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Covenant, refers to such document as modified from time to time (excepting any modification that violates this Covenant), and includes all exhibits, schedules, addenda and riders to such document. The word "or" includes the word "and." Every reference in this Covenant to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 13. Counterpart Originals: Integration. This Covenant may be signed in multiple counterpart originals, each of which is deemed to be an original, but all of which taken together shall constitute one and the same instrument. This Covenant, the exhibits attached to this Covenant and the documents (including maps) referenced in this Covenant represent the entire understanding of the Parties and supersede all previous negotiations, letters of intent, memoranda of understanding or agreements between the Parties with respect to all or any part of the subject matter of this Covenant. 14. Severability. If any term or provision of this Covenant or its application to any Person or circumstance shall to any extent be invalid or unenforceable, then the remainder of this Covenant or the application of such term or provision to Persons or circumstances, except those as to which it is invalid or unenforceable, shall not be affected by such invalidity. All remaining provisions of this Covenant shall be valid and be enforced to the fullest extent Law allows. 15. No Waiver. Failure to insist on any one occasion upon strict compliance with any of the terms, covenants, conditions, restrictions or agreements contained in this Covenant shall not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Covenant at any one time or more times be deemed a waiver or relinquishment of such right or power at any other time or times. 16. Time is of the Essence. Time is of the essence in the performance of the Parties' obligations under this Covenant. Page 5 of 7 55 394.00049\33266069.5 75A-350 17. No Third Party Beneficiaries. The performance of the Parties' respective obligations under this Covenant are not intended to benefit any Person other than City and Developer, except as may be expressly provided otherwise in this Covenant. No Person not a signatory to this Covenant shall have any rights or causes of action against any Party to this Covenant as a result of that Parry's performance or non-performance under this Covenant, except as otherwise expressly provided in this Covenant. 18. Relationship of Parties. The Parties agree and intend that City and Developer are independent contracting entities and do not intend by this Covenant to create any partnership, joint venture, or similar business arrangement, relationship or association between them. 19. Survival of Covenant. All of the provisions of this Covenant shall be applicable to any dispute between the Parties arising from this Covenant, whether prior to or following expiration or termination of this Covenant, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non -appealable judgment or expiration of all applicable limitations periods and all terms and conditions of this Covenant relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Covenant. 20. No Waiver. Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, or condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. [Signatures on the following page] Page 6 of 7 55 394.00049\33266069.5 75A-351 SIGNATURE PAGE TO OPERATIONS COVENANT (CARIBOU INDUSTRIES, INC.) IN WITNESS WHEREOF, the City and the Developer have executed this 201 Operations Covenant (Caribou Industries, Inc.) by and through the signatures of their duly authorized representative(s) set forth below: CITY OF SANTA ANA: DEVELOPER: Un Attest: City Clerk k-".o / 1 -- -$ wki m City Attorney Its: Page 7 of 7 55394.00049\33266069.5 75A-352 EXHIBIT "A" TO OPERATIONS COVENANT PROPERTY LEGAL DESCRIPTION All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82-17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of Official Records of Orange County, California, bounded Southerly by the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and L.J. Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. 75A-353 EXHIBIT "J" TO DISPOSITION AND DEVELOPMENT AGREEMENT OPTION TO PURCHASE AGREEMENT Exhibit "J" (Option to Purchase Agreement) 55 394.00049\33239203. 12 75A-354 PURCHASE OPTION AGREEMENT THIS PURCHASE OPTION AGREEMENT (this "Agreement'), made as of 2020 (the "Effective Date"), by and between the City of Santa Ana, a public body, corporate and politic ("Optionor"), and Caribou Industries, Inc. a Nevada Corporation ("Optionee"). As used herein, Optionee and Optionor may be referred to collectively as the "Parties", and each individually as a "Party." RECITALS A. Optionor is the fee simple owner of that certain land consisting of 201 West 3rd Street, Santa Ana, California 92701, and as more particularly described in Exhibit A attached to this Agreement and incorporated into this Agreement in its entirety by this reference (the "Land"). Optionor is the fee simple owner of that certain parcel consisting of 211 parking spaces within the parking structure located on Land, and more particularly described in Exhibit B attached to this Agreement and incorporated into this Agreement in its entirety by this reference (the "Parcel") B. Optionee has proposed the development of the Property with a Mixed Use Project including apartments, commercial (including retail and food/beverage establishments), a seventy-five (75) room Hotel Project and a Parking Structure which will contain 444 total parking spaces including 211 public parking spaces, (the "Project"). C. The Parties entered into that certain Disposition and Development Agreement, dated October 5, 2020 for references purposes, regarding the Project. D. Optionor is commencing work on the Project which will be completed on or before September 30, 2024 if the Escrow Closing Date is on or before September 30, 2022. If Developer was granted an extension of the Escrow Closing Date by the City Manager pursuant to Section 2.1.40 of the Disposition and Development Agreement then the Project Completion Date shall be September 30, 2025. E. The development of the Project on the Land will be of benefit to Optionor and community by reducing blight, increasing the economic viability of the community, and providing needed public parking to the residents of Santa Ana, California. F. Optionee desires to acquire and Optionor desires to grant to Optionee the sole and exclusive right to purchase, without being obligated to purchase, the Parcel (as defined below), subject to the terms of this Agreement. AGREEMENT NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Incorporation of Recitals. The recitals of fact set forth above are true and correct and are incorporated into this Agreement in their entirety by this reference. 2. Grant of Option. Upon issuance of the last Certificate of Occupancy or Notice of Completion for the Project, Optionor grants to Optionee the sole and exclusive right to purchase, upon the terms and conditions set forth in this Agreement (the "Option"), (a) the Parcel, together with all improvements ("Improvements"), as such improvements may be altered in connection 75A- 55 with the Parking Structure. located thereon (collectively, the "Real Property"); (b) all of Optionor's right, title and interest in all tangible personal property owned by Optionor located upon, attached to, or necessary for the operation of the Real Property (collectively, the "Tangible Personal Property"), to the extent the delivery of such Tangible Personal Property is accepted, in writing by Optionee; and (c) all of Optionor's right, title and interest in all intangible personal property related to the Real Property and the Improvements (collectively, the "Intangible Personal Property") to the extent the delivery of such, Intangible Personal Property is accepted, in writing by Optionee. 3. Option Period; Exercise of Option; Conditions Precedent. The Option shall commence on the date of issuance of the last Certificate of Occupancy or Notice of Completion for the Project and will remain in effect until 11:59 p.m., Los Angeles time, on the date that is forty-five (45) years following date of issuance of the last Certificate of Occupancy or Notice of Completion for the Project (the "Option Period"). Optionee may exercise the Option during the Option Period by delivering to Optionor an executed instrument substantially in the form attached to this Agreement and incorporated herein by reference as Exhibit C ("Option Exercise Notice"). 4. Purchase Price; Terms of Purchase. The purchase of the Parcel pursuant to the Option will be consummated pursuant to a commercially reasonable agreement in a form reasonably acceptable to Optionee and Optionor (the "Purchase and Sale Agreement") which Purchase and Sale Agreement shall contain the Optionee's commitment to operate the parking structure on the Parcel with 211 public parking spaces consistent with the Project, the Development Plan, and those development covenants, operating covenants and associated restrictions agreed to by the Parties therein and shall contain a covenant that the public parking spaces shall be maintained in perpetuity and said covenant shall be recorded prior to the City's transfer of the Parcel. The purchase price ("Purchase Price") for the Parcel shall be: 4.1. For the first fifteen years (15) from the issuance of last Certificate of Occupancy or Notice of Completion for the Project, the Developer shall have the option to purchase the City Parcel within the Parking Structure for Fifteen Million Dollars ($15,000,000). 4.2. After fifteen (15) years from the issuance of last Certificate of Occupancy or Notice of Completion for the Project until forty-five (45) years have elapsed, Developer shall have the option to purchase the City's Parcel within the Parking Structure for the appraised value or Fifteen Million Dollars ($15,000,000) whichever is greater. 4.2.1. Sixty (60) days prior to any exercise of the option pursuant to Section 4.2 by Optionee, upon notice by Optionee thereof to Optionor (i) the Parties shall nominate and appoint a single appraiser, or, failing that, (ii) the Optionee and Optionor shall each nominate and appoint one appraiser. If two appraisers are appointed as provided in clause (ii) above, the two appraisers so appointed shall, within fifteen (15) days after the appointment of the second appraiser and before exchanging views as to the questions at issue, appoint a third appraiser and give written notice of such appointment to the Parties. In the event that a Party fails to appoint an appraiser within the twenty two (22) day period specified above, then the appraiser appointed by the other Party shall make the appraisal. If the two appraisers selected by the Parties shall fail to appoint or agree upon the third appraiser within the fifteen (15) day period specified above, then a third appraiser 75A-356 may be selected by the Parties if they can agree upon such third appraiser within a further period of ten (10) additional days; otherwise, any Party may apply to any federal or state court of or sitting in the State of California having jurisdiction for the appointment of any appraiser not appointed or agreed upon within the time periods herein provided. The appraisers selected pursuant hereto shall be sworn faithfully and fairly to determine expeditiously the fair market value. The three appraisers (or the one or two appraisers, if only one or two appraisers are appointed) shall, with all possible speed, make the appraisal contemplated herein, set forth their (or its) results in writing, and give notice of the same to the Parties. If two of the three appraisers shall render a concurring determination, then that concurring determination shall be conclusive and binding on the Parties. If no two of the three appraisers shall render a concurring determination, then the determination of the third appraiser appointed by the two appraisers appointed by the Parties shall be conclusive and binding upon the Parties; except that if the determination of the third appraiser shall be lower than the lowest determination of the other two appraisers, or higher than the highest determination of the other two appraisers, the final determination shall be the median determination of the three appraisers. 4.2.2. Each Party shall pay the fees and expenses of the appraiser selected by or on behalf of it and the fees and expenses of the third appraiser, and any general expenses incurred by the appraisers in connection with the appraisal, shall be borne equally between the Parties. 4.2.3. Any appraiser appointed hereunder shall be an appraiser with at least five (5) years' experience in appraising property of the same type as the Property. 5. Due Diligence; Inspections. 5.1. Within ten (10) days following the Effective Date, and from time to time thereafter upon receipt of the same, Optionor shall provide or make available to Optionee copies of all existing documents, agreements, contracts, leases, reports, studies, drawings and/or plans relating to the operations and physical condition of the Parcel in Optionor's possession, including without limitation engineering studies, surveys, energy reports, soils reports, geotechnical reports, traffic studies, leases, governmental correspondence, environmental reports, planning consultant reports, and plans and specifications (the "Due Diligence Materials"). 5.2. Optionor hereby grants Optionee and its agents, consultants, contractors, subcontractors, employees, representatives, and attorneys (collectively, "Optionee's Agents") a license and permission to enter upon, over, under and/or across the Parcel in order to conduct visual inspections, physical testing, air samplings, borings, and other samplings, including but not limited to, observing and documenting the Parcel's as -built conditions, exposing and documenting hidden conditions at the Parcel, by limited removal of interior non -historic fixtures and finishes, performing certain non-destructive testing of materials at the Parcel, extracting concrete core samples in interior non -historically sensitive locations, in connection with the proposed rehabilitation and reuse of the Parcel (the "Inspections"). The Inspections shall be completed at Optionee's sole cost and expense. Optionee or Optionee's Agent shall contact Optionor within one (1) day prior to the time of actual entry onto the Parcel and provide notice of 75A' 357 the date and time when entry will be made. Optionor shall make the Parcel available as soon as reasonably practical thereafter. The license and permission to enter upon, over, under and/or across the Parcel shall commence on the Effective Date and shall expire upon termination of this Agreement. 5.3. Prior to entry onto the Parcel, Optionee shall secure, and shall require its contractors, if any, to secure an insurance policy or policies, as described below. 5.3.1. Notwithstanding any inconsistent statement in the insurance policy or any subsequent endorsement attached thereto, the protection afforded by these policies shall be written on an occurrence basis in which Optionor, and its respective elected and appointed officials, officers, employees, agents and representatives (together, "Additional Insureds") are named as additional insureds on all coverage, except for workers' compensation coverage, and shall (on or prior to the Effective Date, Optionee shall provide to Optionee the complete legal names of all Additional Insureds): (a) Name Additional Insureds as additional insureds on a Commercial General Liability policy; (b) Provide a combined single limit of broad form commercial general liability insurance in the amount of Two Million Dollars ($2,000,000) per occurrence, which will be considered equivalent to the required minimum limits, and such insurance shall (i) be written on an occurrence form, (ii) be written with a primary policy form with limits of not less than $1,000,000 per occurrence; (iii) be written with one or more excess layers to bring the total of primary and excess coverage limits to not less than $2,000,000 per occurrence, (iv) not be written with a deductible greater than $25,000 per occurrence, (v) contain a waiver of subrogation in favor of Optionor; (c) Provide automobile liability insurance for owned, non -owned, and hired vehicles, as applicable to, or for any use related to, the Work, in an amount not less than One Million Dollars ($1,000,000) combined single limit, with excess insurance coverage to bring the total amount of automobile liability insurance coverage to an amount not less than Two Million Dollars ($2,000,000) per accident for bodily injury and property damage; 5.3.2. Optionee shall notify Optionor not less than thirty (30) days before any expiration, cancellation, or non -renewal of such policy or policies; and 5.3.3. Optionee shall furnish certificates of insurance and endorsements to Optionor prior to entry onto the Parcel pursuant to this Section. 5.3.4. Optionee shall comply with Sections 3700 and 3800 of the Labor Code by securing, paying for and maintaining in full force and effect during the Term, and continuing prior to entry onto the Parcel pursuant to this Section, with the earlier to occur of expiration of the Term complete workers' compensation insurance, to statutory limits, with employer's liability limits not less than One Million Dollars ($1,000,000) per occurrence, and shall furnish a Certificate of Insurance to Optionor prior to entry onto the Parcel pursuant to this Section, before the commencement of Work. All Additional Insureds shall not be responsible for any 75A- 358 claims in law or equity occasioned by the failure of Optionee to comply with this section. Every workers' compensation insurance policy shall bear an endorsement or shall have attached a rider providing that, in the event of expiration or proposed cancellation of such policy for any reason whatsoever, Optionor shall be notified, giving Optionee a sufficient time to comply with applicable law, but in no event less than thirty (30) days before such expiration, cancellation, or reduction in coverage is effective or in the event of nonpayment of premium. 5.3.5. Should any of the required insurance coverage required be written with an annual aggregate such aggregate shall be disclosed in writing to Optionor. 5.3.6. If Optionee fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish Optionor with required proof that insurance has been procured and is in force and paid for, Optionor shall have the right, at its election, to forthwith terminate this the right of entry provided in this Section. 5.3.7. Notwithstanding any requirements contained in this Section, Optionee shall have the right to satisfy its insurance obligations under this Agreement by means of self-insurance. Self-insurance shall mean that Optionee itself is acting as though it were the third -party insurer providing the insurance required under the provisions of this Agreement, and Optionee shall pay any amounts due in lieu of insurance proceeds because of self-insurance, which amounts shall be treated as insurance proceeds for all purposes under this Agreement. To the extent Optionee chooses to provide any required insurance by self-insurance, the protection afforded Optionor and the applicable properties shall be the same as if provided by a third -party insurer under the coverages required by this Agreement. In the event that Optionee elects to self -insure and an event or claim occurs for which a defense and/or coverage would have been available from a third -party insurer, Optionee shall undertake the defense of any such claim, including a defense of Optionor, at Optionee's sole cost and expense to pay any claim or replace any property or otherwise provide the landing that would have been available from insurance proceeds. 5.4. Optionee shall not permit any mechanics', materialmen's or other liens of any kind or nature ("Liens") to be filed or enforced against the Parcel. Optionor reserves the right, at its sole cost and expense, at any time and from time to time, to post and maintain on the Parcel, or any portion thereof, or on the improvements on the Parcel, any notices of non -responsibility or other notice as may be desirable to protect Optionor against liability. In addition to, and not as a limitation of Optionor's other rights and remedies under this Section, should Optionee fail, within thirty (30) days of written request from Optionor, either to discharge any Lien (to the extent such Lien is prohibited pursuant to this Section) or to bond for any Lien (to the extent such Lien is prohibited pursuant to this Section), or to defend, indemnify, and hold harmless Optionor from and against any loss, damage, injury, liability or claim arising out of a Lien (to the extent such Lien is prohibited pursuant to this Section), then Optionor, at its option, may elect to pay such Lien, or settle or discharge such Lien and any action or judgment related thereto and all costs, expenses and attorneys' fees incurred in doing so shall be paid to Optionor, as applicable, by Optionee upon written demand. 75A-359 6. Compliance: Parcel Maintenance and Operation. From the Effective Date, Optionor agrees to act in respect of the Parcel in the following manner: 6.1. Optionor agrees that it will not enter into any leases, licenses or other occupancy permits for the Parcel without the prior written consent of Optionee in each instance, which consent shall not be unreasonable withheld, conditioned or delayed. 6.2. Optionor will timely perform its obligations under any service contracts affecting the Parcel in accordance with the terms and conditions contained therein. Optionor agrees that it will not enter into amend or terminate any service contracts affecting the Parcel without the prior written consent of Optionee in each instance, which consent shall not be unreasonable withheld, conditioned or delayed. 6.3. Optionor will not enter into any contract or agreement that will be an obligation affecting the Parcel except for contracts entered into in the ordinary course of business that are terminable without cause and without payment of a fee or penalty on not more than thirty (30) days' notice. 6.4. Optionor will continue to operate and maintain the Parcel in accordance with past practices and, will not make any material alterations or changes thereto. Optionor will not remove any Tangible Personal Property except as may be required for necessary repair or replacement, and replacement shall be of approximately equal quality and quantity as the removed item of Tangible Personal Property. 6.5. Optionor shall not do anything, nor authorize anything to be done, which would adversely affect the condition of title of the Parcel. 7. Optionor's Representations and Warranties. Optionor hereby represents and warrants to Optionee that, as of the Effective Date: 7.1. Optionor is a municipal corporation incorporated within and existing pursuant to the laws of the State of California. 7.2. Optionor has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement) all requisite power and authority required to enter into this Agreement and the instruments referenced in this Agreement, to consummate the transaction contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its obligations hereunder and thereunder. 7.3. Optionor has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement) all required consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement to which Optionor is or shall be a party and the consummation of the transactions contemplated hereby. 7.4. The individual executing this Agreement and the individual that will execute the instruments referenced in this Agreement on behalf of Optionor have, or will have upon execution thereof, the legal power, right and actual authority to bind Optionor to the terms and conditions hereof and thereof. 7.5. This Agreement is duly authorized, executed and delivered by Optionor and all documents required in this Agreement to be executed by Optionor pursuant to this Agreement 75AG 360 shall be, at such time as they are required to be executed by Optionor, duly authorized, executed and delivered by Optionor and are or shall be, at such time as the same are required to be executed hereunder, valid, legally binding obligations of and enforceable against Optionor in accordance with their terms, except as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors' rights. 7.6. Neither the execution or delivery of this Agreement or the documents referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement, and the certificates, declarations and other documents referenced in this Agreement, nor the consummation of the transactions in this Agreement contemplated, nor compliance with the terms of this Agreement and the documents referenced in this Agreement, will violate any provision of law, any order of any court or governmental authority or conflict with or result in the breach of any terms, conditions, or provisions of, or constitute a default under any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which Optionor is a party or which affect any of the Parcel or the transactions contemplated by this Agreement. 7.7. Other than as disclosed by Optionor to Optionee in writing, there are no legal proceedings either pending or, to the knowledge of the Optionor Representatives, threatened, to which Optionor is or may be made a party, or to which the Parcel, is or may become subject or which could reasonably affect the ability of Optionor to carry out its obligations hereunder or which would affect the Parcel. 7.8. Optionor holds, and can cause the conveyance of, fee title to the Parcel. The transfer of the Parcel is not subject to any right of first refusal or similar purchase or other options. 7.9. There are no brokerage fee, commission, or finders' fee is payable to any person or entity in connection with the transaction contemplated by this Agreement ("Commissions"). Optionor shall promptly advise Optionee in writing if Optionor becomes aware that any representation or warranty made by Optionor is or becomes untrue in any material respect prior to any Close of Escrow. Optionors' representations and warranties set forth in this Section shall be deemed to be restated at consummation of any purchase contemplated in this Agreement and shall survive any such purchase and shall not be merged with any deed. 8. Optionee's Representations and Warranties. Optionee hereby represents and warrants to Optionor that, as of the Effective Date: 8.1. Optionee has all requisite corporate power and authority to execute and deliver, and to perform all its obligations under, this Agreement. Optionee is duly organized, validly existing and in good standing under the laws of the state of its formation, with full power to enter into this Agreement. 8.2. Optionee has (or will have prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement) all requisite power and authority required to enter into this Agreement and the instruments referenced in this Agreement, to consummate the transaction contemplated hereby and to take any steps contemplated thereby or hereby, and to perform its obligations hereunder and thereunder. 75A_ 361 8.3. Optionee has obtained (or will have obtained prior to the date by which a particular step is required to be taken or performance of a particular obligation is required to be commenced pursuant to this Agreement) all required consents in connection with entering into this Agreement and the instruments and documents referenced in this Agreement to which Optionee is or shall be a parry and the consummation of the transactions contemplated hereby. 8.4. The individual executing this Agreement and the individual that will execute the instruments referenced in this Agreement on behalf of Optionee have, or will have upon execution thereof, the legal power, right and actual authority to bind Optionee to the terms and conditions hereof and thereof. 8.5. This Agreement is duly authorized, executed and delivered by Optionee and all documents required in this Agreement to be executed by Optionee pursuant to this Agreement shall be, at such time as they are required to be executed by Optionee, duly authorized, executed and delivered by Optionee and are or shall be, at such time as the same are required to be executed hereunder, valid, legally binding obligations of and enforceable against Optionee in accordance with their terms, except as enforceability may be limited by bankruptcy laws or other similar laws affecting creditors' rights. 8.6. Neither the execution or delivery of this Agreement or the documents referenced in this Agreement, nor the incurring of the obligations set forth in this Agreement, and the certificates, declarations and other documents referenced in this Agreement, nor the consummation of the transactions in this Agreement contemplated, nor compliance with the terms of this Agreement and the documents referenced in this Agreement, will violate any provision of law, any order of any court or governmental authority or conflict with or result in the breach of any terns, conditions, or provisions of, or constitute a default under any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreements or instruments to which Optionee is a party or which affect any of the Property or the transactions contemplated by this Agreement. 8.7. Other than as disclosed by Optionor in writing to Optionee, there are no legal proceedings either pending or, to the knowledge of the Optionee Representatives, threatened, to which Optionee is or may be made a party, or to which the Parcel, is or may become subject or which could reasonably affect the ability of Optionee to carry out its obligations hereunder or which would affect the Parcel. Optionee shall promptly advise Optionee in writing if Optionee becomes aware that any representation or warranty made by Optionee is or becomes untrue in any material respect prior to any Close of Escrow. Optionee's representations and warranties set forth in this Section shall be deemed to be restated at consummation of any purchase contemplated in this Agreement and shall survive any such purchase. 9. Destruction/Condemnation of Parcel: Other Notices. In the event that all or any portion of the Land or Improvements is damaged or destroyed by any casualty or is subject to a taking or condemnation under the provisions of applicable law after the Effective Date but prior to the date of Closing, Optionor shall give Optionee immediate written notice of the same. Optionor shall promptly notify Optionee of any building code violation notices or actions pending, and of any event that causes the representation of Optionor under this Agreement to no longer be true or correct. 75A' 362 10. Notices. Any notice, request, demand, instruction or other document required or permitted to be given or served hereunder or under any document or instrument executed pursuant hereto will be in writing and will be delivered personally or sent by United States registered or certified mail, return receipt requested, postage prepaid or by overnight express courier, postage prepaid and addressed to the parties at their perspective addresses set forth below, and the same will be effective upon receipt if delivered personally or via overnight express courier or on the third Business Day after deposit if mailed. A party may change its address for receipt of notices by service of a notice to such change in accordance herewith. If to Optionee: Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 If to Optionor: City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702 Attn.: City Clerk with a copy to: City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 Attn.: City Attorney 11. Memorandum of Agreement. At Optionee's request, Optionor shall execute a memorandum of this Agreement in a form satisfactory to Optionee and Optionee may record such memorandum in the real estate records of the County in which the Real Property is located. 12. Assignment. Optionor may not assign its interest in this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Optionee, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing paragraph, Optionee may, without the prior written consent of Optionor assign its interest in this Agreement, or any of its rights or obligations hereunder to a Permitted Transferee (as defined below). As used herein, the term "Permitted Transferee" means (a) any affiliate of Optionee, being a person or entity who, directly or indirectly, controls, is controlled by, or is under common control with, Optionee, including any partner, member, stockholder or other equity holder of Optionee (for purposes of this definition, "control" shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of Optionee, whether through ownership of voting securities, membership, partnership or other ownership interests, by contract or otherwise; and the terms "controlling" and "controlled" shall have correlative meanings); or (b) a successor related to Optionee by merger, consolidation, non -bankruptcy reorganization or government action. No transfer or assignment in violation of the provisions hereof shall be valid or enforceable. Subject to the foregoing, this Agreement and the terms and provisions hereof shall inure to the benefit of and shall be binding upon the successors and assigns of the parties. 13. Further Instruments. Each Party will, whenever and as often as it shall be reasonably requested to do so by the other, cause to be executed, acknowledged or delivered any and all 75A' 363 such fixrther instruments and documents as may be necessary or proper, in the reasonable opinion of the requesting party, in order to carry out the intent and purpose of this Agreement. 14. Calculation of Time Periods; Business Day; Time of Essence. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described herein shall be deemed to end at 5:00 p.m. local time in the state in which the Real Property is located. As used herein, the term "Business Day" means any day that is not a Saturday, Sunday or legal holiday for national banks in the city in which the Real Property is located. Subject to the foregoing provisions, time is of the essence of this Agreement. 15. Entire Agreement; Amendments. This Agreement (including the documents delivered pursuant to this Agreement), constitutes the entire agreement of the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements or letters of intent of the Parties. This Agreement may not be amended, modified, or supplemented except by a written instrument signed by an authorized representative of each of the Parties. 16. Binding Effect; Enforcement. The covenants, agreements, representations, and warranties contained herein will be binding upon, be enforceable by and inure to the benefit of the representatives, successors, and permitted assigns of the respective parties hereto. 17. Applicable Law. This Agreement will be construed and interpreted under, and governed and enforced according to, the laws of the State of California applicable to contracts made and to be performed entirely therein. 18. Counterparts. This Agreement may be executed in any number of counterparts and by different Parties to this Agreement in separate counterparts, each of which when so executed and delivered will be deemed original, but all such counterparts, together, will constitute but one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Agreement will become effective upon the execution and delivery of a counterpart hereof by each Party to this Agreement. A signature of a Party to this Agreement sent by facsimile, electronic mail (including a scanned portable document format copy sent by electronic mail), or other electronic transmission will have the same force and effect as delivery of an original signature of such Party. 19. Interpretation. The paragraph and section headings in this Agreement are solely for convenience and will not be deemed to limit or otherwise affect the meaning or construction of any part of this Agreement. Any pronoun used in this Agreement will be deemed to cover all genders. The terms "include," "including," and similar terms will be construed as if followed by the phrase "without being limited to." The term "or" has, except where otherwise indicated, the inclusive meaning represented by the phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision or section of this Agreement. Words in this Agreement importing the singular number will mean and include the plural number, and vice versa. 75A1()364 20. Severability of Provisions. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 21. Optionor's Breach. In the event of a breach by Optionor of its obligations under this Agreement that continues without cure beyond the applicable cure period, if any, or, if none, for more than thirty (30) days after Optionee shall have given Optionor written notice thereof ("Optionor Breach"), Optionee may elect to terminate this Agreement, in which event this Agreement shall terminate and the Parties shall have no further rights or obligations under this Agreement, except for rights and obligations which, by their terms, survive the termination of this Agreement. 22. Optionee Indemnity. Subject to the terms and conditions set forth in this Section, Optionee shall indemnify, hold harmless, and defend Optionor and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Optionor Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by an Optionor Indemnified Party (collectively, "Optionor Losses"), arising out of any claim alleging: (i) any breach or non- fulfillment of any covenant or any negligent or more culpable act or omission of Optionee or its personnel (including any reckless or willful misconduct) in connection with this Agreement; (ii) any false representation of Optionee under this Agreement; or (iii) any claim for payment of Commissions to any other person or entity claiming by, through or under Optionee. Notwithstanding anything to the contrary in this Agreement, Optionee is not obligated to indemnify, hold harmless or defend any Optionor Indemnified Party against any claim (whether direct or indirect) if such claim or corresponding Optionor Losses arise out of or result from: (a) any pre-existing facts, circumstances, liabilities for matters merely discovered by Optionee (i.e., latent environmental contamination to the extent Optionee does not materially exacerbate same following its initial discovery), (b) Optionor Indemnified Party's and/or Optionor's agents' gross negligence or more culpable act or omission (including recklessness or willful misconduct), or (c) Optionor Indemnified Party's bad faith failure to materially comply with any of its material obligations set forth in this Agreement. Payments by Optionee under this Section in respect of any Optionor Losses are limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by any Optionor Indemnified Party in respect of any such indemnity claim. Any Optionor Indemnified Party shall use its best efforts to seek to recover any insurance proceeds in connection with making a claim under this Section. Promptly after the realization of any insurance proceeds, indemnity, contribution or other similar payment, any Optionor Indemnified Party shall reimburse Optionee for such reduction in Optionor Losses for which any Optionor Indemnified Party was paid under this Section before the realization of reduction of such Optionor Losses. Any Optionor Indemnified Party shall give Optionee prompt written notice (a "Claim Notice") of any Optionor Losses or discovery of facts on which such Optionor Indemnified Party intends to base a request for indemnification under this Section. Any Optionor Indemnified Party's failure to provide a Claim Notice to Optionee under this Section does not relieve Optionee of any liability that Optionee may have to any Optionor Indemnified Party, but in no event shall Optionee be liable for any 1 75A`365 Optionor Losses that result from a delay in providing a Claim Notice. Each Claim Notice must contain a description of the claim and the nature and amount of the related Optionor Losses (to the extent that the nature and amount of the Optionor Losses are known at the time). Any Optionor Indemnified Party shall furnish promptly to Optionee copies of all papers and official documents received in respect of any Optionor Losses. Optionee's duty to defend applies immediately, regardless of whether any Optionor Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any claim. Optionee may assume, at its sole option, control of the defense, appeal or settlement of any claim that is reasonably likely to give rise to an indemnification claim under this Section (an "Optionee Indemnified Claim") by sending written notice of the assumption to Optionor on or before thirty (30) days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Optionee Indemnified Claim and undertake, conduct and control, through reputable independent counsel of its own choosing (which Optionor shall find reasonably satisfactory) and at Optionee's sole cost and expense, the settlement or defense thereof. If Optionee assumes control of the defense under this Section, Optionor Indemnified Party (a) shall fully cooperate with Optionee in connection therewith; and (b) may employ, at any time, separate counsel to represent it; provided, that Optionor Indemnified Party is solely responsible for the costs and expenses of any such separate counsel. Notwithstanding anything to the contrary in this Section, Optionor Indemnified Party may defend an Optionee Indemnified Claim with counsel of its own choosing and without the Optionee's participation if: (a) the Optionee Indemnified Claim is one for which Optionor properly gave Optionee a Claim Notice under this Section, and Optionee fails to assume the defense or refuses to defend the Optionee Indemnified Claim under this Section; (b) the Optionee Indemnified Claim seeks only an injunction or other equitable relief against Optionor Indemnified Party; or (c) Optionor Indemnified Party reasonably believes: (i) that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Optionee; and (ii) counsel for Optionee could not adequately represent the interest of Optionor Indemnified Party because such interest could be in conflict with those of Optionee; or (iii) such action or proceeding involves, or could have a material effect on, any material matter beyond the scope of the indemnification or defense obligations of Optionee. If Optionor Indemnified Party assumes control of the defense under this Section, Optionee shall: (a) reimburse Optionor Indemnified Party promptly and periodically for the reasonable costs properly incurred in defending against the Optionee Indemnified Claim (including reasonable attorneys' fees and expenses); and (b) remain responsible to Optionor Indemnified Party for any Optionor Losses indemnified under this Section. Optionee shall give prompt written notice to Optionor of any proposed settlement of an Optionee Indemnified Claim. Optionee may not, without Optionor's prior written consent, which Optionor shall not unreasonably withhold, condition or delay, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise or consent: (a) includes an unconditional release of Optionor Indemnified Party from all liability arising out of such claim; (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Optionor Indemnified Party; and (c) does not contain any equitable order, judgment or tern (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of Optionor Indemnified Party. Optionor Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Optionee, which Optionee shall not unreasonably 175A=366 withhold, condition or delay, unless: (a) if the Optionee Indemnified Claim is one for which Optionor properly gave Optionee a Claim Notice under this Section, and Optionee fails to assume the defense or refuses to defend the Optionee Indemnified Claim under this Section; or (b) such settlement, compromise or consent: (i) includes an unconditional release of Optionee from all liability arising out of such claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Optionee; and (iii) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of Optionor Indemnified Party. The obligations of Optionee and Optionor Indemnified Party under this Section shall survive the Closing or earlier termination of the Disposition Agreement and the expiration or earlier termination of this Agreement. [Signatures on the following page] 1 75A�367 IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date. OPTIONEE: CARIBOU INDUSTRIES, INC. C Name: Its: OPTIONOR: CITY OF SANTA ANA, a public body, corporate and politic C Name: Its: Exhibits: Exhibit "A" Legal Description of the Property Exhibit `B" Legal Description of Parcel Exhibit "C" Notice of Exercise of Option Signature page to Caribou Industries, Inc. EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 76A-369 EXHIBIT A TO PURCHASE OPTION AGREEMENT PROPERTY LEGAL DESCRIPTION All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82-17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of Official Records of Orange County, California, bounded Southerly by the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and L.J. Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. 75A-370 EXHIBIT B LEGAL DESCRIPTION OF PARCEL 79A-371 82-•361609 EMIB1T W All of that certain real property situated in the State of / California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 31 6 and the southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in 01ock 11 and all of Lots 1, 2, 3, 4, 5 and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as sha-n on said Map, as vacated and described in that cE:r Lain Resolution No. 82-17 of the City Council of the City Of Santa Ana, a certified copy of which was recorded February 11, 1482, as Document No. 22-051577 of Official Records of Orange County, California, bounded southerly by file North line of Third Street, 60.00 feet pride, and hounded Northerly by a line parallel with and distant Northerly 110.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the Fast 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on a Map recorded i.n Book , page 51 of Miscellaneous Records of Los Angeles: County, California, as reserved in the need to J.F. Lieberg et al, dated June 5, 1923 and recorded in 'look 475, page 362 of Deeds, records of orange County, California. parcel 3: The right to use that portion Of a brick wail If the building on Lot 1 in Block L1 of the Town of Sant' Ara, as per Map recorded in Book 2, page 51 of Miscellaneocs Records of LOS Angeles County, California, which adjoins the Fast boundary line of the South 25.00 feet of Lot 2 in paid Alock 11, as a party wall, as jr.ntei by t:at certain alsoreellent, dated July 1, 1919 by and between 11.R. Andre, as Roy Andre, at al, as parties of the first part, anAugust Carden at al, as parties of the second part, rrecorded o`_ Orange 19, 1919 in Book 341, page 362 of needs, County, California. 75A-372 EXHIBIT C OPTION EXERCISE NOTICE To: Pursuant to the provisions of that certain Purchase Option Agreement (this "Agreement'), made as of 2020 (the "Effective Date"), at Santa Ana, California, by and between City of Santa Ana, a public body, corporate and politic ("Optionor"), and Caribou Industries, Inc. a Nevada Corporation ("Optionee"), Optionee hereby exercises the Option. Capitalized terms not defined in this Notice of Exercise shall have the meanings ascribed to them in the Agreement. Dated: 2020 OPTIONEE: CARIBOU INDUSTRIES, INC. a Nevada Corporation By: _ Name: Its: 7�X-373 EXHIBIT "K" TO DISPOSITION AND DEVELOPMENT AGREEMENT GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT, DATED OCTOBER 5, 2020 FOR REFERENCE PURPOSES ("PARKING AGREEMENT") Exhibit "K" (Parking Operations Agreement) 55394.00049\33239203.12 75A-374 RECORDED AT REQUEST OF CLERK, CITY COUNCIL CITY OF SANTA ANA WHEN RECORDED RETURN TO: City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92701 Attention: City Clerk Exempt from Filing Fees Gov. Code Sections 27383, 6103 GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California, and CARIBOU INDUSTRIES, INC., a Nevada Corporation [Dated as of October 5, 2020, for reference purposes only] Page 1 of 14 55 3 94.0 004 9\3 3 221248.8 75A-375 THIS GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT ("Parking Agreement") is dated for reference purposes only as of and made and entered into by and between the City of Santa Ana, a California charter city in the County of Orange of the State of California (the "City"), and Caribou Industries, Inc. a Nevada Corporation (the "Developer") (collectively, the "Parties," and each a "Parry"). The Parties enter into this Agreement with reference to the following recited facts (collectively, the "Recitals," and each a "Recital"): RECITALS A. City and Developer have entered into a Disposition and Development Agreement, dated October 5, 2020 for references purposes only, (the "DDA") for the development of the Property with a Mixed Use Project including apartments, commercial (including retail and food/beverage establishments), a seventy-five (75) room Hotel Project and a Parking Structure which will contain 444 total parking spaces including 211 public parking spaces ("Project"). B. Pursuant to the DDA, the City will convey to Developer the real property generally located at 201 West 3`d Street, Santa Ana, CA 92701 and as more particularly described in the legal description(s) attached to this Agreement as Exhibit "A" and depicted as APN 398-264-13 on the site plan attached to this Agreement as Exhibit "F" to the DDA (the "Property"). C. City is the Owner of "Parcel A" as shown on Exhibit B, which is incorporated herein by this reference which contains 211 public parking spaces. ("Public Parking Parcel") D. Developer is the owner of the Mixed Use Project, which contains 171 residential units, as shown on "Parcel B" which contains 196 parking spaces. ("Mixed Use Parking") E. Developer is the owner of the Hotel Project, which contains seventy five (75) hotel units, as shown on "Parcel C" which contains eighty-three (83) parking spaces which are accomplished by tandem parking spaces as well as the use of mechanical lifts. ("Hotel Parking") F. The Public Parking Parcel, the Mixed Use Parking and Hotel Parking are shown on Exhibit b, which is incorporated herein by this reference. G. Mixed Use Parking and Hotel Parking may be referred to together as "Developer Parking Parcels." ("Developer Parking Parcels") H. Public Parking Parcel, Mixed Use Parking and Hotel Parking may be referred to together as "Parking Structure". I. The City and Developer desire to enter into this Parking Agreement to set forth with specificity the accessibility and parking obligations applicable to the Parking Structure. ARTICLE 1 PARTIES; EFFECTIVE DATE 1.1 Incorporation of Recitals. The City and Developer agree that all of the above recitals are true and correct and are hereby incorporated into this Parking Agreement. Page 2 of 14 55 3 94.0 004 9\3 3 221248.8 75A-376 1.2 Effective Date of Agreement. This Parking Agreement is dated as of October 5, 2020, for reference purposes only. This Parking Agreement will become effective upon execution by the parties ("Effective Date") 1.3 Parties to Agreement. 1.3.1 The City. The address of the City is 20 Civic Center Plaza (M-25), P.O. Box 1988, Santa Ana, CA 92701; Attention: Steven Mendoza, Acting City Manager/Executive Director for Community Development. 1.3.2 The Developer. The Developer is Caribou Industries, Inc. a Nevada Corporation, LLC, The principal address of the Developer is 1103 N. Broadway, Santa Ana, CA 92701: Attention: Michael Harrah. 1.4 All of the terms, covenants and conditions of this Parking Agreement shall be binding on and shall inure to the benefit of the Developer and its nominees, successors and assigns. Wherever the term "Developer" is used herein or therein, such term shall include any nominee, assignee or successor of the Developer. 1.4.1 The City and Developer are sometimes individually referred to as "Party" and collectively as "Parties." ARTICLE 2 GRANT OF EASEMENTS 2.1 City Grant of Easements in Public Parking Parcel. The City hereby grants to Developer, for the benefit of Developer, a non-exclusive easement for pedestrian and vehicular ingress and egress for that certain real property (referred to herein as "Public Parking Parcel' described in Exhibit B and Exhibits B is hereby incorporated herein by reference. ("City Easement') The City Easement is being granted for the benefit of Developer for the purpose of constructing, operating and maintaining a portion of the Parking Structure and enabling the provision of a vehicular passageway throughout the Parking Structure. City Easement shall be enforceable as a covenant running with the land and an equitable servitude upon the lands overlying the Parking Structure, binding upon said lands, each person having or acquiring any right title or interest in said lands or any part thereof, or any improvements thereon, and upon their respective successors and assigns, and shall run for the benefit of the Developer and its successors and assigns owning or operating the Parking Structure. The grant of these Easements shall survive the termination of this Parking Agreement. 2.2 Developer Grant Easements in Developer Parking Parcels. The Developer hereby grants to City, for the benefit of City, non-exclusive easement for pedestrian and vehicular ingress and egress for that certain real property (referred to herein as the "Developer Parking Parcels") described in Exhibit B. ("Developer Easement') The Developer Easement shall be enforceable as a covenant running with the land and an equitable servitude upon the Parking Structure, binding upon each person having or acquiring any right, title, or interest in the Site or any part thereof, or any improvements thereon, and upon their respective successors and assigns, and shall run for the benefit of the City and its successors and assigns owning or operating the Parking Structure. Any conveyance of all or any part of or interest in the Parking Structure or Project shall be subject to, and by this Parking Agreement is deemed to be subject to, Easement Page 3 of 14 55 3 94.0 004 9\3 3 221248.8 75A-377 granted by Developer to the Developer Parking Parcels. The grant of these Easements shall survive the termination of this Parking Agreement. 2.3 Term. The term of this Parking Agreement shall remain in effect so long as the City owns the Public Parking Parcel. ARTICLE 3 OPERATION OF PARKING STRUCTURE 3.1 Costs of Operation and Maintenance. During the term of this Parking Agreement, Developer shall be solely responsible for all costs and expenses incurred for operating and maintaining, or causing to be operated and maintained, the Parking Structure, in accordance with the terms of this Parking Agreement. 3.2 Public Parking. Upon the issuance of a certificate of occupancy or certificate of completion by the City for the Parking Structure, or as soon thereafter as the Parties may mutually agree, the Public Parking Parcel which contains 211 public parking spaces, shall be available to members of the public twenty-four (24) hours a day, 365 days a year (the "Public Parking"). Developer shall ensure that the Residential tenants, Hotel Guests, and the staff for any use within the Project shall park in those designated spaces and shall not utilize the Public Parking at any time unless they pay for use of the Public Parking. Any use of the Public Parking by Residential tenants, Hotel Guests, and the staff for any use within the Project shall be subject to paying the Public Parking Fee consistent with the current Public Parking Rates set in accordance with Section 3.3. 3.2.1 No Common Area on floors within the Parking Structure containing Public Parking Parcels be used for parking without the express written consent of the City, nor shall any Common Area necessary to access the Public Parking Area be used for parking without the express written consent of the City. 3.2.2 Developer understands that the City currently sells monthly parking passes, and thirty (30) parking spaces are leased to California State University, Fullerton Foundation. The lease with California State University, Fullerton Foundation is set to expire on December 31, 2028. The City will work with California State University, Fullerton Foundation to relocate the thirty (30) leased parking spaces. If the relocation cannot be accomplished the Developer will accommodate the lease as part of the 211 public parking spaces. 3.2.3 If the thirty (30) leased parking spaces are unable to be relocated prior to the execution of this Agreement, these thirty (30) leased parking spaces shall not be subject to the parking rates as set forth in Section 3.3. 3.3 Parking Rates. Developer shall be entitled to establish the Public Parking Rates. The parking rates should be consistent with parking rates in the surrounding area. Public Parking Rates shall be approved in writing by the City. Developer shall not lease or issue any monthly parking pass for the Public Parking Space(s) without the prior written approval of the City. 3.4 Parking Revenue. Page 4 of 14 55 3 94.0 004 9\3 3 221248.8 75A-378 3.4.1 Collection of Parking Revenue. Developer may either provide staff to collect the Public Parking Fees, utilize automated equipment to collect the Public Parking Fees or a combination of staff and automated equipment. The Parking Rates shall be charged and collected twenty-four (24) hours a day. 3.4.2 Distribution of Parking Revenue. Developer shall use and distribute the Public Parking Revenue in the following order (1) payment of any Third Party Parking Agreement, if one is executed by Developer in accordance with DDA Section 5.13.2; (2) Parking Structure Operation expenses; (3) Payment of the Parking Structure Debt incurred by the City; (4) Distribution to City and Developer in compliance with Terms of the DDA Section 5.13, et. seq. 3.5 Developer's Duties. The Developer at all times shall have full control of and management of the Parking Structure, subject to the following: 3.5.1 Parking Structure Debt. Developer covenants and agrees pursuant to the terms of the DDA that Developer shall be solely responsible to pay the Parking Structure Debt in accordance with the terms of the DDA. 3.5.2 Management and Operating Plan. At least ninety (90) days prior to the completion of the Parking Structure, Developer shall submit to the City a Management and Operating Plan for the Parking Structure. 3.5.2.1 The Management and Operating Plan shall contain the following: (a) the method of collection of Parking Fees (e.g. staff collection at gate, automated gates or pay point); (b) the proposed fee structure for the Parking Rates; (c) the maintenance schedule including a telephone number where the City can contact someone twenty-four (24) hours a day to identify any deficiencies with the maintenance of the Parking Structure; (d) if Developer will be using a Third Party Operator, the proposed agreement with the Third Party Operator shall be provided; and (e) the annual Budget to the operation of the Parking Structure. 3.5.2.2 City shall be entitled to request and Developer shall provide any additional information City determines in its sole discretion is necessary to ensure the adequate operation of the Parking Structure. 3.5.3 Consistent with the approved Site Plans for the Project, Developer shall be entitled to post signage and paint curbs and lines in a manner typical of Parking Structure such as, without limitation, restricting the hours and duration of parking, designating specific spaces for use by members of the Public, or the Hotel or Residential use; designating specific spaces for handicapped parking, and establishing speed limits, gates, controls and other barriers and routes of travel. At no time shall Developer designate any parking within the Public Parking Parcel for any use other than Public Parking. Page 5 of 14 55 3 94.0 004 9\3 3 221248.8 75A-379 3.5.4 Enforce the observation of posted speed limits within the Parking Structure and to enforce parking restrictions including the duration of parking, and specified purpose spaces, and in connection therewith, to exact fines and penalties and/or cause vehicles to be towed away at the vehicle owner's expense in accordance with applicable parking ordinances. 3.5.5 In consultation with City's Police Department and in compliance with all City laws and regulations, institute security measures which may include, but are not limited to, gates, parking attendants, video cameras, motion sensors, lighting, and other means of controlling and securing the Parking Structure against unauthorized entry or improper, undesirable, or criminal conduct. It is further understood that notwithstanding that the Public Parking to be made available, Developer retains the right to exclude any specific person or persons who may have committed or be suspected of committing any improper, undesirable or criminal conduct or for any other reasons whatsoever except and to the extent prohibited by law. 3.5.6 Maintenance of Parking Structure. During the Term, Developer shall maintain, or cause to be maintained, in good condition and repair Parking Structure, in a neat, clean, sanitary and orderly condition, ordinary wear and tear and casualty excepted, including landscaping, utility systems, lighting, paving, irrigation systems, drainage facilities or systems, grading, subsidence, retaining walls or similar support structures foundations, directional signage, ornamentation, and all other improvements on or to the Parking Structure, now existing or made in the fixture. All maintenance shall be done in accordance with the all applicable Federal, State and local statutes, ordinances, rules, standards and regulations. 3.5.6.1 Developer shall provide a telephone number that the City can contact twenty-four (24) hours a day to report any maintenance deficiency. 3.5.6.2 Developer shall make repairs as soon as practicable and shall notify City once the maintenance deficiency is corrected. If Developer fails to correct the maintenance deficiency within forty-eight (48) hours of being reported by the City, unless Developer has requested additional time is necessary to correct the maintenance deficiency, City in its sole discretion has the right but not the duty to correct the maintenance deficiency, or to hire a contractor to perform the correction. Developer shall be liable for all costs incurred by the City to correct the maintenance deficiency, including City Staff time, and shall reimburse City for the costs within ten (10) days of receiving the invoice from the City. Should Developer fail to pay the invoice within thirty (30) calendar days from invoice, the costs shall accrue interest at the lesser of: (i) the rate often percent (10%) per annum or (ii) the Usury Limit, until paid in full. The City's right, but not the obligation, to cure any maintenance deficiencies shall not be deemed to create any special duty of care or create any right of any third parties, whether founded in tort or contract. 3.6 Insurance. 3.6.1 Continuously during the Term, Developer shall furnish, or shall cause to be furnished, to City evidence that Developer maintains Commercial General Liability insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001; such insurance policy or policies (including umbrella coverage, if any) to afford with minimum limits of at least Three Million Dollars ($3,000,000.00) per occurrence for bodily injury, personal injury and property damage. 3.6.2 Endorsements containing the following four provisions shall be obtained for the policies providing the above insurance: Page 6 of 14 55 3 94.0 004 9\3 3 221248.8 75A-380 3.6.2.1 Additional named insureds: "The City of Santa Ana, its elective and appointive boards, officers, agents, volunteers and employees are added as additional named insureds with respect to this subject project and contract with the City." 3.6.2.2 Notice: "Said policy shall not terminate nor shall it be canceled or the coverage reduced until after thirty (30) days written notice is given to the City of Santa Ana." 3.6.2.3 Primary coverage: "Said policy and coverage as is afforded to the City of Santa Ana, its elective and appointive boards, officers, agents, volunteers and employees shall be primary insurance and not contributing with any other insurance maintained by the City of Santa Ana." 3.6.2.4 Cross-liability/Severability of interests: "Said policy provides cross -liability coverage for Developer and City and provides for severability of interests." 3.6.3 Any and all insurance policies required hereunder shall be obtained and maintained at all times from insurance companies admitted in the State of California and rated at least A: VIII in Best's Insurance Guide. Any insurance maintained hereunder may be maintained under blanket policies, covering other risks and properties. 3.6.4 Developer agrees that any policy limits specified in this Section 3.6 shall be increased from time to time during the Term as reasonably requested by City in writing as follows: 3.6.4.1 City may request no more than once in any five (5) year period during the Term that the coverage limits be reviewed to set forth an increase in coverage limits. 3.6.4.2 Upon receipt of such a request from City, Developer shall consult with Developer's insurance agent and City shall consult with its Risk Manager, and the insurance limits shall be increased, if appropriate, to equal the then -prevailing commercially reasonable levels of insurance carried by prudent and responsible owners of similar privately - owned parking facilities in Orange County. 3.7 Indemnity. 3.7.1 To the fullest extent permitted by law, Developer shall fully indemnify, defend (at Developer's sole cost and expense and with legal counsel selected and approved by City, in City's sole discretion), protect and hold harmless City, its elected officials, directors, board members, officers, employees, contractors, volunteers, agents and attorneys (collectively "City Indemnitees") from and against any and all actual claims, demands, obligations, acts, causes of action, damages, costs, expenses, losses, judgments, fines, penalties and liabilities, in law or in equity ("Claims"), to person or property, of every kind or nature whatsoever claimed, made or suffered by any person or entity, relating to this Parking Agreement, the construction or condition of the Parking Structure, or operation of the Parking Structure by Developer, or its employees, agents, contractors or representatives ("Third Party Challenge"), except insofar as such Claims are the result of gross negligence or willful misconduct of any City Indemnitee. Developer further agrees that City may use its own legal staff or outside counsel in connection with defense of any Third -Party Challenge, at the City Attorney's sole discretion, and City shall Page 7 of 14 55 394.00049\33221248.8 75A-381 have the right to select outside counsel of its choice, in its sole discretion. All reasonable costs to City associated with its defense of any Third Party Challenge, including but not limited to the time and expenses of the City Attorney's Office, other City staff, any Consultants or experts retained in connection with the Third Party Challenge, attorney's fees of City's selected outside counsel, and litigation costs shall be fully reimbursed to City by Developer. City will provide Developer with monthly invoices for all such costs in the case of a Third Party Challenge. Developer shall make payment to City for any costs covered by this section within thirty (30) days of receipt of an invoice from City for such costs. 3.7.2 Developer's waivers with regard to City as well as its commitments to the defense and indemnification of City set forth herein shall remain in full force and effect throughout all stages of any lawsuit, claim, or proceeding. 3.7.3 In the event of any Third Party Challenge, the Parties shall cooperate in defending against such challenge. Each party shall promptly notify the other of any such challenges. Developer shall assist and cooperate at its expense with City in connection with any such challenges. 3.7.4 In any action at law or equity or other legal or administrative proceeding arising out of or relating to this Parking Agreement, or Developer's operation of the Parking Structure, neither City nor Developer shall be entitled to damages or other remedies or relief except as expressly set forth in this Parking Agreement. Permitted remedies shall include mandatory or injunctive relief, writ of mandate, specific performance of this Parking Agreement, or a claim for reimbursement of unexpended funds and advanced by Developer to City. Without limiting the generality of the foregoing, neither City nor Developer shall be liable under any circumstances for any direct, indirect, special, compensatory, consequential, punitive or exemplary damages, regardless of whether the claim for damages is based on contract, tort, statute or other basis of liability. 3.7.5 Indemnification Survives Termination. The rights and obligations set forth in this Section 3.7 shall survive termination of this Parking Agreement. 3.8 Developer Solely Responsible. Developer acknowledges and agrees that it is solely responsible for the operation and maintenance of Parking Structure and that City shall have no liability for any claims arising out of such operation and maintenance of Parking Structure. 3.9 Restoration After Casualty. Subject to the limitations contained in this Section 3.9, in case of casualty resulting in damage or destruction to the Parking Structure during the Term, Developer shall restore the Parking Structure, as nearly as feasible to its condition prior to the casualty (except that Developer shall have the right to make reasonable alterations). 3.10 Developer's Obligation to Pay Taxes. During the Term, Developer shall pay all lawfully required property taxes and assessments on the Site, including, without limitation, real estate and personal property taxes, and any and all utility, city, or county assessments, lawfully assessed, levied, confirmed, or imposed during the Term of this Parking Agreement, whether or not now customary or within the contemplation of City and Developer. 3.10.1 Developer will have the right to contest the amount or validity, in whole or in part, of any tax or assessment by appropriate proceedings diligently conducted in good faith, only after paying the tax or posting such security as may be reasonably and customarily Page 8 of 14 55 3 94.0 004 9\3 3 221248.8 75A-382 necessary in order to protect the Public Parking against loss or forfeiture. Upon the termination of those proceedings, Developer will pay the amount of the tax or part of the tax as finally determined, the payment of which may have been deferred during the prosecution of the proceedings, together with any costs, fees, interest, penalties, or other related liabilities. City will not be required to join in any contest or proceedings unless the provisions of any law or regulations then in effect require that the proceedings be brought by or in the name of City. In that event, City will join in the proceedings or permit them to be brought in its name; however, City will not be subjected to any liability for the payment of any costs or expenses in connection with any contest or proceedings, and Developer will indemnify City against and hold City harmless from any of those costs and expenses. 3.11 Covenants Running with the Land. The covenants of this Article 2 and 3 shall be covenants running with the land under California Civil Code Section 1468 of the Developer Property and of the Public Access Parcels for the benefit of the and the City, and binding upon successive owners of the Developer Property, until the end of the term, as defined in Section 2.3. ARTICLE 4 AUDITS 4.1 Audit and Records. The Developer agrees to provide, within forty-eight (48) of written notice provided by City, such reasonable reports, ledgers, receipts, invoices and similar documentation as may be necessary or relevant to the determination of Revenue received by Developer from the collection of Parking Fees, the Costs of Operation and Maintenance of the Parking Structure, and data regarding Parking Structure activity. City or its designee may request any other information it deems necessary to monitory compliance with the requirements set forth in the DDA or this Parking Agreement. Such records shall be maintained for a period of no less than five (5) years from their creation. The City may at any time, require the Developer to allow an audit of its books and records concerning the operation and maintenance of the Parking Structure by a certified public accounting firm of the City's choice and shall direct its accountants, attorneys, consultants and others having possession or control of such information and/or documentation to reasonably cooperate with the City's auditors; provided, however, that the Developer shall be required to disclose or make available any information or document subject to a privilege or exemption pursuant to any provision of the California Evidence Code. 4.1.1 City shall be permitted to inspect and photocopy same, and to retain copies, outside of the Developer's premises, of any and all records with appropriate safeguards, if such retention is deemed necessary by the City in its reasonable discretion. This information shall be kept by the City in strictest confidence allowed by law. 4.1.2 All books, records, documents and any other evidence referenced in this Section 4.1 shall be maintained or made available in a single location in Santa Ana. 4.1.3 Once every fiscal year, City may request an audit to be performed by an independent audit firm selected by City, Developer shall be solely responsible for the expense of this audit. City may perform additional audits during the fiscal year, but any additional audit(s) shall be at the sole expense of the City. 4.2 If the conclusion of such audit is that the Developer has understated its Parking Revenue by more than ten percent (10%), or overstated its Expenses by more than ten percent Page 9 of 14 55 3 94.0 004 9\3 3 221248.8 75A-383 (10%), in any quarter, the Developer shall reimburse the City any underpayment of Fees owed to City within ten (10) days written demand therefor, computed from the date that such underpayment was otherwise due, together shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum or (ii) the Usury Limit, until paid in full. ARTICLE 5 II 1 : UI : � Ih: Y 1 ► 5.1 Event of Default. Each of the following shall constitute an "Event of Default" under this Parking Agreement: 5.1.1 Failure by a Party to comply with and observe any of the conditions, terms, or covenants set forth in this Parking Agreement, if such failure remains uncured within sixty (60) days after written notice of such failure from the other Party in the manner provided herein or, with respect to a default that cannot be cured within thirty (30) days, if the Party in default fails to commence such cure within such sixty (60) day period or thereafter fails to diligently and continuously proceed with such cure to completion. However, if a different period, notice requirement, or remedy is specified under any other section of this Parking Agreement, then the specific provision shall control. 5.1.2 At City's sole discretion, City can request developer Terminate the Third Party Operator. Developer shall replace the Third Party Operator within ninety (90) calendar days of City's request. 5.1.3 At City's sole discretion if Developer fails to cure the default, City shall have the right but not the obligation to become the operator of the Parking Structure. If City becomes the Operator, all City incurred expenses including staff time for the operation of the Parking Structure shall be paid by the Parking Revenue received by the Parking Structure, should the Parking Revenue be insufficient to cover City incurred expenses, then Developer shall reimburse the City for the City's incurred expenses that were not covered by the Parking Revenue. Developer shall pay City within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City pursuant to this Section 5.3.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate often percent (10%) per annum or (ii) the Usury Limit, until paid in full. 5.1.4 Should Developer purchase Public Parking Parcel from City and Record of a covenant to retain and maintain the 211 Public Parking Spaces in perpetuity the benefit of the City, then the terms of this Parking Agreement shall expire, excepting however, that the Indemnity Provisions and all granted Easements, for access and parking shall survive the termination of this Parking Agreement. 5.2 Legal Actions. Either party may institute legal action to cure, correct or remedy any default, and recover damages for any such default, or to obtain any other remedy available to that party, in law or in equity, consistent with the provisions of this Parking Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange County, State of California. Page 10 of 14 55 3 94.0 004 9\3 3 221248.8 75A-384 ARTICLE 6 MISCELLANEOUS TERMS 6.1 Entire Agreement. This Parking Agreement, which incorporates the DDA, contains the entire agreement between the Parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Parking Agreement shall be of no force and effect. This Parking Agreement may be amended only by a subsequent document in writing, signed by the Parties. 6.2 Attorneys' Fees. In the event of any action or proceeding relating to this Parking Agreement or any breach thereof, the prevailing Party shall be entitled to recover from the non - prevailing Party, in addition to all other relief available to it, its reasonable attorneys' fees and costs. 6.3 Binding Effect. This instrument shall be binding on and shall inure to the benefit of Developer and City, and their respective permitted successors, assigns, heirs, executors and administrators, and shall run with the land comprising the Parking Structure, and be binding upon all successor owners, lessees and mortgagees of the Site, and inure to the benefit of all successor owners of the Site and their mortgagees. 6.4 City Manager's Authority. The City Manager is hereby given the authority, on behalf of the City, to approve minor, non -substantive amendments to this Parking Agreement, and to give, condition or withhold the City's approvals as described herein, all without the need to return to the City's governing board for approval or ratification. 6.5 Subordination. At Developer's request from time to time, the City shall sign such documents as may be requested by Developer, to confirm that the City's rights under this Parking Agreement, are subject and subordinate to other encumbrances on the Site including, without limitation, deeds of trust and declarations of covenants, conditions, restrictions and reciprocal easements; provided, however, that as a condition of signing any document, the City shall be provided an agreement from the holder of the senior encumbrance that, except in the case of an Event of Default on the part of the City, the City's rights under this Parking Agreement including, without limitation, the Parking Covenant, shall not be disturbed. [Signatures on following pages] Page 11 of 14 55 3 94.0 004 9\3 3 221248.8 75A-385 SIGNATURE PAGE TO GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT By and Between �ITI�F MANTA AND CARIBOU INDUSTRIES, INC. CITY OF SANTA ANA: DEVELOPER: By:_ Name: Its: Attest: By: City Clerk 0uaITIMA91o7:R�lIlei To] :7u$ By: City Attorney m Its: 55394.00049\33221248.8 75A-386 EXHIBIT A LEGAL DESCRIPTION 55 3 94.0 004 9\3 3 221248.8 75A-387 EXHIBIT "A" TO GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT PROPERTY LEGAL DESCRIPTION All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82-17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of Official Records of Orange County, California, bounded Southerly by the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and L.J. Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. 75A-388 EXHIBIT B City Easement and Developer Easements 55 3 94.00049\3 3 221248.8 75A-389 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council Free Recording pursuant to Government Code 17383 DENSITY BONUS HOUSING AGREEMENT This DENSITY BONUS HOUSING AGREEMENT ("Agreement'), made and entered into this day of 2020, by and between the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"), and Caribou Industries, Inc., a Nevada corporation ("Developer"). City and Developer are sometimes referred to collectively as the "Parties" and individually as a "Party." RECITALS A. The City owns that certain property located within the City of Santa Ana, County of Orange, State of California, commonly known as 201 West 3`d Street, Santa Ana, California, 92701, and legally described as set forth in Exhibit A attached hereto and incorporated herein by this reference as if set forth in full ("Property"). B. Based on the reasons identified in the Disposition and Development Agreement between the Parties, the City desires to convey the Property and the Developer desires to accept the Property for the purpose of development of the Project as defined herein. C. Developer is proposing to construct a mixed use commercial and residential development consisting of one -hundred and seventy-one (171) residential rental units and 13,419 square feet of commercial space on the Property, in addition to a parking structure and hotel, as more particularly set forth in Density Bonus Application No. 2020-01 and Site Plan Review No. 2020-01 ("Project'). D. Santa Ana Municipal Code sections 41-1600, et seq. ("City Density Bonus for Affordable Housing"), and California Government Code sections 65915, et seq. ("State Density Bonus Law"), set forth a process to provide increased residential densities and/or incentives, concessions, or waivers to property owners or developers who guarantee that a portion of their residential development will be available to low income, very -low income, or senior (also known as "qualified") households. These regulations are intended to materially assist the housing industry in providing adequate and affordable housing for all economic segments of the community and to provide a balance of housing opportunities for very -low income, low income and senior households throughout the city. 75A-390 E. The Project is proposing a total number of one -hundred and seventy-one (171) residential units, including eleven (11) percent (nineteen (19) units) for very -low income households. Accordingly, the Developer is able to seek an onsite parking standards incentive, concessions and waivers pursuant to the California Government Code because the Project will include onsite affordable units. Specifically, pursuant to California Government Code section 65915(p)(1), the Developer is seeking a reduction to provide onsite parking at the ratio of one (1) stall for studio or one -bedroom units, and two (2) stalls for two- to three -bedroom units, a concession for open space, and a concession for massing pursuant to California Government Code section 65915(d)(1), as well as waivers for building height and floor area pursuant to California Government Code Section 65915(e)(1) . F. The Project complies with the affordable housing requirements set forth in the State Density Bonus Law and City Density Bonus for Affordable Housing. For purposes of this Agreement, the Project shall be the "housing development" as defined in the State Density Bonus Law. G. In light of the purpose of the State Density Bonus Law and City Density Bonus for Affordable Housing, and the express provisions of Government Code section 65915(p), the City has determined to grant Developer's application for density bonus and related onsite parking standards incentive, two concessions and waivers. H. This Agreement, and the exhibits attached hereto and incorporated herein by reference, are intended to set forth the terms and conditions for the implementation of the Project's requirement to provide affordable housing units in exchange for receiving thedensity bonus incentive set forth herein. NOW, THEREFORE, in consideration of the above recitals, which are incorporated herein by this reference, and of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: DEFINITIONS AND EXHIBITS 1.1 Definitions. In addition to the terms that may be defined elsewhere in this Agreement, the following terms when used in this Agreement shall be defined as follows: 1.1.1 "Adjusted for family size appropriate to the unit" shall have the meaning set forth by Health and Safety Code Section 50052.5(h). . 1.1.2 "Affordable Rent" means the maximum Monthly Rent that may be charged to and paid by an Eligible Household for the Affordable Units, as required by the terms of this Agreement. The Affordable Rent shall be adjusted to reflect a reasonable utilities allowance for utilities paid by the household using the Santa Ana Housing Authority Multi -Family Housing Utility Allowance Schedule, and shall be updated no less than annually. 75A-391 1.1.3 "Affordable Rent Schedule" means a rent schedule established as of the date of issuance of an occupancy permit (exclusive of tenant utility payments or security deposits) for the required number/percentage of the total number of units in the Project which are to be rented or available for rent to very -low income tenants. Said Affordable Rent Schedule shall be established at the time of the issuance of the occupancy permit ("Initial Rent Schedule") and shall be created in accordance with the Orange County, California Primary Metropolitan Statistical Area ("PMSA") as published by the California Department of Housing and Community Development ("HCD"), adjusted for family size, and shall be updated no less than annually. 1.1.4 "Affordable Units" means nineteen (19) units, which shall be comprised of ten (10) studio units, six (6) one -bedroom units, and three (3) two -bedroom units for Very -Low Income Tenants. Any change to the number or distribution of Affordable Units is subject to City Manager approval. 1.1.5 "Agreement" means this Density Bonus Housing Agreement. 1.1.6 "Base Units" means the one hundred and twenty-seven (127) Units that Developer would be authorized to develop on the Property without application of the State Density Bonus Law. 1.1.7 "City" means the City of Santa Ana, California 1.1.8 "City Council" means the City Council of the City of Santa Ana. 1.1.9 "City Attorney" means the City Attorney for the City of Santa Ana. 1.1.10 "City Manager" means the City Manager for the City of Santa Ana. 1.1.11 "City's Planning Commission" means the Planning Commission for the City of Santa Ana. 1.1.12 "Density Bonus Housing Agreement Term" means the period during which this Agreement shall be in full force and effect, as provided for in Section 6.1 below. 1.1.13 "Density Bonus Units" means the forty-four (44) Units in addition to the Base Units that Developer shall develop pursuant to the terms and conditions of this Agreement, of which Developer would not be entitled to develop without providing the Affordable Units. Pursuant to density allowance in the State Density Bonus Law, Developer would be allowed up to forty-five (45) Density Bonus Units, but has elected to utilize forty-four (44) Density Bonus Units pursuant to the plans submitted by Developer. 1.1.14 "Developer" means Caribou Industries, Inc., a Nevada corporation, and its permitted successors and assigns to all or any part of the Property. 75A-392 1.1.15 "Effective Date" means the date the Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement, pursuant to section 4.1 herein. 1.1.16 "Eligible Household" means a Household whose income does not exceed the qualifying limit for a "very -low income tenant" as defined herein, which means persons and families whose income does not exceed the qualifying limit for very -low income households. 1.1.17 "Household" means all persons residing in a Unit. 1.1.18 "Median Income" means the Orange County, California area median income, adjusted for family size appropriate to the unit, as periodically published by HCD. 1.1.19 "Monthly Rent" means the total of monthly payments for (a) use and occupancy of each Affordable Unit and land and facilities associated therewith, (b) any separately charged fees or service charges assessed by Developer which are required of all tenants, other than security deposits, application fees or credit check fees (c) a reasonable allowance for an adequate level of service of utilities not included in (a) or (b) above, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuels, but not including telephone or cable service, and (d) possessory interest, taxes or other fees or charges assessed for use of the land and facilities associated therewith by a public or private entity other than Developer. In the event that certain utility charges are paid by the landlord rather than the tenant, no utility allowance shall be deducted from the rent for that type of utility charge. 1.1.20 "Project" means that certain mixed use commercial and residential development as more particularly described in Recital B and Section 2 of this Agreement. 1.1.21 "Property" means that certain real property more particularly described in the legal description in Exhibit A and improvements thereon. 1.1.22 "State Density Bonus Law" means Government Code sections 65915, et seq., as they exist on the Effective Date. 1.1.23 "Unit" means a residential dwelling unit within the Project to be constructed by Developer pursuant to this Agreement. 1.1.24 "Unrestricted Units" means the Units within the Project to be constructed by Developer to a Household without restriction. 1.1.25 "Very -Low Income Tenant" means persons and families whose income does not exceed fifty (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: 75A-393 1.2.1 Exhibit A — Legal Description of the Property 1.2.2 Exhibit B — Tenant Verification 1.2.3 Exhibit C — Annual Tenant Recertification 1.2.4 Exhibit D — Annual Rental Housing Compliance Report 1.2.5 Exhibit E —Notice of Affordability Restrictions on Transfer of Property 1.2.6 Exhibit F — Parking Management Plan 1.2.7 Exhibit G — Map of Location of Initial Affordable Units 1.2.8 Exhibit H — Density Bonus Setup Fee 2. DEVELOPMENT OF THE PROPERTY 2.1 Project. Developer shall develop, operate, and maintain the Property as a one - hundred and seventy-one (171) Unit mixed use commercial and residential development, with nineteen 19 Affordable Units for Very -Low Income Tenants. 2.2 Density Bonus. The Project shall have one -hundred and seventy-one (171) Units, including nineteen (19) Affordable Units, to be rented, occupied, operated, and maintained pursuant to the terms and conditions of this Agreement. Developer understands and agrees that Developer is utilizing a thirty-five percent (35%) density bonus increase provided by the State Density Bonus Law (127 Base Units x 35% = 45 State Density Bonus Units) for a total of 171 units. Although Developer has a right to construct up to forty-five (45) State Density Bonus Units on the Property, Developer has elected to construct or develop, or otherwise claim a right to construct or develop, no more than forty-four (44) State Density Bonus Units on the Property. 2.3 Development Concessions. Incentives. and Waivers. As set forth in the City entitlements, Developer petitioned for and is hereby granted the following concessions, incentives, and waivers as part of the approval of Density Bonus Agreement No. 2020-01 for the Project: 2.3.1 The onsite parking standards for the Project shall be reduced from 2.15 parking spaces per unit to 1.15 spaces per unit pursuant to California Government Code sections 65915(p)(1), which provides onsite parking at the ratio of one (1) stall for studio or one -bedroom units, and two (2) stalls for two- to three -bedroom units, for a total of 196 onsite parking spaces for the Project. 2.3.2 The General Plan Land Use Element Downtown District Center floor area ratio maximum of 3.0 shall be waived in accordance with Government Code Section 65915(e)(1), as such a maximum floor area for the development site of 4.2 with floor area as defined by California Government Code Section 65917.2(a)(2) shall be permitted for the development site. 75A-394 2.3.3 The Santa Ana Municipal Code Section 41-2011(a) Lined Block Building Type 10-story maximum development standard for this Project shall be waived in accordance with Government Code Section 65915(e)(1), as such sixteen stories shall be a permitted for the Project. 2.3.4 The Santa Ana Municipal Code Section 41-2023(f) Open Space development standard for this Project shall be modified in accordance with Government Code Section 65915(d)(1), as such the common open space shall be provided as roof decks on various building levels for the Project. 2.3.5 The Santa Ana Municipal Code Section 41-2023(i) Massing development standard for this Project shall be modified in accordance with Government Code Section 65915(d)(1), as such the massing ratio for level three shall be permitted at 94 percent for the Project. 2.4 No Further Concessions, Incentives. or Waivers. Developer acknowledges and agrees that the concessions, incentives, and waivers set forth in section 2.3 above fully satisfies any duty City may have under the Santa Ana Municipal Code, the Density Bonus Law, or any other law or regulation to provide any development incentive or to waive any building, zoning, or other requirement in return for providing Affordable Units. By this Agreement, Developer releases any and all claims Developer may have against City in any way relating to or arising from City's obligation to waive requirements of or provide development incentives pursuant to any state, federal, or local law, rule, or regulation applicable to the Project. 2.5 Unrestricted Units. The Project, for purposes of this Agreement, may have no more than one -hundred and fifty-two (152) Unrestricted Units comprised of eighty-five (85) studio units, forty-five (45) one -bedroom units and twenty-two (22) two -bedroom units. Any change to the unit distribution of the Unrestricted Units may affect the comparability of the Affordable Units and is subject to City Manager approval. 2.6 Affordable Units. The Project, for purposes of this Agreement, shall have no less than nineteen (19) Units, which shall be comprised of ten (10) studio units, six (6) one -bedroom units, and three (3) two -bedroom units, designated as Affordable Units pursuant to the terms and conditions of this Agreement. The Affordable Units shall be consistent with all City approvals, comparable in bedroom distribution and amenities to the Unrestricted Units, and shall be located throughout the Project as required under Santa Ana Municipal Code section 41-1602(c)(6). 2.7 Minimum Development Standards for Affordable Units. 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 provided for any Unrestricted Units. 2.8 Permits and Processing; Compliance with Laws. Developer, 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, Developer shall carry out and perform the development, operation, and maintenance of the Project in conformity with all applicable federal, 75A-395 iWa:11:112FA state, and local laws and regulations, and all conditions of approval issued by the City Council and City's Planning Commission for the Project. Any changes to the Project shall be reviewed by the City to determine compliance with this Agreement. If any changes to the Project shall materially alter the ability of Developer to comply with any terms of this Agreement in City's sole determination, then City shall have the option to declare this Agreement null and void in its sole discretion. 2.9 Relocation Prior to Development of Project. If relocation is required prior to the completion of development of the Project, Developer shall have the sole and exclusive responsibility for providing relocation assistance and paying all relocation costs as may be required to comply with applicable federal and state laws and regulations. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), 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 for relocation assistance, benefits and costs prior to the completion of the development of the Project. 2.10 Local Sourcing Plan. Developer agrees to make a good faith effort to encourage contractors and suppliers to hire and procure locally, to the extent that it is cost effective and does not delay the overall project development schedule. 2.11 Mechanic's Liens.• Indemnification. Developer shall take all actions reasonably necessary to remove any future 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 Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. Prior to the recording of this Agreement (or memorandum thereof) pursuant to Section 4.1 below, Developer shall provide evidence from the Title Company of any new recordings against the Property or Project. 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. In addition to any other indemnity provided by Developer under this Agreement, Developer shall indemnify, defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent), 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 Developer or anyone holding the Property or Project, or any part thereof, through or under Developer. AFFORDABILITY 3.1 Total Affordability Term. Each Affordable Unit shall be restricted to use and occupancy by an Eligible Household for a total period of no less than fifty-five (55) years ("Total Affordability Term"). The Total Affordability Term for an Affordable Unit shall commence on 75A-396 the date that the building in which the Affordable Unit is located receives all required occupancy permits from the City. 3.2 Memorializing Commencement of Total Affordability Term. Developer shall keep detailed records of the commencement date of the Total Affordability Term for each Affordable Unit. City shall have the right to review and verify said records to ensure that the commencement date specified by Developer for an Affordable Unit coincides with the date that the initial Affordable Unit received all permits from City required for occupancy of the Unit. In the event that a conflict exists between the date specified by Developer for the commencement of the Total Affordability Term for an Affordable Unit and the date specified by City's issuance of all required permits for occupancy of the Unit, the date specified by City's issuance of all required permits for occupancy of the Unit shall control. 3.3 Levels of Affordability. 3.3.1 Very -Low Income Tenants. Developer covenants that no less than nineteen 19 Affordable Units in the Project shall at all times during the Density Bonus Housing Agreement Term be rented to, or held vacant and available for immediate occupancy by Very -Low Income Tenants, at a rent that does not exceed fifty (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD, including an allowance for utilities. 4. OPERATION OF THE PROJECT BY DEVELOPER 4.1 Payment of Density Bonus Setup Fee and Recording of Documents. The Developer must pay the Density Bonus Setup Fee in the amount of fifty-six thousand six hundred ninety- seven dollars and twelve cents ($56,697.12) prior to the issuance of building permits for the Project. The amount of the Density Bonus Setup Fee is based on the calculation attached herewith as Exhibit H and incorporated herein by this reference. After the payment of the Density Bonus Setup Fee, but before issuance of building permits for the Project, Developer and the City shall record or cause to be recorded in the Official Records for Orange County, California, an executed original of this Agreement. City shall cooperate with Developer in promptly executing in recordable form this Agreement. The date of recording of the Agreement shall be the Effective Date of the Agreement. Upon the date of recording, the terms and conditions of this Agreement shall be binding upon and run with the Property and the Project. It is the express intent and agreement between the Parties that this Agreement shall remain binding and enforceable against the Property, the Project, and the Units to ensure compliance with the State Density Bonus Law and City Density Bonus Law, and to ensure the continued supply of Affordable Units in the Project. 4.2 Rental of Units. Upon the completion of construction of the Project and receipt by Developer of all required permits for the occupancy of the Units, Developer shall rent or cause to be rented each Affordable Unit for the Total Affordability Term for such Affordable Unit in accordance with the terms and conditions set forth in this Agreement, which provide among other terms and conditions for the rental of each Affordable Unit at an Affordable Rent to an Eligible Household for the Total Affordability Term. 75A-397 4.3 Location of Affordable Units. During the Density Bonus Housing Agreement Term, the Affordable Units shall be dispersed throughout the Project in accordance with the terms and conditions set forth in this Agreement. The Affordable Units shall be permitted to float among all one -hundred and seventy-one (171) apartment Units in the Project. The units shall be evenly distributed among all levels of the project in the one building that comprises the Project. The location of the first nineteen (19) Affordable Units to be occupied is attached herewith as Exhibit G and incorporated herein by reference. Any future changes in the distribution of the Affordable Units requires prior written approval from the City Housing Division. 4.4 Occupancy Levels. The number of persons permitted to occupy each Affordable Unit shall not exceed the occupancy permitted pursuant to Health and Safety Code section 50052.5(h). In the event that a household residing in an Affordable Unit exceeds the permitted number of persons, then that household shall be placed on a waiting list for the appropriate -sized unit and be eligible for transfer when an appropriate -sized unit becomes available. The household will be placed on the waiting list for up to one -hundred and eighty (180) days. If an appropriate - sized unit does not become available during the 180 days, the Developer will have grounds to terminate that household's lease. If the household refuses to transfer to an appropriate -sized unit then the Developer will also have grounds to terminate that household's lease. 4.4.1 Written Notification. Developer shall provide written notification informing the household that: it is over -occupancy; has been placed on a waiting list for up to one -hundred and eighty (180) days; the expiration date of the waiting list; and the terms for terminating the lease. A written status update will be provided to the household at one - hundred and twenty (120) days, ninety (90) days, sixty (60) days and thirty (30) days if applicable. 4.5 Use of the Property. All uses conducted on the Property, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to all applicable provisions of the Santa Ana Municipal Code and other applicable federal, state, and local laws, rules, and regulations. The Project shall at all times during the term of this Agreement be used as an apartment complex and none of the Affordable Units in the Project shall at any time be utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest home, or be converted to condominium ownership. All of the community facilities and any social programs provided to the Project's residents shall be available on an equal, nondiscriminatory basis to residents of all Units at the Project. 4.6 Maintenance. Developer shall, at all times during the term of this Agreement, cause the Property and the Project to be maintained in a decent, safe and sanitary manner, regardless of cause of the disrepair. Developer shall be fully and solely responsible for costs of maintenance, repair, addition and improvements. City, and any of its employees, agents, contractors or designees shall have the right to enter upon the Property at reasonable times and in a reasonable manner to inspect the Project. 4.7 Marketina and Resident Selection Plan. Each Affordable Unit shall be leased to Eligible Households selected by Developer who meet all of the requirements provided herein. 75A-398 Prior to Certificate of Occupancy, Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a marketing program and resident selection plan for the leasing of the Affordable Units at the Project ("Marketing Program"). The leasing of the Affordable Units shall thereafter be marketed in accordance with the Marketing Program as the same may be amended from time to time with City's prior written approval, which approval shall not unreasonably be withheld. Upon request, Developer shall provide City with periodic reports with respect to the leasing of the Housing Units. 4.7.1 The Marketing Program shall include, but is not limited to, marketing and community outreach activities, proposed tenant selection criteria, occupancy standards, income requirements, timeline and details for outreach and marketing, data collection, record keeping and monitoring, procedures for complaints, and compliance assessment. Components of the resident selection plan shall include, but are not limited to, the application process, interview procedure, apartment offer and assignment, rejected applications, and wait list management. All requirements set forth herein shall be incorporated in the Marketing Program. 4.8 Rental Lease Agreement. Developer shall prepare and obtain City's approval, which approval shall not be unreasonably withheld, of a rental lease agreement ("Lease Agreement"). All Lease Agreements must 1) identify the names and ages of all members of the household who will occupy the Affordable Unit; and 2) state that the Household's right to occupy the Affordable Unit is subject to compliance with the Median Income requirements, adjusted for family size appropriate to the unit, as periodically published by HCD. All Lease Agreements must be consistent with the terms contained in this Density Bonus Agreement. 4.8.1 Prohibited Lease Terms. The Lease Agreement may not contain any of the following provisions: (a) Agreement to be Sued. Agreement by the tenant to be sued, to admit to guilt, or to a judgment in favor of the Developer in a lawsuit brought in connection with the lease; (b) Treatment of Prouerty. Agreement by tenant that the Developer may take, hold, or sell personal property of household members without notice to tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing unit after the tenant has moved out of the unit. The Developer may dispose of this personal property in accordance with State law; (c) ExcusingDeveloper eveloper of Responsibility. Agreement by the tenant not to hold the Developer of the Developer's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Waiver of Notice. Agreement of the tenant that the Developer may institute a lawsuit without notice to the tenant; (e) Waiver of Legal Proceedings. Agreement by the tenant that the Developer may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; 10 75A-399 (f) Waiver of a Jury Trial. Agreement by the tenant to waive any rights to a trial by jury; (g) Waiver of Right to Appeal Court Decision. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Tenant Chargeable with Cost of Legal Action Regardless of Outcome. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the Developer against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 4.9 Selection of Tenants. 4.9.1 Developer shall be responsible for the selection of tenants for the Affordable Units in compliance with lawful and reasonable criteria and the requirements of this Agreement. 4.9.2 Local preference for Santa Ana residents and workers in tenant selection for the Affordable Units shall be a requirement of the Project. Subject to applicable laws and regulations governing nondiscrimination and preferences in housing occupancy required by the State of California, the Developer shall give preference in leasing the Affordable Units to households that live and/or work in the City of Santa Ana or who have an active Housing Choice Voucher issued by the Housing Authority of the City of Santa Ana or any other Public Housing Authority. 4.9.3 All applicants will be screened and "lotterized." A waiting list will be created from a lottery generated from the initial pool of rental applications. The waiting list will track applicant name and contact information, lottery number (or designated number after the initial lottery), household income, household size, status of application, and any other information deemed necessary. The waiting list will be maintained as an electronic file and available for audit by the City of Santa Ana in accordance with resident selection procedures as set forth herein. 4.9.4 Prior to the rental or lease of an Affordable Unit to a tenant(s), Developer shall require the tenant(s) to execute a written lease and to complete a Tenant Income Verification Form (in substantially the form attached hereto as Exhibit B) certifying that the tenant(s) occupying the Affordable Unit is/are an Eligible Household and otherwise meet(s) the eligibility requirements established for the Affordable Unit. Developer shall verify the income of the tenant(s) as set forth herein. 4.10 Income Verification and Certification. Developer agrees to make a good faith effort to verify that the income and asset statement provided by an applicant in an income certification is accurate by taking, at a minimum, at least one of the following steps as a part of the verification process: (1) obtain three months consecutive pay stubs for the most recent pay period, (2) obtain an income tax return for the most recent tax year, (3) obtain an income verification form from the applicant's current employer, (4) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or 11 75A-400 (5) if the applicant is unemployed and has no such tax return, obtain another form of independent verification. 4.10.1 Gross Household Income. Gross household income means all income from whatever source from all Adult Household members, which is anticipated to be received during the 12-month period following the date of the determination of Gross Household Income. The applicable sources of income are defined in California Code of Regulations Title 25 Housing and Community Development Section 6914. 4.10.2 Annual Recertification. Developer agrees to recertify household eligibility annually. Notification of Annual Tenant Recertification shall be sent to the household in substantially the form attached hereto as Exhibit C. An Annual Rental Housing Compliance Report ("Annual Compliance Report") shall be sent to the City in substantially the form attached hereto as Exhibit D. The Annual Compliance Report shall be due to the City within 30 days of the anniversary of the commencement of the Total Affordability Term, which is the date that each building receives all required occupancy permits from the City. 4.10.3 Continued Income Qualification and Vacated Affordable Units. If the annual recertification demonstrates that a previously eligible tenant's gross household income exceeds the Median Income for the Affordable Unit, the pertinent actions from the following list must be taken: (a) The Developer may offer to rent the unit to the previously, but no longer, Eligible Household as an Unrestricted Unit without any limitations on rental rates. In that case, the Developer must then make available for rent to an Eligible Household another unit within the Project that meets the size and location requirements for Affordable Units under this Density Bonus Agreement. If there are no vacant units meeting those requirements, then the next available unit within the Project which does meet those requirements must be rented to an Eligible Household. (b) If the no longer Eligible Household either moves to another Unrestricted Unit within the Project or leaves the Project altogether, then the vacated Affordable Unit or, at Developer's election any other Unrestricted Unit within the Project which meets the size and location requirements for Affordable Units under this Density Bonus Agreement and has the same number of bedrooms as the vacated unit shall be rented as an Affordable Unit to an Eligible Household. 4.11 Monitoring and Recordkeeping. Throughout the Term of this Agreement, Developer shall annually complete and submit to City a Certification of Continuing Program Compliance in the form provided by City. Developer agrees to pay a reasonable fee, as set by City resolution, for the purpose of paying the actual costs associated with the City's obligation to monitor Developer's compliance with the affordability restrictions contained in this Agreement related to the Affordable Units, not to exceed monitoring costs for up to nineteen (19) Affordable Units. Representatives of City shall be entitled to enter the Property if necessary after review of 12 75A-401 above documentation, upon at least forty-eight (48) hour notice, to monitor compliance with this Agreement, and shall be entitled to inspect the records of the Project relating to the Affordable Units and to conduct an independent audit or inspection of such records at a location within the City that is reasonably acceptable to the City. Developer agrees to cooperate with City in making the Property and the records of the Project relating to the Affordable Units available for such inspection or audit. Developer agrees to maintain each record of the Project for no less than five (5) years after creation of each such record. Developer shall allow the City to conduct annual inspections of each of the Affordable Units on the Property after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within ten (10) Business Days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 4.12 Notice of Affordability Restrictions on Transfer of Property. In the event Developer wishes to sell or transfer the Project during the Total Affordability Term, the City and the Developer shall execute and deposit into escrow a Notice of Affordability Restrictions on Transfer of the Property as contained herein (Exhibit E). The sale or transfer of the Property shall not be effective unless and until the City and the transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Developer to the transferee. 4.13 [Intentionally Reserved) 4.14 Alternative Transportation and Energy Source Resource Conservation, ana LtShi.) Certification. While not a condition of the project's Density Bonus, in recognition of the City's desire to optimize the energy efficiency of the project, Developer agrees to consult with the project design team, a CABEC certified 2016 Certified Energy Analyst, a LEED AP Homes (low-rise and mid -rise), LEED AP BD+C (high rise), National Green Building Standard (NGBS) Green Verifier, or GreenPoint Rater (one person may meet both of these latter qualifications) early in the project design process to evaluate a building energy model analysis and identify and consider energy efficiency or generation measures. Prior to the meeting, the energy analyst shall complete an initial energy model based on either current T24 standards or, if the project is eligible, the California Utility Allowance Calculator using best available information on the project. To the extent financially feasible for the project, Developer agrees to incorporate and optimize energy efficient building materials, methods, and amenities. 4.15 Onsite Property Manager. The Project shall have 24-hour on -site Property Management services and personnel. Up-to-date 24-hour contact information for the on -site personnel shall be provided to the following City agencies on an ongoing basis: (a) Police Department (b) Fire Department (c) Planning and Building Agcncy (d) Community Development Agency 4.16 Emergency Evacuation Plan. Developer shall submit and obtain approval of an Emergency Evacuation Plan (the EEP) from City Police and Fire Protection agencies prior to 13 75A-402 issuance of a Certificate of Occupancy. Up-to-date 24-hour emergency contact information for the on -site personnel shall be provided to the City on an ongoing basis and the approved EEP shall be kept onsite and also be submitted to the following City Agencies: (a) Police Department (b) Fire Department (c) Planning and Building Agency (d) Community Development Agency 4.17 Crime Free Housing. Developer shall work with City staff to develop a crime free housing policy, procedure, and design plan (the "CFH Plan"). Developer shall submit and obtain approval from the PBA that the CFH Plan meets the requirements of this Subsection 4.17 prior to issuance of the Certificate of Occupancy. The approved CFH Plan shall be implemented and administered by Property Management. 4.18 Parking Management Plan. Developer has provided a parking management plan ("PMP"), attached herewith as Exhibit F and incorporated herein by reference, which indicates that, if needed, valet service for on -site vehicle stacking for the entire parking structure could create an additional 122 parking spaces, raising the total onsite residential parking spaces from 196 to 318 and raising the total parking supply in the parking structure from 490 to 612 spaces. In addition, the PMP indicates that an additional 50 offsite parking spaces at a nearby City -owned parking structure could be leased on a long term basis. The PMP shall be adhered to and be enforced by the Project at all times. Additionally, the City may enforce the provisions of the PMP against the Developer in the City's sole discretion. [INTENTIONALLY RESERVED] 6. TERM OF THIS AGREEMENT 6.1 Tenn. The term of this Agreement ('Density Bonus Housing Agreement Term") shall commence on the Effective Date and shall continue until the date that is fifty-five (55) years after the City issues the last certificate of occupancy for the building in which the Affordable Units are located. DEFAULT AND TERMINATION: INDEMNIFICATION 7.1 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. 14 75A-403 7.2 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 Parry. 7.3 Indemnification. In addition to any other indemnity specifically provided in this Agreement, Developer agrees to defend (with counsel of City's choosing and the consent of Developer, which shall not be unreasonably withheld, and which may be joint defense counsel upon City's and Developer's consent) indemnify and hold harmless City and its respective officers, officials, agents, employees, representatives, and volunteers (collectively, "Indemnitees") from and against any loss, liability, claim, or judgment arising from any act or omission of Developer in connection with its obligations under this Agreement, except to the extent caused by the active negligence or willful misconduct of Indemnitees. 8. ASSIGNMENT: COVENANTS RUN WITH THE LAND 8.1 Assignment by Developer. 8.1.1 Prohibited Transfers or Assignments. Except as authorized in Section 8.1.2 below, Developer shall not sell, transfer, or assign the Property or Project in whole or in part, or transfer or assign Developer's rights and obligations in this Agreement, without City's prior written approval, which shall not be unreasonably withheld ("Permitted Transfer"). In connection with Permitted Transfer, Developer shall: (i) notify City in writing, of the sale, transfer, or assignment of all or any portion of the Property, and (ii) deliver to City an assignment and assumption agreement (or other agreement) in a form approved by City and executed by Developer and its transferee/assignee pursuant to which Developer's transferee/assignee assumes all of Developer's covenants and obligations set forth herein with respect to the Property or the portion thereof so transferred. Any request for transfer or assignment of the Agreement by Developer shall require the payment of fees or a deposit to compensate the City for approximate expenses incurred by Developer to City, as applicable, for the City's review of the request. Upon the delivery of the assignment and assumption agreement as provided for above for a Permitted Transfer, or in the event of a sale of the Property as provided for in Section 8.1.1, Developer shall be released from any future obligations under this Agreement. 8.1.2 Sale of Property. Developer agrees and declares that the Property and the Project shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, operated, sold, and approved subject to all obligations set forth or incorporated in this Agreement, all of which are for the purpose of enhancing and protecting the value and attractiveness of the Property and the Project. All of the obligations set forth or incorporated in this Agreement shall constitute covenants which run with the land and shall be binding on Developer and its successors and assigns, and all parties having or acquiring any right, title or interest in, or to any part of the Property or Project. Developer further understands and agrees that the Density Bonus permit approvals received for this Project have been made on the condition that Developer and all subsequent owners, or other successors and assigns of the Property and/or Project lease and rent the Affordable Units in accordance with the terms and conditions stipulated in Sections 4, 5 and 6 15 75A-404 IWOMMUMMINFA of this Agreement for a term of fifty-five (55) consecutive years commencing upon the date of issuance of the last certificate of occupancy for the Project. 8.1.3 Subsequent Assignment. As used in this Agreement, the term "Developer" shall be deemed to include any such transferee or assignee after the date such sale, transfer, or assignment occurs in compliance with this Agreement. 8.1.4 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. 8.2 Covenants Run with the Land. The Property shall be held, sold, conveyed, hypothecated, encumbered, used, occupied and improved subject to the covenants, conditions, and restrictions set forth herein. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth in this Agreement shall run with the Property and shall be binding upon Developer and all persons having any right, title or interest in the Property, or any part thereof, their heirs, and successive owners and assigns, shall inure to the benefit of City and its successors and assigns, and may be enforced by City and its successors and assigns. The covenants established in this Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of City and its successors and assigns, and the parties hereto expressly agree that this Agreement and the covenants herein shall run in favor of City, withoutregard 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 City which real property shall be deemed the benefited property of such covenants and this Agreement shall create equitable servitudes and covenants appurtenant to all real property owned by City and running with the Property in accordance with the provisions of Civil Code Section 1468. Furthermore, all of the covenants, conditions, and restrictions contained herein shall also constitute easements in gross running in favor of City. City is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. Developer hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that the Developer's interest in the Property is rendered less valuable thereby. Developer 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 Property by the citizens of City and by furthering the health, safety, and welfare of the residents of City. 9. MISCELLANEOUS 9.1 Entire Agreement. This Agreement and all of its exhibits and attachments set forth and contain the entire understanding and agreement of the parties with respect to the density bonus of the Project, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be 16 75A-405 admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 9.2 Amendment. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance approved by the City Council and signed on behalf of each party. Any requested alteration, change or modification of the Agreement by Developer shall require the payment of fees or deposit by Developer to City, as applicable, for the City's review of the request. Each alteration, change, or modification to this Agreement shall be recorded against the Property in the Official Records of Orange County, California. 9.3 Notices. 9.3.1 Delivery. 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 below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) two (2) 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 Federal Express), charges prepaid and delivery scheduled next -day to the recipient named below, provided that the sending party receives a confirmation of delivery from the delivery service provider; or (v) the first business day following the date of transmittal of any facsimile, provided confirmation of successful transmittal is retained by the sending Party. All notices shall be addressed as follows: If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 If to Developer: Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 9.3.2 Change of Address. Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or 17 75A-406 representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 9.4 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder 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. 9.5 Interpretation and Governing Law. This Agreement and any dispute hereunder shall 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 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. 9.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 9.7 Singular 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. 9.8 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 Developer, all obligations of such Developer under this Agreement shall be joint and several, and the default of any such Developer shall be the default of all such Developers. 9.9 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 9.10 Computation of 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 except Saturdays, Sundays, official State holidays as recognized in Government Code Section 19853(a) or successor statute, and any days in which Santa Ana City Hall is closed for business. 9.11 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. 9.12 Non -Discrimination. In performing its obligations under this Agreement, Developer shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other related 18 75A-407 activities. Developer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 9.13 Third Party Beneficiaries. No person or entity, other than City and Developer shall have any right of action based upon any provision of this Agreement. 9.14 Force Maieure. 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, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), court actions (such as restraining orders or injunctions), or other causes beyond the Party's control, including delays by any governmental entity (although the City may not benefit from this provision for a delay that results from City's failure to perform its obligations under this Agreement), or an insurance company of either party. If any such events shall occur, the term of this Agreement and the time for performance by either Party of any of its obligations hereunder may be extended by the written agreement of the Parties for the period of time that such events prevented such performance. 9.15 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. 9.16 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions 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 approved pursuant to this Agreement during ownership of the Property or any portion thereof. 9.17 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. 9.18 Jurisdiction and Venue. Any action at law or in equity 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, and the Parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. 9.19 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 19 75A-408 Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property and the Developer of such property. 9.20 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. City hereby authorizes City Manager to take such other actions and negotiate and execute any additional agreements as may be necessary or proper to fulfill the City's obligations under this Agreement. The City Manager may delegate her or his powers and duties under this Agreement to an authorized management level employee of the City. 9.21 Estoppel Certificate. Within ten (10) business days following a written request by any of the Parties, the other Party shall execute and deliver to the requesting Party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding Party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification, except as may be represented by the requesting Party, and that there are no uncured defaults in the performance of the requesting Party, except as may be represented by the requesting Party. 9.22 No Subordination. City's approval of the necessary land use entitlements that authorize Developer to develop, operate, and maintain the Project was based upon Developer's obligation to provide the Affordable Units pursuant to the State Density Bonus Law, City Density Bonus for Affordable Housing, and the terms and conditions of this Agreement. For the Term of the Density Bonus Housing Agreement, this Agreement shall have priority over any and all mortgages, deeds of trust, and other similar forms of secured financing recorded against the Property or any portion thereof. Developer expressly understands and acknowledges that state law requires preservation of affordability covenants in connection with the approval of this density bonus project. 9.23 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, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing Party. 9.24 Authority to Execute. The person or persons executing this Agreement on behalf of each Party warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants 20 75A-409 IWOMMUMMINFA and represents that he or she/they has/have the authority to bind the Party to the performance of its obligations hereunder. {Signatures on following page} 21 75A-410 IN WITNESS WHEREOF, the parties hereto have caused this Density Bonus Housing Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Daisy Gomez Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney 4By:an4Hod0g—e Attorney tCi RECOMMENDED FOR APPROVAL: Steven A. Mendoza Executive Director Community Development Agency CITY OF SANTA ANA Kristine Ridge City Manager 22 NC. 75A-411 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 23 75A-412 EXHIBIT "A" 3RD & BRAADWAY 201 W. 3RD STREET LEGAL DESCRIPTION THOSE CERTAIN PARCELS OF LAND IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING LOTS 2 AND 3 AND A PORTION OF LOTS 1, 4, 5, 6 ALL IN BLOCK 12 TOGETHER WITH LOTS 2, AND A PORTION OF LOTS 3 AND 6 ALL IN BLOCK 11 AND TOGETHER WITH A PORTION OF SYCAMORE STREET OF PLAT OF THE TOWN OF SANTA ANA SANTIAGO DE SANTA ANA RANCHO LOS ANGELES CO. CALIFORNIA RECORDED IN BOOK 2 PAGES OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 1: POINT OF BEGINNING (POB) BEING THE CENTERLINE INTERSECTION OF N. BRAADWAY (80, WIDE AND FORMERLY WEST STREET) AND 3RD STREET (60' WIDE) AS SHOWN ON SAID PLAT; THENCE ALONG THE CENTERLINE OF 3RD STREET SOUTH 89°28'55" EAST 40.00 FEET; THENCE AT RIGHT ANGLE TO SAID CENTERLINE NORTH 00°37'20" EAST 29.98 FEETTO THE SOUTHWESTERLY CORNER OF SAID LOT 1 OF SAID BLOCK 12; SAID SOUTHWESTERLY CORNER ALSO BEING THE NORTHEASTERLY RIGHT OF WAY CORNER OF 3RD & BRAADWAY AND THE TRUE POINT OF BEGINNING (TPOB); THENCE ALONG THE WESTERLY BOUNDARY OF SAID LOTS 2, 3 AND 6 OF SAID BLOCK BEING ALSO THE EASTERLY RIGHT OF WAY OF SAID BRAODWAY NORTH 00037'20" EAST 145.00 FEET TO ALINE 5' SOUTHERLY AND PARALLEL TO THE NORTH LINE OF SAID LOTS 5 AND 6 OF SAID BLOCK 12; THENCE ALONG SAID PARRALLEL LINE SOUTH 89°29'14" EAST 247.10 FEET TO THE PROLONGATION OF A LINE THAT IS 3 FEET WESTERLY AND PARALLEL TO THE EASTERLY BOUNDARY OF SAID LOTS 1, 4, 5 OF SAID BLOCK 12; THENCE SOUTH 00°37'20" WEST 144.99 FEET ALONG SAID PARALLEL LINE TO THE SOUTHERLY BOUNDARY OF SAID LOTS 1 AND 2 OF SAID BLOCK 12 SAID SOUTHERLY BOUNDARY BEING THE NORTHERLY RIGHT OF WAY OF SAID 3RD STREET; THENCE ALONG SAID SOUTHERLY BOUNDARY AND SAID NORTHERLY RIGHT OF WAY LINE NORTH 89°29'26" WEST 247.10 FEETTO THE TRUE POINT OF BEGINNING. MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF CONTAINING 35,828 SQUARE FEET, MORE OR LESS PARCEL 2: POINT OF BEGINNING (POB) BEING THE CENTERLINE INTERSECTION OF N. BRAADWAY (80' WIDE AND FORMERLY WEST STREET) AND 3RD STREET (60' WIDE) AS SHOWN ON SAID PLAT; THENCE ALONG THE CENTERLINE OF SAID 3RD STREET SOUTH 89°28'55" EAST 347.10 FEET; THENCE AT RIGHT ANGLE TO SAID CENTERLINE NORTH 00°36'57" EAST 29.99 FEETTO A POINT OF INTERSECTION OF A LINE 3 FEET WESTERLY AND PARRALLEL TO SAID LOTS 2, 3 AND 6 OF SAID BLOCK 11 WITH THE PROLONGATION OF THE SOUTHERLY BOUNDARY OF SAID LOT 2 OF SAID BLOCK 11 SAID SOUTHERLY BOUNDARY BEING THE NORTHERLY RIGHT OF WAY OF SAID 3RD STREET, SAID POINT BEING THE TRUE POINT OF BEGINNING (TPOB); THENCE NORTH 00°36'57" EAST 144.99 FEET ALONG SAID PARALLEL LINE TO A LINE 5 FEET SOUTHERLY AND PARALLELTO SAID LOT 6 OF SAID BLOCK 11; THENCE SOUTH 89°28'55" EAST 127.93 FEET ALONG SAID PARRALLEL LINE TO THE PROLONGATION OF THE EASTERLY BOUNDARY LINE OF SAID LOT 6 OF SAID BLOCK 11; THENCE SOUTH 00°33'48" WEST 45.00 FEET ALONG SAID PROLONGATION AND SAID EASTERLY BOUNDARY TO THE NORTHERLY BOUNDARY LINE OF SAID LOT 3 OF SAID BLOCK 11; THENCE NORTH 89°28'48" WEST 15.00 FEET ALONG SAID NORTHERLY BOUNDARY LINE TO A LINE 15 FEET WESTERLY AND PARRALLEL TO THE EASTERLY BOUNDARY LINE OF SAID LOT 3 OF SAID BLOCK 11; THENCE ALONG SAID PARRALLEL LINE SOUTH 00°33'48" WEST 49.99 FEETTO THE NORTHERLY LINE OF SAID LOT 2 OF SAID BLOCK 11; THENCE SOUTH 89°28'48" EAST 15.00 FEET ALONG SAID NORTHERLY LINE TO THE EASTERLY BOUNDARY LINE OF SAID LOT 2 OF SAID BLOCK 11; THENCE SOUTH 00°33'48" WEST 49.99 FEET ALONG SAID EASTERLY LINE TO THE SOUTHERLY LINE OF SAID LOT 2 OF SAID BLOCK 11; SAID SOUTHERLY BOUNDARY LINE ALSO BEING THE NORTHERLY RIGHT OF WAY LINE OF SAID 3RD STREET; THENCE ALONG SAID NORTHERLY RIGHT OF WAY LINE AND SAID SOUTHERLY BOUNDARY LINE AND SAID PROLONGATION OF SAID LOT 2 NORTH 89*06.47" WEST 128.06 FEET TO THE THE TRUE POINT OF BEGINNING. MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF CONTAINING 17,807 SQUARE FEET, MORE OR LESS DEREK J. McGREGOR, PLS #6496 EXP. 6/30/2021 1:WI \126b03 vm nna Maln\legalp363-03 legal oexrlplon'fxblbll A�Do EXHIBIT B TENANT VERIFICATION 24 75A-415 TENANT INCOME VERIFICATION FORM Head of Household (Print Name): Address: Telephone Number: Home: Work: Cell: Date of Birth: Social Security #: Household Composition List All Household Members Living in the Inclusionary Unit Dependent Name Sex Age (Y/N) Social Security # List additional household members on a separate sheet of paper. Tenant Income Verification Form Page 1 Santa Ana, California August 8, 2014 75A-416 TENANT INCOME VERIFICATION FORM Monthly Gross Income " List All Sources of Income of All Household Members Living in the Inclusionary Unit Part 1: Earned Income Other Adult Head of Household Household Members Total 1. Gross amount, before payroll deductions of wages, $ $ $ salaries, overtime pay, commissions, fees, tips and bonuses. 2. Net income from business. $ $ $ 3. Social security, annuities, insurance policies, $ $ $ pension/retirement funds, disability or death benefits received periodically. 4. Payment in lieu of earnings, such as $ $ $ unemployment, disability compensation, worker's compensation and severance pay. 5. Public assistance, welfare payments $ $ $ 6. Alimony, child support, other periodic allowances $ $ $ 7. Regular pay, special pay and allowances of $ $ $ members of the Armed Forces 8. Other $ $ $ Subtotal: Monthly Earned Income $ Total Monthly Earned Income x 12 = $ Total Annual Household Gross Earned Income Tenant Income Verification Form Page 2 Santa Ana, California August 8, 2014 75A-417 TENANT INCOME VERIFICATION FORM Monthly Gross Income " List All Sources of Income of All Household Members Living in the Inclusionary Unit Part 2: Investment Income Total Other Adult Household Head of Household Investment Household Members Income 1. Interest paid on Bank and Savings accounts $ $ $ 2. Dividends and other payments from stocks and $ $ $ bonds 3. Income from real property (i.e. rental property) $ $ $ 4. Other (describe) $ $ $ Subtotal: Monthly Investment Income: $ Total Monthly Investment Income x 12 = $ Total Annual Household Investment Income `Note: The following items are not considered income: casual or sporadic gifts; amounts specifically for or in reimbursement of medical expenses; lump sum payments such as inheritances, insurance payments, capital gains and settlement for personal or property losses; educational scholarships paid directly to the student or educational institution; special pay to a serviceman head of family away from home and under hostile fire; relocation payments under federal, state or local law; foster child care payments; value of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of amount actually charged the eligible household; payments received pursuant to participation in the following programs: VISTA, Service Learning Programs, and Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent Program, Older American Community Services Program, and National Volunteer Program to Assist Small Business Experience. Tenant Income Verification Form Page 3 Santa Ana, California August 8, 2014 75A-418 TENANT INCOME VERIFICATION FORM Assets ** List the Current Value of All Assets of All Household Members Living in the Inclusionary Unit If the Asset generates income, that income must be specified In Part 2 above Head of Household Other Adult Household Members Total Value of Value Value Assets 1. Bank and Savings accounts $ $ $ 2. Stocks and bonds $ $ $ 3. Real property (i.e. rental property) $ $ $ 4. Other (describe) $ $ $ Total Asset Value $ **Note: Necessary items, such as furniture and automobiles, used for personal use are excluded from household assets. Collections of items for hobby, investment or business purposes must be included in household assets. If the total value of household assets exceeds $5,000, the calculation of the household's annual income shall include the greater of the actual amount of income, if any, derived from all of the household assets; or 10% of the total value of the assets. Tenant Income Verification Form Page 4 Santa Ana, California August 8, 2014 75A-419 TENANT INCOME VERIFICATION FORM If the total asset value exceeds $5,000, perform the calculations in the following table. If the total asset value is less than $5,000, the amount of investment income to be included in annual household income is $0. Calculation of Investment Income to be Included in Annual Household Income 1. Total Annual Household Investment Income $ 2. Total Asset Value $ x 10% $ The Greater of #1 or #2 = Investment Income to be Included in Annual Household Income $ Calculation of the Household's Total Annual Income Total Annual Household Gross Earned Income Total Investment Income to be Included in Annual Household Income Total Household Income Documentation Attach True Copies of the Relevant Documents Listed Below Paycheck stubs from two most recent pay periods Employment verification Income tax return Social security verification Alimony/child support verification Other (Describe) Bank/Savings account verification Self-employment verification Unemployment verification Welfare verification Disability income verification Tenant Income Verification Form Page 5 Santa Ana, California August 8, 2014 75A-420 0aan17i'VikI This Affidavit is made with the knowledge that it will be relied upon by the City of Santa Ana, our landlord and the owner of our apartment building, to determine maximum income for eligibility. (1/we) warrant that all information set forth in this document is true, correct and complete and based upon information (1/we) deem reliable and based upon such investigation as (1/we) deemed necessary. (I/We) acknowledge that (1/we) have been advised that the making of any misrepresentation or misstatement in this affidavit will constitute a material breach of (my/our) rental agreement with the property owner to rent the unit and will additionally enable the property owner to initiate and pursue all applicable legal and equitable remedies with respect to the unit and to me/us. (I/We) do hereby swear under penalty of perjury that the foregoing statements are true and correct and that this affidavit has been executed as of the date specified below by each adult member of the household which intends to occupy an Inclusionary Unit located at Signature Date Printed Name Executed at , Santa Ana, California Signature Printed Name Executed at Date Santa Ana, California ,Santa Ana, California. Affidavit Page 6 Santa Ana, California August 8, 2014 75A-421 1OVA :11:31dr1 EXHIBIT C ANNUAL TENANT RECERTIFICATION 25 75A-422 WNIM11:310/ ANNUAL TENANT RECERTIFICATION 191111 WY61W9e1► I reve1► let AFFORDABLE RENTAL HOUSING PROGRAM Date: Tenant Name: Unit Address: Dear In accordance with the requirements imposed by the City of Santa Ana (City), and your lease, the City requires that we review your income and family composition every year. To complete our review, the Property Owner or Property Manager will set up a meeting with you to receive the necessary information. When you attend the meeting with the Property Owner or Property Manager you must bring documents that verify the income of all the adult members of your household. This information can include income tax returns, employment verification, wage statements, interest statements, and/or unemployment compensation statements. Cooperation with the recertification requirement is a condition of continuing tenancy in an Inclusionary Unit. You must report the required information to enable the Property Owner to process the recertification by Month/Day. Sincerely, Property Manager / Property Owner Annual Tenant Recertification Form Santa Ana, California Page 1 August 8, 2014 75A-423 EXHIBIT D ANNUAL RENTAL HOUSING COMPLIANCE REPORT 26 75A-424 ui 0 a O a t O cc w Y_ C w mm a `O Q 0 u Y D w E O C 3 J o o EXHIBIT E NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY 27 75A-426 EXHIBIT E NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY NOTICE IS HEREBY GIVEN that the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, has entered into a Density Bonus Agreement with , a ("Property Owner"). The Density Bonus Agreement imposes income and affordability covenants on designated Affordable Units with the Project located at , Santa Ana, Orange County, Assessor's Parcel Number and further described in the legal description provided in Exhibit A to the Density Bonus Agreement. The Density Bonus Agreement was recorded as Document/histrnment Number , and shall remain in effect until 120 (Insert date of the termination of the Affordability Period). The Density Bonus Agreement imposes the following income and affordability restrictions on the Affordable Units. Number of Bedrooms Very -Low Low Income Income Households Households Studio Units One -Bedroom Units Two -Bedroom Units Three -Bedroom Units Four -Bedroom Units In the event the Property Owner wishes to sell or transfer the Project during the Affordability Period, the City and the Property Owner shall execute and deposit into escrow this Notice of Affordability Covenants on Transfer of the Property. The sale or transfer of the Property shall not be effective unless and until the City and transferee execute the documents necessary to transfer the Density Bonus Agreement obligations from the Property Owner to the transferee. This Notice of Affordability Covenants on Transfer of the Property in no way modifies the provisions of the Density Bonus Agreement. In the event of any conflict between this Notice of Affordability Covenants on Transfer of the Property and the Density Bonus Agreement, the terms of the Density Bonus Agreement shall prevail. IN WITNESS WHEREOF, the Parties hereto have duly executed this Notice of Affordability Restrictions on Transfer of Property as of the dates set forth below. [Signatures on Following Pages] 75A-427 SIGNATURE PAGE TO NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY APPROVED AS TO LEGAL FORM: Ryan O. Hodge Assistant City Attorney CITY: CITY OF SANTA ANA A California Charter City and Municipal Corporation Name: Kristine Ridge Its: City Manager Date: 75A-428 SIGNATURE PAGE TO NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY PROPERTY OWNER: 0 Name: Its: Date: 75A-429 EXHIBIT F PARKING MANAGEMENT PLAN 28 75A-430 URBAN September 9, 2020 Mr. Michael F. Harrah Caribou Industries, Inc. 1103 North Broadway Santa Ana, CA 92701 SUBJECT: 3RD & BROADWAY PARKING ASSESSMENT (REVISED) Dear Mr. Michael F. Harrah: Urban Crossroads, Inc. is pleased to provide the following Parking Assessment for the 3rd & Broadway (Project) located on the northeast corner of 3"d Street and Broadway in the City of Santa Ana. The Project is proposed to include the development of up to 171 residential units, a 75-room hotel, and 13,419 square feet of commercial space (including retail and food/beverage establishments), and rooftop amenities ancillary to residential and hotel uses. Of the residential units 19 (eleven percent) will be reserved for very low-income households for a period of 55 years, therefore the parking ratios for affordable housing specified in California Government Code Section 65915 are applicable. To demonstrate that adequate parking supply exists for Project, this parking assessment provides a review of the parking requirements and estimates the peak parking demands for the Project land uses. A total of 279 parking spaces are dedicated to the mixed -use development (residential) and hotel as shown in Exhibit A. In addition, this Parking Assessment was be developed to support an Addendum to the certified Transit Zoning Code (TZC) programmatic Environmental Impact Report (EIR). The 3rd & Broadway Project location is shown on Exhibit B. Consistent with statewide mandates (see AB 32, SB 375, SB 743) and SCAG's 2016-2040 RTP/SCS to place increased density near major transportation and employment center, the Proposed Project would introduce a diverse mix of land uses; places residents in the immediate vicinity of County and City governmental offices, shops, restaurants, bars, local art scenes, parks; and would be within walking distance to several major public transit opportunities. PROXIMITY TO PEDESTRIAN RESOURCES Pedestrian circulation would be provided via existing public sidewalks along Main Street, 31d Street, 41n Street, and Broadway Avenue within the vicinity of the project frontage, which will connect to the Project site. The project will protect the existing sidewalk along project frontage, and if necessary, repair or reconstruct sidewalks along the project frontage per the City's request. The existing sidewalk system within the project vicinity provides direct connectivity throughout Downtown Santa Ana, inclusive of the Santa Ana Metrolink Station located on Santa Ana Boulevard east of Santiago Street, as well as the City's public parking structures located to the east and west of the subject property along 5th Street. From the project site, it would take approximately 20 minutes to walk to the Santa Ana Metrolink Station that is 1 mile from the site. 12193-11 Parking Study LIo URBAN 75A-431 Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 2 PROXIMITY TO PUBLIC TRANSIT Bus routes serving the Project area within''/a-mile of the Project's location include OCTA routes 19, 53, 55, 64, 83, 145, 206, 462 and 757 as shown on Exhibit C. These routes provide connections to several areas countywide. In addition, the project site is about one mile from the Santa Ana Regional Transportation Station, which is served by regional trains including Amtrak and Metrolink, and bus lines such as Greyhound and several OCTA bus routes. The Project would be within walking distance of the planned OC Streetcar, expected to be in operation in 2022 as shown on Exhibit D. The Project is within a transit priority area as defined by Public Resources Code (PRC) Section 21099(a)(7). A transit priority area is an area within one-half mile of a major transit stop that is existing (or planned under certain conditions). A major transit stop includes the intersection of two or more major bus routes with a frequency service interval of 15 minutes or less during the morning and afternoon peak commute periods (PRC §21064.3). The Project site is within 0.15 miles of the intersection of Bus Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west via 11t Street). The Project site and adjacent bus stops are shown on Exhibit E. PROXIMITY TO BICYCLE FACILITIES The City of Santa Ana promotes bicycling as a means of mobility and a way in which to improve the quality of life within its community. The Bikeway Master Plan recognizes the needs of bicycle users and aims to create a complete and safe bicycle network throughout the City. Currently, not many bicycle facilities exist in the study area, with the exception of a Class II bike lane along Civic Center Drive, between Flower Street and Broadway. However, review of Exhibit F which presents the City's Bikeway Master Plan, shows that bicycle lanes are proposed to be built throughout the study area. As shown in Exhibit F, Class II bike lanes are proposed to be integrated along Civic Center Drive, Santa Ana Boulevard, and Main Street. 12193-11 Parking Study 7 5A — w 3 2 LIo URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 3 o 111Ill // �/o PLAN NOTES EXHIBIT A: 3RD & BROADWAY BUILDING DESIGN SITE PLAN 0 PROPOSED PARKING SPACES PER LEVEL LEVELS PUBLIC HOTEL RESIDENTIAL Le tP1 106 B L L1 66 Le 1.2 39 L .t3 39 L.ceLA 27 12 Le L5 0 17 43 Levet6 59 Le 1.7 I i 56 Lev LB i 38 TOTAL 211 SPACES RT SPACES 196 SPACES BIKE PARIUNG RMUIREO PROPaSEU PUBLIC 3 SPACES 17 SPACES RESIDENTIAL 16 SPACES 16 SPACES 12193-11 Parking Study 75A-433 L�► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 4 EXHIBIT B: 3RD & BROADWAV BUILDING LOCATION MAP 12193-11 Parking Study 75A-434 Lam► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page S EXHIBIT C: OCTA ROUTE MAP AND PROJECT LOCATION 12193-11 Parking Study 75A-435 Lam► URBAN u fO � O 2 � O LL N 7 Q v a m c ai U — u L {L U Ln a Zo Q0 0 N li 0 of u t) 75A-436 Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 7 EXHIBIT E: PROJECT SITE AND NEARBY Bus STOP z}T Z ri i E LIn. -J y z ` e n c rc° m ':i Washinglsn Ate E Wa1hl1Wt, Pro t WasNfybn Aw E 121h S1 0 -urr Onng� C��0.rE Z Mike:1rvtlM1 al Rh—1 hoolo 0Fq Z Q IN Arts E 111M1 Ft �ti^'� 1 If .t J� Lo9a 2 - Poa E 112h St Z L' j GmYtr m !`•Ih SIB ltli ry Fgn©AAi,a w Olh Slo LL i9t F. _' Z < b GN4 ® 1f Santa Ana - Nn sF E S3nb A. G:� V E51n 51 E60, St 71 �- W'slnsl z [rr m ZWEIn PxIrnYEsih 51 = Eglh St SPuq^on SY Z z :N 4IM1 .c. AYn E 41h SI E Yi La N J E Itl SI - E 31tl 51 �Prrzh An - bLnhaM1 Slam c m - Ru E2ntl 51 Z E1ntl SI © - Altl Me un ixo -.W1:I.Sls� ENtU ENSVSI EI M10Y Q Eaoae ., :;.,ma1 st L ;.�..:rn sl E W.,11u1 Sr Aa vi Sanx Ana tavtl.:® Ilph 31pM W Plre St E P" St E Pry k W Chesinul Are„ L. Cheslnll A-,e y 2 ✓� T m N Gimlk 51 Legend El Bus Stops Project Site 12193-11 Parking Study 75A-437 Lam► URBAN IWOMM110-111VA Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 8 EXHIBIT F: PROJECT SITE AND NEARBY BIKE PATHS fill MASTER PLAN l .....Adopted — —Potentlal * Santa Ana Rlwf Rest Stop Existing ..... Adopted — —Potential Mil EAsOng ... . Adopted — —Potential l to Adjacent Cities FOL 4 fl, VALLE, Legend Project Site 0 02S OS NMRSTI "Is I "TOM TIC w &TH V ..S[ S7 C- ESINJI NA wUns P 0 d LLV, .1 .n. D"Hp -F F L mMR-KP ,Z LM 'AIIIANG III 'MRHAA1. &M,Th _L,MJE Ff LJ ;T J tLL L 12193-11 Parking Study 75A-438 OURABM CROSSRC3ADS Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 9 CALIFORNIA GOVERNMENT CODE SECTION 65915 — RESIDENTIAL PARKING The California Government Code Section 65915 (p)(1) identifies parking requirements as follows: one (1) on -site parking space for each 0-1 bedroom unit, two (2) on -site parking spaces for each 2 bedroom unit. As such, the parking requirements for the residential portion of the Project are calculated as follows: • 95 — Studio Units x 1 on -site parking space = 95 parking spaces required. • 51-1 Bedroom Units x 1 on -site parking space = 51 parking spaces required. • 25 — 2 Bedroom Units x 2 on -site parking spaces = 50 parking spaces required. As identified, 196 parking spaces are required pursuant to the California Government Code Section (p)(1)• SANTA ANA TRANSIT ZONING CODE- RESIDENTIAL PARKING The Santa Ana transit zoning code requires 2 spaces/unit for studios, 1-bedroom apartments, 2-bedroom apartments, and 3-bedroom apartments. Additionally, 0.15 spaces/unit must be provided for guest parking. Therefore, for the Project, 368 parking spaces are required for a total parking ratio of 2.15 which is calculated by dividing the spaces required by the number of units, or 368 spots /171 units for the Project as shown on Table 1. Comparing this parking requirement against a proposed parking supply of 196 parking spaces results in a parking deficit of 172 spaces. Parking space requirements per multiple cities and jurisdictions based on the unit count for the Project are listed on Table 1. As shown, the City of Santa Ana's Transit Zoning Code requirements are amongst the most restrictive parking requirements (e.g. require the most parking). 12193-11 Parking Study 75A-439 L F► URBAN /f & E J 75A- 40 Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 11 COMMERCIAL PARKING Pursuant to California Government Code Section 65915(e)(1), the Project is exempt from providing parking spaces for the commercial use. It is anticipated that employees and patrons for the commercial businesses will utilize a portion of the 211 on site public parking stalls. These spaces provide direct access to the commercial uses which if the TZC standards were applied would require 34 spaces. CITY OF SANTA ANA PARKING REQUIREMENTS — HOTEL USE Section 41-1344 of the City of Santa Ana Municipal Code (SAMC) includes an off-street parking rate of one space for each guest room, plus one spaces for each ten rooms. As such, the parking requirements for the hotel portion of the Project are calculated as follows: • 75 rooms x 1 on -site parking space = 75 parking spaces required. • 75 rooms x (1/10) on -site parking space = 7.5 parking spaces required. As identified, 83 parking spaces are required pursuant to the City's Municipal Code requirements. Although application of the parking requirements set forth in the TZC SAMC Section 41-2011 Non - Residential Uses would require 156 spaces for the hotel, given the mixed -use nature, urban location (it is expected that many patrons would use ride -sharing or public transit), the fact that hotels are not typically 100% occupied, it is appropriate to utilize the SAMC Section 41-1344 Hotel parking in lieu of the TZC parking requirements. Additionally, the SAMC Hotel Parking requirements are commensurate with industry standards for other cities in Orange County. For example: • City of Anaheim has a requirement of 0.8 space per guest room. If this were applied to the Project site, only 60 parking spaces would be required. • City of Costa Mesa has a requirement of 1 space for each 2 rentable units. If this were applied to the Project site, only 38 parking spaces would be required. • City of Buena Park has a requirement of 1 space per guest room. If this were applied to the Project, only 75 parking spaces would be required. As previously identified, 83 parking spaces are required pursuant to the City's Municipal Code requirements. Lastly, valet parking will be provided for the hotel to utilize the mechanical lifts and reserved stalls in the adjacent mixed -use building, this will further ensure that the hotel parking demand is met. 12193-11 Parking Study 7 5A-441 L F► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 12 EXISTING PUBLIC PARKING STRUCTURE The Project site is proposed to replace an existing parking structure that includes 438 parking stalls. The Project includes 211 public replacement stalls as part of the Project. 3RD & BROADWAY PARKING SUPPLY Due to the nature of daytime public parking demands and nighttime residential building parking demands, it is expected that many of these spaces may effectively be shared between the public daytime and residential nighttime uses (as needed). Additionally, there are four (4) existing public (owned by the City) and eight (8) private parking lots or structures located in a X mile radius of the Project site, as illustrated on Exhibit G. As such, any public demand can easily be accommodated at these other parking locations. PARKING MANAGEMENT PLAN The following measures are available to the Project to mitigate any parking deficiencies in the event the proposed onsite parking supply is determined to be greater than provided by the Project, as proposed. • PMP Measure 1: Property Owner/Property Management Company shall assign (1) parking space to every residential unit. Additional spaces may be purchased and assigned to any residential unit that requests additional assigned spaces with priority given to two -bedroom units, subject to availability as determined by the Property Owner/Property Management Company. • PMP Measure 2: Upon commencement of any lease for the residential units, the Property Owner/Property Management Company shall provide information on alternative modes of transportation (e.g., a transit map, bus route map, etc.) to promote non -vehicular modes of transportation by future residents. • PMP Measure 3: If the Property Owner and/or Property Management Company determine that the actual parking demand for the site exceeds the State Code's affordable housing parking requirement, the Property Owner/Property Management Company shall provide on -site valet service for the entire structure. Appendix A presents a conceptual valet plan which illustrates up to an additional 122 spaces could be accommodated, if needed. To implement the valet operation, the Property Owner/Property Management Company would engage the services of a well -established valet operations company such as ABC Valet, PPS Parking, and Elite Valet Services. • PMP Measure 4: If the Property Owner and/or Property Management Company further determines, even after implementation of above -mentioned PMP measures, that offsite parking is required for the Project's residential tenants, residential tenants may purchase additional parking within the near -by public parking structure via the agreement that the Property 12193-11 Parking Study 7 5A-442 LIF► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 13 Owner/Property Management Company established with the City Community Development Agency. To facilitate this PIMP measure, the Property Owner/Property Management Company would seek City Council approval and upon Council approval, execute an agreement with the City of Santa Ana to acquire the rights to lease spaces on behalf of the Project's residents. Pursuant to communications with the City Community Development Agency, the Property Owner/Property Management Company would secure up to 50 spaces for residents of the Project as part of the agreement, which would allow the Project residents to access the designated parking structure(s) 24-hours a day seven (7) days a week. Although the mixed -used Project includes 211 public replacement stalls which could be used to meet potential parking demands, additional off -site parking structures are illustrated on Exhibit G, these structures/lots are within a % mile of the Project site (e.g. within walking distance). Based on information provided by the City, there are 1,159 total spaces available at the aforementioned off -site public structures (400 spaces at Lot C, 400 spaces at Lot D, 700 spaces at Lot B, and 59 spaces at Lot 1). • PMP Measure 5: If the Property Owner and/or Property Management Company further determines, even after implementation of above -mentioned PMP measures that additional parking is needed, the Property Owner/Property Management Company shall restrict on -site parking to only residential tenants. The only exception would be spaces designated and signed for prospective resident tenants and/or short-term parking for retail customers. All retail customers, resident guests, and hotel guests would be required to park in one of the near -by public parking structures or utilize on -street parking. Exhibit G summarizes public and private off -site structures within a % mile of the Project site. Based on information provided by the City, there are 1,559 total spaces available at the aforementioned public structures. If the Property Owner and/or Property Management Company determine that offsite parking is required for the Project, the Property Owner/Property Management Company shall execute an agreement with the City of Santa Ana to acquire the rights to lease spaces on behalf of retail/hotel employees. • PMP Measure 6: The Property Owner/Property Management Company shall enter into a lease with the City for use of up to 34 public parking spaces for commercial tenants, if needed. • PMP Measure 7: The parking conditions will be reviewed/monitored on a quarterly basis by the Property Owner/Property Management Company and appropriate actions detailed above will be taken to ensure the necessary PMP measures are being implemented. Through this monitoring and cooperation with tenants as a result of the quarterly review/monitoring a partnership will be formed to ensure that residential tenants, retail employees, hotel employees, and Management Company personnel on the property work together to ensure adequate parking is available. 12193-11 Parking Study 7 5A-443 L�► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 14 EXHIBIT G: 3RD HL BROADWAY PARKING LOTS/STRUCTURES WITHIN % MILE w z Z CIVICCENTER 0 � to And 0 ,'0 SAN I.r ALLEY m Ir^,I�I1L1 ¢ u ALLEY Legend I_ Project Site Parking Lots Private Public Q Quarter Mile Radius U CIVICCENTER 0 i 4 CIVICCENTER w P 2 6ANTAANA SANTA ANA Sj SANTAA 6TH W z �- 07 Q STH _ I_— gNu . r_ 5 D ,L m B'� —VALLEY _ 4TH ALLEY - _SITE : 3RD — 6 a W o W st ALLEY Q _ WALNUT U ALLEY - W PINE PINE 2 ALLEY 12193-11 Parking Study 75A-444 Lam► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 15 Table 2 provides a summary of the Project's residential parking supply ratio with implementation of the above -recommended PMP measures. A review of RowA of Table 2 shows that the Project's parking ratio calculates to 1.15 spaces/unit (196 spaces _ 171 units). With implementation of PMP measure No. 3, which would be attained by providingvalet parkingforthe entire parking structure (122 spaces), the Project's parking supply ratio would increase to 1.86 spaces/unit (318 spaces = 196 units) as shown on Row B of Table 2. With implement of PMP measure No. 4 (in addition to PMP No. 3) which would be attained by leasing up to 50 off -site parking spaces within the City -owned parking structure, the Project's parking supply ratio would increase to 2.15 spaces/unit (368 spaces _ 196 units) as shown on Row C of Table 2. CONCLUSIONS This analysis demonstrates that the Project is providing adequate parking supply (a total of 279 spaces for the Residential and Hotel Use). The inclusion of 196 parking spots for the Residential use satisfies the requirements of the California Government Code Section 65915 (p)(1) and the inclusion of 83 parking spaces satisfies the requirements of section 41-1344 of the City of Santa Ana Municipal Code (SAMC). While such an action is not required, applicable PMPs have been identified which would allow the Project to attain the 2.15 blended parking ratio required by the Santa Ana Transit Zoning Code, if it were applied. These findings are consistent with the less than significant findings in the TZC EIR (Long-term cumulative development under the implementation of this Transit Zoning Code would not result in inadequate parking capacity). If you have any questions, please contact me at (949) 660-1994. Respectfully submitted, URBAN CROSSROADS, INC. Haseeb Qureshi Associate Principal 12193-11 Parking Study 75A-445 L F► URBAN Mr. Michael F. Harrah Caribou Industries, Inc. September 9, 2020 Page 16 TABLE 2: PROJECT PARKING SUMMARY— PARKING SUPPLY RATIOS Use Quantity Parking Rate Required Parking spaces Residential 171 units 95 Studio Units x 1 space 95 51 One -Bedroom Units x 1 space 51 25 Two -bedroom Units x 2 spaces 50 Parking Requirement 196 Proposed On -site Parking Supply 196 A. Composite Parking supply Ratio (sp/du) 1.15 Proposed On -site Parking Supply+ PIMP Measure 3 318 B. Composite Parking supply Ratio (sp/du) 1.86 Proposed On -site Parking Supply+ PIMP Measure 3 + PIMP Measure 41 368 C. Composite Parking supply Ratio (sp/du) 1 2.15 12193-11 Parking Study 75A-446 Lam► URBAN APPENDIX A: 3RD & BROADWAY CONCEPTUAL VALET LAYOUT 12193-11 Parking Study 75A-447 L�► URBAN co w C W v W C 0 in a v c�a N 3rn �c m� oLM L cu CO 0. m x w c c C- C- C- C- C- CR c C C C C C C C C C €I €I n n no n n sa J a O m N N m Cc N y C/n r a m Im c N Y Y > N j M a a V m J N r r 75A-449 m w+� I S ri �I uva vane a� p` lifi Ll o� N F I O 3d lS J» oz Iwz�vw 3 i Y _ t a I � a 4 o-�®g I i i 3 3 e I i an. an N U1 EE 75 ed.a .aae y 0 cc CIM (A t ° R . .. .... ... cc w >< q� N c c 1 e Fg'r' J" . ', o ° s Y N o` Lo rn v Cl) LID Q � onivaaanmzieaaueaeo 7SA—I — I I I j I I Tir •-Ilp' •N. f� �� 1 � 11 'f� lli£� =11 ply 11� llp pa.�s sole' ni II��'ggsf ai Ila��agga��3q,_q 11 Ili 1 11 � ni' Ili 11 aid it [ o° q q. .I. 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Valuations 190.96 $ 1,014,952.40 192.20 $ 2,358,486.20 167.27 $ 29,483,512.01 200.26 $ 45,659.28 142.95 $ 1,158,466.80 107.99 $ 11,296,617.92 $ 45,357,694.61 1.00% $ 453,576.95 Density Bonus Fee 0.125 $ 56,697.12 * Parcel 1, S-2 area excludes 57,212 sq ft for public parking. Excluded from Density Bonus Setup Fee: c v c v � v �(D n' S-2 I -A 51,176 107.99 $ 5,526,496.24 A-2 I -A 1,039 190.96 $ 198,407.44 N a a, A-3 I -A 9,965 192.20 $ 1,915,273.00 x0 R-1 I -A 49,953 199.70 $ 9,975,614.10 v R-2 I -A 16,629 167.27 $ 2,781,532.83 $ 14,870,827.37 75A-473 SECOND AMENDMENT TO SECOND EXCLUSIVE NEGOTIATION AGREEMENT This Second Amendment to Second Exclusive Negotiation Agreement is made and entered into this 20a' day of October, 2020, by and between CARIBOU INDUSTRIES, INC., a Nevada corporation ("Developer"), and the CITY OF SANTA ANA, a charter city and municipal corporation, organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City and Developer entered into Second Exclusive Negotiation Agreement No. A-2019-062, dated May 7, 2019, in order to provide a specified period of time to attempt to negotiate a disposition and development agreement ("DDA") ("said Agreement'). B. On April 22, 2020, the City and Developer entered into a First Amendment to said Agreement, No. A-2020-071, in order to extend the Term of Agreement to extend the Negotiation Period until November 6, 2020. C. In accordance with the terms and conditions of said Agreement, the Parties desire to again amend the Term of Agreement section to extend the Negotiation Period for an additional sixty (60) days, until January 5, 2021. 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: HI HI HI HI 1. Section 2, Term of Agreement, subsection (a), shall be amended to extend the Negotiation Period for an additional sixty (60) days, until January 5, 2021. 2. Section 2, Term of Agreement, subsection (d), shall be amended to read as follows: "The Negotiation Period may only be extended by approval of the City Council." 3. Except as hereinabove modified, all terms and conditions of said Agreement shall remain in full force and effect. 7v5A14�4 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Second Exclusive Negotiation Agreement the date and year first above written. CITY OF SANTA ANA ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: RY: O. ODGE Assi ant City Attorney RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency KRISTINE RIDGE City Manager DEVELOPER: Michael F. Harrah President Caribou Industries, Inc. Dated: 7bA-44 '5