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PARTIAL OCCUPANCY AGREEMENT COVERING A
PORTION OF THE PREMISES LOCATED AT
Santa Ana OpCo, LLC,
d.b.a. Embassy Suites Santa Ana Orange County Airport
1325 E. Dyer Road
Santa Ana, CA 92705
OCCUPANT AGENCY
City of Santa Ana
Preamble THIS EMERGENCY PARTIAL OCCUPANCY AGREEMENT ("Occupancy Agreement"), is
made and entered into as of this 22 day of October 2020 by and between:
SANTA ANA OPCO, LLC.
(hereinafter called the "Owner"), without distinction as to number or gender, 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 (hereinafter called the "Occupant") (Owner and Occupant may be
individually referred to herein as a "Party," or collectively as the "Panties.").
Recitals A, This Agreement is entered into pursuant to the City of Santa Ana's Local Emergency
Proclamation Resolution No. 2020-016 dated March 17, 2020, the Governor's State of
Emergency Proclamation dated March 4, 2020 and Executive Order N-25-20, in response
to COVID-19, and is directly related to that emergency and necessary for the preservation
of public health and safety.
B. International, national, state, and local health and governmental authorities are
responding to an outbreak of respiratory disease caused by a novel coronavirus
named "SARS-CoV-2," and the disease it causes has been named "coronavirus
disease 2019," abbreviated COVID-19 ("COVID-19").
C. On March 4, 2020, the Governor of the State of California declared a state of
emergency to make additional resources available, formalize emergency actions
already underway across multiple state agencies and departments, and help the
state prepare for the broader spread of COVID-19.
D. On March 13, 2020, the President of the United States of America declared a
national emergency and announced that the federal government would make
emergency funding available to assist state and local governments In preventing the
spread of and addressing the effects of COVID-19.
E. The Orange County Board of Supervisors and Department of Public Health declared
a local emergency and local public health emergency to aid the regional healthcare
and governmental community in responding to COVID-19.
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F, On March 17, 2020, the City Council proclaimed the existence of a local emergency
to ensure the availability of mutual aid and to activate the City's response to the novel
coronavirus (" COVID-19").
G. On March 27, 2020, a special allocation of funds was authorized by the Coronavirus Aid,
Relief, and Economic Security Act ("CARES Act% Public Law 116-136, Section 601(a) of
the Social Security Act, to prevent, prepare for, and respond to the coronavirus ("COVID-
19") pandemic.
H, On August 4, 2020, the Santa Ana City Council authorized the City Manager to utilize
CARES Act funding forvarious programs in response to the COVID-19 pandemic, including
the Santa Ana CARES Isolation Assistance Program, which is aimed at assisting residents
within the City of Santa Ana that have been affected by COVID-19 and need assistance in
Isolating themselves from a COVID-19 positive family or household member.
WITNESSETH
NOW THEREFORE, In consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
Description 1. The Occupant hereby hires from the Owner those certain premises "AS IS" with
appurtenances situated in the City of Santa Ana, County of Orange, State of California, and more
particularly described as follows:
A portion of [Embassy Suites Santa Ana Orange County Airport] located at [1325 East Dyer
Road, Santa Ana, CA 927051 as depicted on Exhibit A, attached hereto and incorporated herein,
including 50 number of parking spaces contiguous to the subject hotel building, and unlimited use
of the building's common facilities (collectively, the "Premises"). The Occupant shall have access
to and use of the occupied Premises set forth in this Occupancy Agreement 24 hours per day,
seven (7) days per week with no exceptions.
Occupant will authorize invitees' admission to the Promises. Invitees will receive a voucher
from Occupant upon which can be redeemed for up to a maximum of 14-day stay at Owner's
facilities.
Term 2. The term of this Occupancy Agreement shall commence on October 22, 2020, and shall
continue month to month, with such rights of termination as may be hereinafter expressly set forth.
Early 3. Either Party may terminate this Occupancy Agreement at anytime by giving written notice
Termination to the other Party thirty (30) days prior to the date when such termination shall become effective,
If the Occupant falls to complete Its move out within the notice period and remains In the Premises,
additional rent for any remaining occupied rooms shall be paid and prorated on a thirty (30) day
month, based on the actual number of days the Occupant occupies said rooms on the Premises
following the effective date of termination.
Rent 4. Rental payments shall be paid by the Occupant, from legally available funds, in arrears on
the last day of each month, upon invoice from the Owner, during said term as follows:
THE DAILY RATE FOR PURPOSES OF THE ABOVE CALCULATIONS IS BASED ON
[$84.00 + tax (currently 11 % TOT and .19% Tourism Assesment)] PER DAY PER ROOM.
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At the end of each month, Owner will submit to Occupant an Invoice documenting the number
of daily rooms occupied at the agreed upon rate above.
Rental payments shall be paid to Owner at the address specified in Paragraph 5 or to such
other address as the Owner may designate by a notice in writing or by direct deposit.
Notices 5. All notices and correspondence herein provided to be given, or which may be given by
either party to the other, shall be deemed to have been fully given when made in writing and
elther: 1) sent via electronic mail; 2) deposited in the United States Mail, certified and postage
prepaid; or 3) sent via an alternate commercial overnight delivery service (i.e., FedEx or similar)
with receiver's signature required; and addressed as follows:
To the Owner: [Santa Ana opCo, LLC d.b.a.
Embassy Suites Santa Ana Orange County Airport]
1325 East Dyer Road, Santa Ana CA 92705
714-241-3330
Adam.sanchina@windsorhospitality.com
To Occupant:
Executive Director
Community Development Agency
City of Santa Ana
20 Civic Center Plaza (M-25)
P.O, Box 1988
Santa Ana, California 92702
Fax: 714-647-6549
ALL NOTICES AND CORRESPONDENCE MUST REFERENCE
OCCPANT AND PREMISES ADDRESS
Upon invoice by Owner, as set forth above, Rental Payments shall be made payable to:
(Embassy Suites Santa Ana Oranoe County Airgortl
and mailed to: Embassy Suites Santa Ana Orange County Airport
Attn: Adam Stanchina
1325 E. Dyer Road, Santa Ana, CA 92705
The address to which notices and correspondence shall be mailed to either party may be
changed by giving written notice to the other party.
Parking 6, yQ number of parking spaces at the Premises, upon commencement of the Occupancy
Agreement, shall be unobstructed and completely accessible for Occupant's use.
Services, 7. Owner, at Owner's sole cost and expense, during the term of this Occupancy Agreement
Utilities, and shall furnish the following utilities to the area occupied by the Occupant, and also to the "common"
Supplies building areas, If any, such as lobbies, elevators, stairways, corridors, laundry room, etc., which
Occupant shares with other users, if any:
A. Sewer, trash disposal, and water service, including both hot and cold water to the
lavatories; and,
B. Electricity and/or gas as necessary to provide power for heating, ventilating, and air
conditioning, and electrical or gas service as needed for Occupant's operations.
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In the event of failure by the Owner to furnish any of the above utilities in a satisfactory manner,
the Occupant may furnish the same at its own cost; and, in addition to any other remedy the
Occupant may have, may deduct the amount thereof, Including Occupant's administrative costs,
from the rent that may then be, or thereafter become due hereunder. In addition, Owner shall
provide a list of all utilities, including contact information, used to operate the Premises contracted
out to third parties. Owner shall agree to make available an on -call facilities person to assist
Occupant during the Term of this Occupancy Agreement.
Repalr and 8. During the term of this Occupancy Agreement, the Occupant shall maintain the occupied
Maintenance Premises in good repair, general wear and tear excepted.
Assignment 9. The Occupant shall have the ability to assign this Occupancy Agreement upon notice to
and the Owner.
Subletting
Quiet 10. The Owner agrees that the Occupant, while keeping and performing the covenants herein
Possession contained, shall at all times during the existence of this Occupancy Agreement, peaceably and
quietly have, hold, and enjoy the occupied Premises without suit, trouble, or hindrance from the
Owner or any person claiming under Owner.
Destruction 11. If the occupied Premises are totally destroyed by fire or other casualty, this Occupancy
Agreement shall terminate. If such casualty shall render ten percent (10%) or less of the floor
space of the occupied Premises unusable forthe purpose intended, Owner shall effect restoration
of the Premises as quickly as is reasonably possible, but in any event within thirty (30) days.
In the event such casualty shall render more than ten percent (10%) of such floor space
unusable but not constitute total destruction, Owner shall forthwith give notice to Occupant of the
specific number of days required to repair the same. If Owner under such circumstances shall
not give such notice within fifteen (15) calendar days after such destruction, or if such notice shall
specify that such repairs will require more than ninety (90) days to complete from date such notice
is given, Occupant, in either such event, at its option may terminate this Occupancy Agreement
or, upon notice to Owner, may maintain occupancy and elect to undertake the repairs Itself,
deducting the cost thereof from the rental due or to become due under this Occupancy Agreement
and any other Occupancy Agreement between Owner and Occupant.
In the event of any such destruction other than total, where the Occupant has not terminated
the Occupancy Agreement as herein provided, or pursuant to the terms hereof has not elected to
make the repairs itself, Owner shall diligently prosecute the repair of said Premises and, in any
event, If said repairs are not completed within the period of thirty (30) days for destruction
aggregating ten percent (10%) or less of the floor space, or within the period specified in Owner's
notice in connection with partial destruction aggregating more than ten percent (10%), the
Occupant shall have the option to terminate this Occupancy Agreement or complete the repairs
Itself, deducting the cost thereof from the rental due or to become due under this Occupancy
Agreement and any other Occupancy Agreement between Owner and Occupant.
In the event the Occupant remains in possession of said Premises though partially damaged,
the rental as herein provided shall be reduced by the same ratio as the net square feet the
Occupant is thus precluded from occupying bears to the total not square feet in the occupied
Premises. "Net square feet" shall mean actual inside dimensions and shall not include public
corridors, stairwells, elevators, and restrooms.
It is understood and agreed that the Occupant or its agent has the right to enter its destroyed
or partially destroyed occupied facilities no matter what the condition. At the Occupant's request,
the Owner shall Immediately Identify an appropriate route through the building to access the
Occupant occupied space. If the Owner cannot identify an appropriate access route, it is agreed
Page - 4
that the Occupant may use any and all means of access at its discretion in order to enter Its
occupied space.
Subrogation 12. To the extent authorized by any fire and extended coverage insurance policy issued to
Waived Owner on the herein occupied Premises, Owner hereby waives the subrogation rights of the
Insurer, and releases the Occupant from liability for any loss or damage covered by said
insurance,
Prevailing 13. For those projects defined as "public works" pursuant to Labor Code §17201, if any, the
Wage following shall apply:
Provision
A. Owner/contractor shall comply with prevailing wage requirements and be subject to
restrictions and penalties in accordance with §1770 at seq. of the Labor Code which
requires prevailing wages be paid to appropriate work classifications in all bid
specifications and subcontracts.
B. The Owner/contractor shall furnish all subcontractors/employees a copy of the
Department of Industrial Relations prevailing wage rates which Owner will post at the job
site. All prevailing wage rates shall be obtained by the Owner/contractor from:
Department of Industrial Relations
Division of Labor Statistics and Research
455 Golden Gate Avenue, 8th Floor
San Francisco, California 94102
Phone:(415) 703-4774
Fax: (415) 703-4771
For further information on prevailing wage: http:/Avww.dir.ca.ciov/dlsr/statistics research html
C, Owner/contractor shall comply with the payroll record keeping and availability requirement
of §1776 of the Labor Code.
D. Owner/contractor shall make travel and subsistence payments to workers needed for
performance of work in accordance with the Labor Code.
E. Prior to commencement of work, Owner/contractor shall contact the Division of
Apprenticeship Standards and comply with §1777.5, §1777.6, and §1777.7 of the Labor
Code and Applicable Regulations,
Non- 14. During the performance of this Agreement, Owner and Its subcontractors shall not deny
Discrimination the contract's benefits to any person on the basis of race, religious creed, color, national origin,
Clause ancestry, physical disability, mental disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and
veteran status, nor shall they discriminate unlawfully against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information, marital status, sex, gender, gender
Identity, gender expression, age, sexual orientation, or military and veteran status. Owner shall
insure that the evaluation and treatment of employees and applicants for employment are free of
such discrimination.
Owner and subcontractors shall comply with the provisions of the Fair Employment and
Housing Act (Gov. Code section 12900, at seq,), the regulations promulgated thereunder (Cal.
Code Regs., tit. 2, section 11000, at seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division
3, Title 2 of the Government Code (Gov. Code sections 11135-11139.5), and the regulations or
standards adopted by the awarding state agency to implement such article. Owner shall permit
access by representatives of the Department of Fair Employment and Housing and the awarding
state agency upon reasonable notice at any time during the normal business hours, but in no case
less than 24 hours' notice, to such of its books, records, account, and all other sources of
Page - 5
information and Its facilities as said Department or Agency shall require to ascertain compliance
with this clause. Owner and its subcontractors shall give written notice of their obligations under
this clause to labor organizations with which they have a collective bargaining agreement. (See
Cal. Code Regs., tit. 2, section 11105.)
Holding Over 15. In the event the Occupant remains In possession of the Premises after the expiration of
the Occupancy Agreement term, or any extension or renewal thereof, this Occupancy Agreement
shall be automatically extended on a month to month basis, subject to a thirty (30) day termination
by the Occupant and otherwise on the terms and conditions herein specified, so far as applicable.
If the last rental amount shown in Paragraph 4 included the amortization of a capital sum
expended by Owner for certain alterations and improvements, as described in a separate
paragraph herein, and the capital sum has been fully amortized, the holdover rent shall be
reduced by the amount of the monthly amortization. If the Occupant fails to vacate the Premises
within the notice period and remains for an extended period, additional rent shall be paid and
prorated on a thirty (30) day month, based on the actual number of days the Occupant occupies
the Premises following the effective date of termination.
Surrender of 16. Upon termination or expiration of this Occupancy Agreement, the Occupant will
Possession peacefully surrender to the Owner the occupied Premises in as good order and condition as when
received, except for reasonable use and wear thereof and damage by earthquake, fire, public
calamity, the elements, acts of God, or circumstances over which Occupant has no control or for
which Owner is responsible pursuant to this Occupancy Agreement.
Time of 17. Time is of the essence of this Occupancy Agreement, and the terms and provisions of
Essence, this Occupancy Agreement shall extend to and be binding upon and Inure to the benefit of the
Binding upon heirs, executors, administrators, successors, and assigns to the respective parties hereto. All of
Successors the parties hereto shall be jointly and severally liable hereunder.
No Oral 18. It is mutually understood and agreed that no alterations or variations of the terms of this
Agreements Occupancy Agreement shall be valid unless made in writing and signed by the parties hereto, and
that no oral understanding or agreement not incorporated herein, shall be binding on any of the
parties hereto.
Insurance 19, Owner understands and agrees that the Occupant is self -insured for liability exposures.
Under this form of insurance, the Occupant and its employees acting in the course and scope of
their employment are insured for tort liability arising out of official Occupant business. All claims
against Occupant based on tort liability should be presented as a government claim to the
Government Claims Program through Occupant. (Gov. Code section 900, et, seq.)
Hazardous 20. Occupant agrees that it will comply with all applicable laws existing during the term of this
Substance Occupancy Agreement pertaining to the use, storage, transportation, and disposal of any
hazardous substance as that term is defined in such applicable law. In the event Owner or any
of Its affiliates, successors, principals, employees, or agents should Incur any liability, cost, or
expense, including attorney's fees and costs, as a result of the Occupant's illegal or alleged illegal
use, storage, transportation, or disposal of any hazardous substance, including any petroleum
derivative, the Occupant shall indemnify, defend, and hold harmless any of these individuals
against such liability, to the extent authorized by Government Code section 14662.5. Where the
Occupant is found to be in breach of this provision due to the issuance of a government order
directing the Occupant to cease and desist any illegal action in connection with a hazardous
substance, or to remediate a contaminated condition caused by the Occupant or any person
acting under Occupant's direct control and authority, Occupant shall be responsible for all costs
and expenses of complying with such order, including any and all expenses imposed on or
Incurred by Owner in connection with or in response to such government order, to the extent
authorized by Government Code section 14662.5. In the event a government order is issued
naming the Occupant or the Occupant incurs any liability during or after the term of the Occupancy
Page-6
Agreement in connection with contamination which pre-existed the Occupant's obligations and
occupancy under this Occupancy Agreement or which were not caused by the Occupant, Owner
shall hold harmless, Indemnify, and defend the Occupant in connection therewith and shall be
solely responsible as between Occupant and Owner for all efforts and expenses thereto.
Restoration of 21. Upon termination of this Occupancy Agreement, Owner agrees that the equipment
Premises installed by the Occupant, if any, shall be and remain the property of the Occupant, and Occupant
shall remove such property when vacating the Premises. Occupant shall restore all surfaces,
Including floors and walls, to the condition existing prior to its installation, including repair of
damaged floor tile and patching and repainting damaged wall surfaces to match adjacent existing
surfaces. Occupant shall clean the Premises per the current health and safety protocols
established by public health officials, immediately prior to vacating the Premises.
Hotel Staff 22. Owner warrants that this Occupancy Agreement will not impact the employment status
Compensation of any hotel staff for the duration of this Occupancy Agreement. Owner and/or its agents shall
ensure that all hotel staff will receive the same compensation as they would otherwise have
received absent any Occupant Agreement, whether they are reassigned to another portion of the
Premises, another hotel or relieved of duty for the duration of the Occupancy Agreement. As
such, hotel staff shall be available to assist Occupant in the operation of the facility during the
Term, upon request, to the extent that such assistance can be accomplished In a safe and healthy
manner.
Indemnification 23. Owner agrees to defend, and shall indemnify and hold harmless the Occupant, its
officers, agents, employees, contractors, special counsel, and representatives from liability: (1)
for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out
of claims for personal injury, including death, and claims for property damage, which may arise
from the negligent operations of the Owner, its subcontractors, agents, employees, or other
persons acting on its behalf; and (2) from any claim that personal injury, damages, just
compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects
arising from this Agreement. This indemnity and hold harmless agreement applies to all claims
for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have
been suffered, by reason of the terms of, or effects, arising from this Agreement. The Owner
further agrees to indemnify, hold harmless, and pay all costs for the defense of the Occupant,
Including fees and costs for special counsel to be selected by the Occupant, regarding any action
by a third party challenging the validity of this Agreement, or asserting that personal injury,
damages, just compensation, restitution, judicial or equitable relief due to personal or property
rights arises by reason of the terms of, or effects arising from this Agreement. Occupant may
make all reasonable decisions with respect to its representation in any legal proceeding.
Immunity 24. The political subdivision shall be Immune from liability for ordinary negligence in the
provision of emergency housing pursuant to Government Code Section 8698.2. This limitation of
liability shall apply only to conditions, acts, or omissions directly related to, and which would not
occur but for, the provision of emergency housing. This section does not limit liability for grossly
negligent, reckless, or intentional conduct which causes injury.
Records 25. Owner shall keep records and invoices in connection with the occupancy and work to be
performed under this Agreement. Owner shall maintain complete and accurate records with
respect to the costs incurred under this Agreement and any services, expenditures, and
disbursements charged to the Occupant for a minimum period of three (3) years, or for any longer
period required by law, from the date of final payment to Owner under this Agreement. All such
records and invoices shall be clearly identifiable. Owner shall allow a representative of the City
to examine, audit, and make transcripts or copies of such records and any other documents
created pursuant to this Agreement during regular business hours. Owner shall allow Inspection
of all work, data, documents, proceedings, and activities related to this Agreement for a period of
three (3) years from the date of final payment to Owner under this Agreement.
Page - 7
Waiver 26. No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it Is In writing and signed by
the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or
remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not
similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
Jurisdiction - 27, This Agreement has been executed and delivered in the State of California and the
Venue validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
Authorization 28. Occupant and Owner (each, a "signing party") each represents and warrants to the other
that the person or persons signing this Occupancy Agreement on behalf of the signing party has
full authority to do so and that this Occupancy Agreement binds the signing party. Owner shall
indemnify Occupant fully, including reasonable costs and attorney's fees, for any injuries or
damages to Occupant in the event that such authority or power is not, in fact, held by the signatory
or is withdrawn.
Taxes 29. Owner is solely responsible for all tax liabilities, including property taxes, or any
assessments related to the Premises, including but not limited to those associated with utilities.
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N-2020-175
IN WITNESS WHEREOF, this Occupancy Agreement has been executed by the Parties hereto as of the
dates written below
ATTEST:
a)
Delay Gomez
`—Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Ryan O. Hodge
Assistant City Attorney
FOR APPROVAL:
Ie�eh�eh�o
Steven Mendoza
Executive Director
Community Development Agency
CITY OF SANTA ANA
KriOne Ridge
City Manager
OWNER:
Adam Stanchina
General Manager, Santa Ana opCo, LLC d.b.a.
Embassy Suites Santa Ana, Orange County
Airport
Page - 9
E Dyer Rd
Oj
E Dyer R-d
SANTA ANA OPCO LLC
Final Audit Report 2020-10-23
Created: 2020-10-22
By: Sylvia Vazquez (svazquez@santa-ana.org)
Status: Signed
Transaction ID: CBJCHBCAABAA1ges4DrV5XdxtRH2hxOoYH68xjNsiLul
"SANTA ANA OPCO LLCrr History
Document created by Sylvia Vazquez (svazquez@santa-ana.org)
2020-10-22 - 7:42:42 PM GMT- IP address: 98.153.69.210
C. Document emailed to Ryan Hodge (rhodge@santa-ana.org) for signature
2020-10-22 - 7:43:14 PM GMT
Email viewed by Ryan Hodge (rhodge@santa-ana.org)
2020-10-23 - 0,09:19 AM GMT- IP address: 70.224.64.65
do Document e-signed by Ryan Hodge (rhodge@santa-ana.org)
Signature Date: 2020-10-23 - 0:10:18 AM GMT - Time Source: server- IP address: 70.224.64.65
Cv Document emailed to Steven Mendoza (smendoza@santa-ana.org) for signature
2020-10-23 - 0:10:21 AM GMT
Email viewed by Steven Mendoza (smendoza@santa-ana.org)
2020-10-23 - 0:16:28 AM GMT- IP address: 98.153.69.210
66 Document e-signed by Steven Mendoza (smendoza@santa-ana.org)
Signature Date: 2020-10-23 - 0:18:04 AM GMT - Time Source: server- IP address: 98.153.69.210
Agreement completed.
2020-10-23 - 0:18:04 AM GMT
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