HomeMy WebLinkAbout2020-090 -Approving a Disposition and Development AgreementRESOLUTION NO. 2020-090
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 commercialfretail 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.
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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. On October 20, 2020, the Parties entered into the Second Amendment to
the Second Exclusive Negotiation Agreement, which is effective until January 5, 2021.
K. 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").
L. 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.
M. 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
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Routes 53/53X (north -south along Main Street), 55, and 64/64X (east -west
via 1 st Street).
N. 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.
0. On November 17, 2020 the City Council held a duly noticed public hearing,
and at that time considered all testimony, written and oral.
P. 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.
Q. 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:
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Section 1. The recitals are true and correct and are incorporated into this
Resolution by this reference.
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,
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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.
ADOPTED this 17th day of November. 2020.
APPROVED AS TO FORM:
Sonia R. Carvalho
City
M
Ndkruel A. Pulido
Mayor
Resolution No. 2020-090
Page 5 of 6
Ryan O. Hodge
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
Bacerra Mendoza Pulido. Solorio, Villegas (5)
Penaloza (1)
Sarmiento (1)
NOT PRESENT: Councilmembers None (0)
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Daisy Gomez, Clerk of the Council do hereby attest to and certify the attached
Resolution No. 2020-090 to be the original resolution adopted by the City Council of the
City of Santa Ana on November 17, 2020.
Date [ I
Daisy mez
Clerk of the Co ncil
City of Santa Ana
Resolution No. 2020-090
Page 6 of 6
EXHIBIT A
DISPOSITION AND DEVELOPMENT AGREEMENT
[Attached behind this cover page]
Exhibit A
RECORDED AT REQUEST OF
CLERIC, 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]
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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 foodibeverage 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
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5 5394.00049\3 323 9203.12
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.
I. 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 Citv. 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
5 53 94.00049\33239203.12
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
55394.00049\33239203.12
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 "CEOA" means the California Environmental Quality Act, Public
Resources Code Sections 21000, et seq.
2.1.8 "CEOA 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.
El
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2.1.13 " City Party" means, individually, the City, its governing body, elected
officials, employees, agents or attorneys.
2.1.14 "Citv'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.
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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 "B," 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 I 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.
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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 (180th) 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
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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.
55394.00049\33239203.12
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 Superfund
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 3021; (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
55394.00049\33239203.12
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 "P" 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 Indemnitor shall
indemnify the Indemnitee and defend and hold the hndemnitee 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 hidemnitee 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.
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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 "Notify" 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
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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 "PCO 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 terns 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.
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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
Project.
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 Managerpursuant 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 ail 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.
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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 Party 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 Party'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.
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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
Project.
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 frorn 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
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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. hi 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
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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
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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:
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(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.
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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 terns and conditions reasonably acceptable to the Developer;
4.3.6 CEOA 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
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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 terms and conditions reasonably acceptable to the Developer, including but not limited to
building permits;
4.4.4 CEOA 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..
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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 funds 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 funds 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 funds 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
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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;
4.7.4 Form 593. File the Form 593 with the State of California Franchise Tax
Board;
4.7.5 Title Policv. 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-B, 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
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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
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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 funds 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
Project.
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.
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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 Proj ect or 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.
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553900049133239203.12
(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 hnprovements 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
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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
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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 brAuthorized
Developer Representative
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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.
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(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.
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(k) Deductibles and Self-hnsured 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 terms 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.
(b) The preparation of the Project site for construction to a rough grade
condition.
(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 Financin¢. 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
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private financing has been repaid in its entirety
(c) If the City utilizes City Funds to finance the construction of the City
Funded hnprovements 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 I' 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 funds 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
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(c)
Baggage Storage
(d)
Elevators
(e)
24-hour Pantry Market
(t)
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.
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(d) On the Sixth Hotel Anniversary Date if for the period between The
Fifth Hotel Amniversary 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.
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(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
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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 Proj ect 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.
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12
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)
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(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 = $15m
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
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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 Proj ect 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 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
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55394.00049\33239203.12
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 of ten 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
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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 of ten 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
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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 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 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.
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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 fands 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.
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55394.00049\33239203.12
(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
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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.
M3itials of Authorized
City Representative
Initials o 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.
Initi f uthorized
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
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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 hrdemnitor. 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 Indemniter 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 hndemnitees.
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.
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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 Indemnitor's duty to defend the Indemnitee, at any stage of any
claim or suit, within the scope of the Indemnitor'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 Indemnitee shall promptly Notify the Indemnitor 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 hrdemnitor 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, hndemnitee 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 Indemnitee waives its rights to indemnity and defense for such claim.
9.7.3 Cooperatio,n. The Indemnitee shall reasonably cooperate with the
Indemnitor's defense of the Indemnitee, provided the hndemnitor 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 anyway.
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.
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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
553 94.0004M323 9203.12
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 (401) 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
55394.00049\33239203.12
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.
It 03 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, joint 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
55394.00049M239203. 12
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 Party 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
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553 94.00049\3 323 9203.12
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 any 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 Patty 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 cormnence 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
55394.00049\33239203.12
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.lIntegrated 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
5 53 94.00049\3 3239203.12
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
5 53 94.00049\33239203.12
SIGNATURE PAGE
TO
2020 DISPOSITION AND DEVELOPMENT AGREEMENT
(CARIBOU INDUSTRIES, INC.)
IN WPPNESS WHEREOF, the City and the Developer have executed this 2020 Disposition
and Development Agreement (Caribou Industries, Inc.) by and through the signatures of their duly
authorized representative(s) set forth below:
CITY OF SANTA ANA: DEVELOPER:
By:_
Name:
Its:
Attest:
By:
City Clerk
APPROVED AS TO FORM:
By: Y
City orn
CARIBOU INDUSTRIES, INC.
By.
Name: L�
Its:S
i
M
56
55394.00049\33239203.12
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 at, 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 t 1, 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.
Exbibit "A"
Property Legal Description
553 94.00049\3 323 9203.12
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.
I. 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 Draw in s. City shall
Exhibit `B"
Performance Schedule
55394.00049\33239203.12
II.
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.
to.
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
I.IAVa1KUl:11U1V LKAWIINkxN A1VL
11. Submission of Complete
Construction Drawings and
Grading Plans. Developer shall
submit to the Planning and Building
Agency complete Construction
Drawings and Grading Plans.
MAINS
Within 8 month after City Council approval of
Project, Developer will submit complete
construction drawings and grading plans.
12. Approval of Complete I Within 3 months after submittal of complete
Construction Drawings. The Lconstruction drawings and grading plans, the
Exhibit `B"
Performance Schedule
55394.00049M239203.12
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. Within 90 days of
Developer shall submit Proof of drawings.
Financing Commitments for all of the
Developer Improvements to City.
14. Proof of Hotel Operator
Commitment.
Developer shall submit proof of hotel
operator commitment to City or shall
provide proof of sufficient financing to
implement the Alternative
construction
Within 90 days of approval of construction
drawings.
Management Plan
15. Financing for Public Improvements. Within 90 days of receipt
City shall provide Proof of financing of financing.
commitments for Public
V.CONVEYANCE
proof
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
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
EXHIBIT "C"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
FORM OF CITY DEED
[Attached behind this cover page]
Exhibit "C"
Form Of City Deed
55394.00049\33239203.12
AT THE REQUEST OF AND
WHEN RECORDED MAIL 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
1031Cda7447
(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
Exhibit "C"
Form Of City Deed
55394.00049\33239203.12
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 more than sixty days after written notice from the Grantor to continue
such construction, provided that Grantor 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
4.2.2. Any rights or interests provided for the protection of the holders of such
mortgages or deed of trust.
Exhibit "C"
Forin Of City Deed
55394.00049\33239203.12
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
undeveloped land and that such development is a material element of the consideration
received by Grantor for the Property.
Exhibit "C"
Form Of City Deed
553 94.00049\3323 9203.12
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 Deficiencv. 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
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
Exhibit "C"
Form Of City Deed
55394.00049133239203.12
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,
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
Exhibit "C"
Form Of City Deed
55394.00049\33239203.12
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
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.
Exhibit "C"
Form Of City Deed
55 394.00049\3 3239203.12
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 Attorney
55394.00049\33239203.12
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"
Form Of City Deed
[NOTE: All signatures must be notarized]
Exhibit "C"
Form Of City Deed
55394.00049\33239203.12
EXHIBIT "A" TO
CITY DEED
Exhibit "C"
Form Of City Deed
55394.00049\33239203.12
RECORDING REQUESTED BY
wMD xVMCN R{GOROMAII, TNIB OCCO ANB. YNLH9 BC BNOWN BSbW. CO PAIL TAX BTAT(N6NY6 TOr
rrN%r Clerk of the Council
Am[u% City of Santa Ana
Qr," 26 Civic Center Plasa
In, Santa Arta, CA 92701
E2-361s09
Re
DFORRANWCfOt1lNT IcALI�
EXEMPT
C1 9 LOAM OCi14'82
LM A &a* a" Aep6r
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GNO[L F i�r3�♦ s['1T I .n�X' 4 39A.
MO. N yvl iaN [267 ' P
The undmsr;ned dv1,;,+ Ilml the darutn,utan' tran,frr tat i..Sl<gempt d .
❑ eompmrd on the full ealur of tie intent Nr proF[•ny rome ed. or 1.. .. ••.... ..• .....•........ ............ I..".... an ,.
❑ rvmputed n Ihr full Yatur t,,n the Yalu, of lien: or rnrumhranm or malt) i, 1waW in rcmatninF ihrrnnn Al Ihr 1 e mof •:ale. The IanJ.
Irnemrnt.
❑ YninrorPnmtrd ara Q I*Y "(. ,Sap to Ana .... and
FOR A VALUABLE CONSIDERATION, finmipt of Mhi,h i• hrr(Ly a•knaNledsd.
The Community Redevelopment Agency of the City of Santa Ana, a public U
body, corporate and politic f a
AkAtfHFA�ffAAdikkFFkldlYAk®IfAkkAk � z
hrrcbFCRANTIS, N, The City of Santa Ana, a municipal corperatioa
t �
i v
the (AllneinG dr.Nihrd real pmprrtv in ihr CLty Of Santa And j
l:uunta• of Orange , .m:r Yf lalifornia: 7
a
All that certain real property situates in tie Ste, to Df Cclifurru., of Orange, City of Santa Ana, describes in Exhibit "A", att[ened hereto
and inwrwratad herein oy t(iis reference.
The Community Redevelopment Agency Of the City of Santa Ana, a oublic
body, corporate and politic.
ATTESTa
Zell—
E8ECOTI'JE DIRECTOR/ CHAIRMA\
RECORDING SECRETARY !
I�
ZI
STATE OF «ttt
of
COENrY OF 1`s. ee
Oa
,MI"a.Yr zbe:n l9.I: rni!r.r •m!,.nnY .r:.f :n.u.
pex'aaaaBY a: • rr.:
tmoYab mr ;.3.0. t•n •: Y.n. M..l
r. xan rJ ,!.•.r.rP,rvlwn qrn •,•.,xt•,111.. wn1:.n
M:,6ta la,(..• n• �.. . I„...r, wN• r a.l :I,
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dt x o•a ... n. t• Lm..•r r r r.. Ln:I .,..i. e•, r: i ..I
�� . Lano.• of \,ear. - ��
FOR NOTARY BEAL OR STAMP
FIAIL TU .ems YTE•.tEtt. 7 u i' «:I'1 HBIE \ bV Itn 1! IU 1\I. 11\R: IF NO I' VtT1' qI TIIUB C, tt \II. 1P UDIKI'1'!:U \IN 11 f:
I�IIY 8 Alalr
RECono", RCOUM790 BY
wniwuioww.....rA..i, NI,NNI .,N..
H•.. F-Clerk of the Council
..a..« City o£ Santa Ana
arv. 2u Civic Center Plaza
a�rL Santa Ana, CA 92701
Tide Ordsr Su. EN•raw Sn. _J
.NCR,
82-361609
800
EXEMPT
C1 9 OQAM QCi14-V
SPACE ABOVE THIS LINE FOR RECORDER'S UaE
v .^
the undrniFned drriut11 that the docnmrnhre imnsitr mx I.SEXGInpt,
Q❑ —put" on the Full value of the 1.11-CR 101 lc- l-r ' wnayed. nr in �•��•���•"�� '""'"""""' •'^ and H
romputcd ou lI, full value !L>,. the raluc of Iiene ar pneumLrmlrc. remaining th.... al the lime of x.It. The land,
knrnmntn or malls is hlml.d in
❑ uninrorporatsJ am j,0 clty of .....r art,tqt,Ana
FOR A CALL'AnLE CAYSfUERATIf1S. receipt of which b herd+y n.knowledped.
The Community Redevelopment Agency of the City o£ Santa Ana.
body, corporate and politic a public
hrrb�T'ay'�- T city Of Santa Ana, a municipal Corp
oration
ion
the follnw(n¢ dlvrihed real pnywrt}' in III' CXty o£ Santa Ana
Co¢nry of Orange
. nnrlC Of IAIIIVrn I0.:
All that certain real property situated in the State o£ California. Cour.
Of Orange, City o£ Santa Ana, described in Exhibit nA", attauned hereto
`^^••••�N+rated he"Irl ey t!;is reiercnce.
This is •o eer•!•� h 6z-3616Q9
deal or f nt th^ trtc: psi in rrai
g nt dn•ad /d .. yf- rror'rty Mm?s^.
41TAG.y< a 0�--� f.oR �p I h tn.
nn R to , a F 31tfe C N /
noy^ef. 1s hpreh• nl tol•porn. i'n d rcr '—•-•
ha of the Ci• s never'^d ty th^ undttslFnmd o. fi p,. F,.ay. rnm••ntn.
so. 50-15 Y Cnmetl rum,". rr'r + noent on 1'.•_
Rr"t^r Cons.4P•.•g pt ai •S• COWptl n'lopLMnon'octohnrrC^ r b'Y uti on
rreor4R• or h • Ic �r Resth•
#or there y s hid
Dates nu:n Lied of:'1 eor.
e=�— }ty
€tY wulna;.•r
STATE OF CALIFORNIA)
COUNTY OF ORANGE I SS
On
me, a
}Tie E
Redeve obi ve ret r nn ecor 11g e
Pment Agency of the City of San
corporate and politic, of the State of
Persons who executed the within tnstrum
of acknowledged to me that they executed t
NITNESS Illy hand and official seal,
Signature
t cyptlG or prince "----
Civil Code Sec. 1191
On It
same.
for Said State.
22 __ and
It known to me tc be
Of Said agency, and
OFFICIAL SEF.L�
MICHEAL N GREEi'v
NOta¢T aUBLIC • CALIIaj MIA
Im
fmR:6F lmahRy �� II
al' mRB aPIRa AS6 •L`°'I
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7
■
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
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
55394.0004%33239203.12
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.
7.1.2 Maintenance Defciencv. 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
55394.00049\33239203.12
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 "W
Form Of Notice Of Agreement
55394.00049\33239203.12
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 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 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
UR
City Manager
Exhibit "D"
Form Of Notice Of Agreement
5 5394.00049\3 3239203.12
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
DEVELOPER
CARIBOU INDUSTRIES, INC.
Dated: By:
Its
[ALL SIGNATURES MUST BE NOTARIZED]
Exhibit "D"
Form Of Notice Of Agreement
55394.00049 V 3239203.12
EXHIBIT "A"
TO
NOTICE OF AGREEMENT
Property Legal Description
[Attached behind this cover page]
Exhibit "D"
Form Of Notice Of Agreement
553 94.00049\3 323 9203.12
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 at, 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 of 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
55394.00049W239203.12
EXHIBIT "E"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
FORM OF OFFICIAL ACTION OF DEVELOPER
[Attached behind this cover page]
Exhibit "E"
Foiw Of Official Action Of Developer
55394.00049\33239203.12
CERTIFICATION OF CORPORATION AUTHORITY
Caribou Industries, Inc., a Nevada Corporation (the "Corporation"), does certify that any one (1)
of the following named persons:
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
2v for reference purposes only (the "Agreement"), to purchase certain property,
generally, 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.
Title: ?
Name:
Exhibit "E"
Form Of Official Action Of Developer
55394.00049\33239203.12
EXHIBIT "F-1"
AND
EXHIBIT "F-2"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Scope of Development/Site Plans
Iim
fill
Scope of Development
171 Residential Units
75 Room Hotel
13,419 Commercial Space
46 Parking spaces
444 Parking Spaces
Exhibit IT"
Scope of Development/Site Plan
55394.00049\33239203.12
EXHIBIT "G"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
May of Proiect Site
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55394.00049\33239203.12
201 West 3rd Street, Santa Ana CA 92701
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Exhibit "G"
Map of Project Site
32
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EXHIBIT "H"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
COMMUNITY WORKFORCE AGREEMENT (2017)
Exhibit "H"
(Community Workforce Agreement (2017))
5 53 94,00049\33 23 9203.12
INSURANCE NOT REQUIRED A-2017-189
WORK MAY PROCEED
CLERK Of' C �NCJL
DATE SEP 01 201 T a )
(9: CAO tz)
59wkti Carv,4(6
COMMUNITY WORKFORCE AGREEMENT
BY AND BETWEEN
THE CITY OF SANTA ANA
Im
LOS ANGELES/ORANGE COUNTIES
BUILDING AND CONSTRUCTION TRADES COUNCIL
AND THE SIGNATORY CRAFT COUNCILS AND UNIONS
TABLE OF CONTENTS
Page
ARTICLE 1
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
LABORIMANAGEMENT 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
CITY OF SANTA ANA
COMMUNITY WORKFORCE AGREEMENT
This Commuuuty 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 L3 "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. L7 3 City of Santa Ana
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 1.11 "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
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 23 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 Auplicabiliiv 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 Workforce Agreement
6.22.17 5 City of Santa Ana
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; clerics; 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;
2.53 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
2.5.10 Coverage Exception This Agreement shall not apply if the City receives finding
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 Pro iect 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/IBEW 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 Workforco Agreement
6.22.17 7 City of Santa Ana
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 trust 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 CjW 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 Worlc 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 Recognition The Contractor recognizes the Trades Council and the Unions as
the sole and exclusive bargaining representative for the employees engaged in Project Work.
Phial Draft Community Workforce Agreement
6.22.17 8 City of Santa Ana
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 bave 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 construction 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 Draft Community Workforce Agreement
6,22.17 9 City of Santa Ana
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 Emplovment 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 County.
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' biring 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,
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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 33. 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 performing 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.
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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 determining 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.
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Section4.2 Stewards
4.2.1 Each signatory Union shall have the right to dispatch a worldng 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, noncontiguous 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 sball 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.
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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 ('/2) 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
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6.22.17 14 City of Santa Ana
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 (r/z) 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 undertaken 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
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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 Sioppages 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.
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6.22.17 16 City of Santa Ana
Section 7.3 Standing to Enforce, The City, the CWA Administrator, or any Contractor
affected by ari 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 mud 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 now 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 terns 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,
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6.22.17 17 City of Santa Ane
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 term 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 least 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.
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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 borne 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
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6.22.17 19 City of Santa Ana
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 Assignment of Worlc 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 Kirsch, 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
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6.22.17 20 City of Santa Ana
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 rates 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
(t) 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 (anal 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;
Filial Draft Community Workforce Agreement
6.22.17 21 City of Santa Ana
(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 Commmiity Workforce Agreement
6,22.17 22 City of Santa Ana
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 TreatmeThe 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 Harmonv 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, shalt 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
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 I 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
extensions 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 Community Workforce Agreement
6,22.17 24 City of Santa Ana
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 113 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
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 Safetv 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 Trainin 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
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
WORDING 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 Equi ent 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 Drain Community Workfome Agreement
6.22.1.7 27 City of Santa Ana
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 JAC 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 Coinwittee 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 Work and estimated
number of craft workers needed. The Committee or an appropriate subcommittee, may review
such reports and make any recommendations for improvement, if necessary, including increasing
Final Draft Community Workforce Agreement
6.22.17 28 City of Santa Ana
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 Claus o 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
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 blan]ic]
Final Aran Community Workforce Agreement
6.22.17 30 City of Santa Ana
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
M.
ATTEST:
BY
Maria D. Huizar
Clerk of Council
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
LOS ANGELES/ORANGE COUNTIES
BUILDING & CONSTRUCTION
TRADES COUNCIL
By. /12, / !/ �
Ron Miller
Executive Secretary
Final Draft Community workforce Agreement
6.22.17 31 City of Santa Ana
LOS ANGELES/ORANGE COUNTIES BUILDING AND CONSTRUCTION
Asbestos Heat & Frost Insulators (Local 5)
Boilermakers (Local 92)
Bricklayers & Allied Craflworkers (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
. \—
Final Draft Community Workforce Agreement
6.22.17 32 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: f 1 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
ATTACHMENT B
FIRST TIER "LIP
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
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
90.72.E
Los Alamitos
99740
Seal Beach
90742
Sunset Beach
90743
Surfside
92602
Irvine
92.603
Irvine
9.260
Irvine
605
Huntington Beach
92606
Irvine
92607
Laguna Niguef
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 Ana
92629
Dana Point
92030
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
22658-
Newport Beach
92659
Newport Beach
92660
Newport Beach
92661
Newport Beach
92662
Newport Beach
92663
Newport Beach
92,672
San Clemente
92673
San Clemente
92674
San Clemente
92675
San ]uan Capistrano
92676
Silverado
92677
Laguna Niguel
92678
Trabuco Canyon
92679
Trabuco Canyon
92683
Westminster
92604
Westminster
92685
Westminster
92688
Rancho Santa Margarita
92690
Mission Viejo
992691
Mission Viejo
92692
Mission Viejo
92593
San 7uan Capistrano
92694
Ladera Ranch
92697
Irvine
92698
Aliso Viejo
92708
Fountain Valley
92709
Irvine
92710
Irvine
92728
Fountain Valley
92780
Tustin
992781,
Tustin
6/28/2016 Draft PLA 36 City of Santa Ana
22782
Tustin
92801
Anaheim
928Q2
Anaheim
92803
Anaheim
22904
Anaheim
92805
Anaheim
92806
Anaheim
92807
Anaheim
92808
Anaheim
92809
Anaheim
92811
Atwood
92812
Anaheim
92.814
Anaheim
92815
Anaheim
92816
Anaheim
92817
Anaheim
92821
Brea
92822
Brea
92823
Brea
92825
Anaheim
92831
Fullerton
92832
Fullerton
2833
Fullerton
92834
Fullerton
92835
Fullerton
92836
Fullerton
92837
Fullerton
92838
Fullerton
92840.
Garden Grove
92841
Garden Grove
92842
Garden Grove
29 843
Garden Grove
92844
Garden Grove
92845
Garden Grove
9 846
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
Orange
Orange
Placentia
Placentia
Yorba Linda
Yorba Linda
Yorba Linda
Anaheim
6/28/2016 Draft PLA 38 City of Santa Ana
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 fidfill the
hiring requirements for this project. After faxing your request, please call the Local to verify receipt and substantiate their
capacity to frrmish 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 ftom
Veterans, regardless of where they reside, and workers residing; rs 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 proposes, 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:
Contact Phone:( 1
CONTRACTOR USE ONLY
Fax#
Issued By: _
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 workerts) report to tae tollowmg work address indicated below:
Project Name: Site; Address;
Report to:
Comment or Special Instructions:
On -site Tel: On -site Pax:
6/28/2016 Draft PLA 39 City of Santa Ana
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 u
No
GENERAL DISPATCH FROM OUT OF WORK LIST
Yes
No
6/28/2016 Draft PLA 40 City of Santa Ana
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
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.
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
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.
e. 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 Work 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
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., slimed 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
6/2812016 Draft t'LA 44 City of Santa Ana
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 heretnder
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. Auy
modifications thereto must be accomplished pursuant to collective bargaining negotiations
between the parties.
6/20016 Draft PLA 45
City of Santa Anna
DRUG ABUSE PREVENTION AND DETECTION
APPENDIX A
CUTOFF LEVELS
SCREENING SCREENING CONFIRMATION
CONFIRMATION
DRUG
METHOD
LEVEL**
METHOD
LEVEL
Alcohol
EMIT,
0.02%
CG/MS
0.02%
Amphetamines
EMIT
1000 ng/m*
CG/MS
500 ng/ml*
Barbiturates
EMIT
300 ng/ml
CG/MS
200 ng/ml
Benzodiazepines
EMIT
300 ng/ml
CG/MS
300 ng/ml
Cocaine
EMIT
300 ng/ml*
CG/MS
150 ng/ml*
Methadone
EMIT
300 ng/ml
CG/MS
100 ng/ml
Methaqualone
EMIT
300 ng/ml
CG/MS
300 ng/ml
Opiates
EMIT
2000 ng/ml*
CG/MS
2000 ng/ml*
PCP (Phencyclidine)
EMIT
25 ng/ml*
CG/MS
25 ng/ml*
THC (Marijuana)
EMIT
50 ng/ml*
CG/MS
15 ng/ml*
Propoxyphene
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
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 Aria
EXHIBIT "I"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
HOTEL OPERATING AGREEMENT
Exhibit "I"
(Hotel Operating Agreement)
55394,00049\33239203.12
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 CLERIC
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 definitions 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 7
55394A0049\33266069.5
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
5 5394.00049\3 3266069.5
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.
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 aclmowledges 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
55394.00049\33266069.5
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 An
20 Civic Center Plaza (M-30)
P.O. Box 1988
Attention: City Clerk
With courtesy copy to
City of Santa An
Page 4 of 7
553 94.00049\3 3266069.5
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
5 5394.00049\3 3266069.5
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 Party'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 fallowing page]
Page 6 of 7
5 5394.00049\3 3266069.5
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:
C6.1131 Mil
By:
Nam
Attest:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
Page 7 of 7
55394.00049\33266069.5
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.
EXHIBIT "J"
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
OPTION TO PURCHASE AGREEMENT
Exhibit "J"
(Option to Purchase Agreement)
553 94.00049\3 323 9203.12
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
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
2
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
3
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
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 funding 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.
5
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
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.
7
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 party 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 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 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 hnprovements 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.
8
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
It. 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
7
such further 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 Dav 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.
10
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-
fulfilhnent 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 hndemnified 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
11
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 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. 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
12
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]
13
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of
the Effective Date.
OPTIONEE: CARIBOU INDUSTRIES, INC.
0
Name:
Its:
OPTIONOR: CITY OF SANTA ANA, a public body, corporate
and politic
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.
Option Agreement
14
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
A-1
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.
EXHIBIT B
LEGAL DESCRIPTION OF PARCEL
ol
82-•361609
MmzBPr •A"
A11 of that certain real property situated in the State of
/ Californian County of Orange, City of Santa Ana, described as
follows:
Parcel 1:
i All of Lots 2, 3, 6 and the Southerly 10.00 feet of the
Northerly 20.00 feet Of Lot 4 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 Eaet 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 Anar a certified copy of which was recorded February
11, 1982, as Document No. 92-051577 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 1,10,00 feet,
measured at right angles, Eras 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 In Book 2,
Page 51 of Miscellaneous Records of Los Angeles County,
California, as reserved in the Deed to J.R. Lioberg at 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 Ll of the Town of Ssnta Ara, as
per Nap 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 Aaid Block
11, as a party wall, as granted by that certain Agreement,
dated July 1, 1919 by and betweun ti.R. Andre, also known as
Roy Andre, at al, as parties of the first part, and L.J.
Carden at al, as parties of the second part, recorded August
19, 1919 in Book 341, page 362 of Deeds, Records of Orange
County, California.
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: 12020
OPTIONEE:
CARIBOU INDUSTRIES, INC. aNevada
Corporation
By:
Name:
Its:
C-1
EXHIBIT "IC"
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 "I{"
(Parking Operations Agreement)
55394.00049\33239203.12
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
55394,00049\33221248.8
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 "Party"). 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 3rd 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 Panting 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
55394.00049\33221248.8
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, hic. 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
55394.00049\33221248.8
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 anytime 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.
3.21 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
55394.00049\33221248.8
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
55394.00049\3 3221248. 8
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 future. 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 hisurance 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:
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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
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55394.00049W221248.8
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
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55394.0004M 3221248.8
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
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55394.0004%33221248.8
(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
DEFAULTS AND TERMINATION
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 of ten 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.
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553 94.00049\3 3221248.8
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 Authoritv. 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]
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55394.00049\33221248.8
SIGNATURE PAGE
TO
GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION
AND MAINTENANCE AGREEMENT
By and Between
CITY OF SANTA ANA AND CARIBOU INDUSTRIES, INC.
CITY OF SANTA ANA: DEVELOPER:
Attest:
By:
City Clerk
APPROVED AS TO FORM
By:
City Attorney
55394.00049\33221248.8
m
EXHIBIT A
LEGAL DESCRIPTION
55394.00049\33221248.8
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 at, 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 at, as parties of the first part,
and L.J. Carden et at, as parties of the second part, recorded August 19, 1919 in Book 341,
page 362 of Deeds, Records of Orange County, California.
EXHIBIT B
City Easement and Developer Easements
55394.00049\33221248.8