Loading...
HomeMy WebLinkAboutSOCIAL DISTRIBUTION INC.INSURANCE NOT ON FiLkw A-2017-369-39 WORK MAY NOT pROCEEC APR 2 8 2021 CLERK OF COUNCIL DATE: OPERATING AGREEMENT FOR NON -RETAIL COMMERCIAL CANNABIS BUSINESSES PPJA to ) (fl1i?-0" This Operating Agreement ("AGREEMENT") is dated 03106, 2021 between the City of Santa Ana, a charter city and municipal corporation ("CITY") and Social Distribution Inc., ("OPERATOR"), collectively referred to as "the Parties". This AGREEMENT shall become effective on the date that OPERATOR is issued a Regulatory Safety Permit by CITY for the operation of a commercial cannabis business conducting ADULT -USE AND/OR MEDICINAL DISTRIBUTION, services in whole or in part of its operations transacted and carried -on by OPERATOR at the following subject property location, 1712 Newport Circle unit C, Santa Ana, CA 92705. 1. Public Benefit. A. Intent. The purpose of this Operating AGREEMENT is to ensure positive community impacts from commercial cannabis business operations through local hiring and local sourcing, community benefit and sustainable business practices, and the collection of required fees and taxes as applicable for the operation of a commercial cannabis business and to provide mitigation options to be used by CITY to compensate for impacts to CITY services, residents, and/or businesses as set forth in Santa Ana Municipal Code Chapter 40. The Parties agree that this AGREEMENT confers substantial private benefits on OPERATOR which should be balanced by commensurate public benefits. As part of the cannabis Regulatory Safety Permit process, OPERATOR agrees to enter into this AGREEMENT. OPERATOR acknowledges that CITY and OPERATOR have had extensive negotiations and proceedings prior to entering into this AGREEMENT. OPERATOR has elected to execute this AGREEMENT as it provides OPERATOR with important economic benefits. Accordingly, the Parties intend to provide consideration to the public to balance the private benefits conferred on OPERATOR by providing mitigation measures to the public and to pay for CITY services. B. Local Hiring and Sourcing. OPERATOR agrees to use its reasonable efforts to hire qualified City of Santa Ana residents living in Santa Ana to work at its commercial cannabis businesses. OPERATOR shall also use reasonable efforts to retain the services of qualified contractors and suppliers who are located in the City of Santa Ana or who employ a significant number of City of Santa Ana residents. OPERATOR shall make a good faith effort to advertise on various social media sites, at local job fairs, and through public agencies and organizations. C. Community Benefit and Sustainable Business Practices Plan. OPERATOR agrees to submit a Community Benefit and Sustainable Business Practices Plan ("Plan") to CITY that is hereby attached and incorporated into this AGREEMENT as ("EXHIBIT AI). Said Plan shall detail OPERATOR's experience working with community -based groups such as school districts, college districts, city or county agencies, non-profit organizations, artist or downtown groups. The Plan shall also include a description of OPERATOR's efforts for recruiting and hiring local persons and businesses. Said Plan must also outline commitments by OPERATOR to engage its staff in community service events or programs in the City of Santa Ana. Plan must also outline and address sustainable business practices. and commitments as a condition of renewal/extension of this AGREEMENT upon expiration of the initial term and any extensions, 2. Records Inspection, Examination and Audit. OPERATOR acknowledges and agrees that CITY is empowered under this Agreement to inspect, examine and audit OPERATOR's books and records (Including tax filings and returns), to ascertain the amount of operating fees due and owing, CITY or its authorized agents shall have the power and authority to conduct a full inspection, examination and audit of such books and records (including tax filings and returns) at any reasonable time, including but not limited to, during normal business hours. in the event any such books, records, tax filings and returns cannot be made fully available within the City of Santa Ana, OPERATOR acknowledges and agrees that it shall reimburse CITY for the cost of all transportation, lodging, meals, portal-to-portal travel time, and other incidental costs reasonably incurred by CITY or its authorized agents in obtaining said full inspection, examination and audit. in the event that said records inspection, examination and audit determines that a net operating agreement fee payment deficiency of greater than Five Percent (5%) exists; OPERATOR acknowledges and agrees that it shall reimburse CITY for the full cost of said records inspection, examination and audit reasonably incurred by CITY or its authorized agents. 3. Term, This AGREEMENT shall start on the date indicated above and shall terminate on December 31, 2022 regardless of starting date unless terminated earlier in accordance with Section 9 or 10 of this AGREEMENT, 4. Business License Required. A valid City of Santa Ana Business License is required for all persons engaged in transacting and carrying on any commercial cannabis business activity in the City of Santa Ana. It Is unlawful for any person or legal entity to commence, transact or carry -on cannabis business activity in the City of Santa Ana without first having procured a City of Santa Ana cannabis business license. 5. Operating Commercial Cannabis Business OPERATOR shall not operate a commercial cannabis business authorized under the Santa Ana Municipal Code unless: A. It is the holder of a valid Regulatory Safety Permit issued by CITY in accordance with the procedures and requirements of Article 1 of Chapter 40, of the Santa Ana Municipal Code; and B. At such time as the State of California requires cannabis business facilities and businesses to hold a valid license or permit Issued by the State of California, It also holds such license or permit; unless, however, such permit or license is subsequently not required by the State of California for the type of cannabis facility or business operation that is the subject of this AGREEMENT. C. OPERATOR remains in compliance with any and all other laws and regulations pertaining to commercial cannabis businesses. D. OPERATOR shall remain in compliance with the operating requirements applicable to commercial cannabis businesses contained in the City's Municipal Code, 6. OPERATOR Indemnification of CITY. A. OPERATOR will indemnify CITY from any claims, damages, injuries, or liabilities of any kind whatsoever sustained or incurred by CITY resulting from entering into this AGREEMENT, and OPERATOR's performance and/or breach of this AGREEMENT. OPERATOR agrees to defend, at Its sole expense, any action against CITY, its agents, officers, and employees related to this AGREEMENT. OPERATOR agrees to indemnify and reimburse CITY for any court costs and attorney fees that CITY may be required to pay as a result of any legal challenge related to this AGREEMENT and/or CITY's approval of a Regulatory Safety Permit. CITY may, at Its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the OPERATOR of its obligation hereunder. 7. OPERATOR Compliance with Laws. OPERATOR agrees to comply with the City of Santa Ana Charter and Municipal Code, including but not limited to Chapters 18, 21 and 40, and the laws and regulations of the State of California. 8. Default and Termination for Cause. This AGREEMENT may be terminated by CITY for cause with thirty (30) days' written notice to OPERATOR. Cause as used in this section, is defined as; A. Failure to comply with the terms of the City of Santa Ana Cannabis Regulatory Safety Permit issued to OPERATOR by CITY; B. Failure of OPERATOR to maintain a valid active City of Santa Ana Business License as the commercial cannabis business approved by the Regulatory Safety Permit and as operating; C. Failure of OPERATOR to comply with the requirements of the Community Benefits and Sustainable Business Practices Plan; D. Unauthorized transfer by OPERATOR of the City of Santa Ana cannabis business Regulatory Safety Permit issued by CITY; E. Failure by OPERATOR to accurately report gross receipts information or other data necessary for CITY to calculate/confirm operating agreement fees; F. Failure by OPERATOR to pay operating agreement fees and related reimbursement costs within thirty (30) days of the date those fees are due; G. Failure by OPERATOR to cooperate with CITY or CITY's authorized agents in any inspection, examination and audit of OPERATOR's commercial cannabis business books and records (including tax filings and returns). H. OPERATOR shall cure the default resulting from the cause for termination within thirty (30) days of the date of the notice of termination. If OPERATOR fails to cure the default within thirty (30) days of the date of the notice of termination for cause, this AGREEMENT will be terminated. I. This AGREEMENT will automatically terminate If. - I. OPERATOR's Regulatory Safety Permit is revoked by CITY or is not renewed by CITY, or H.OPERATOR transfers its Regulatory Safety Permit pursuant to Santa Ana Municipal Code section 40-12. 9. Termination Without Cause. Upon mutual written agreement of the Parties, this AGREEMENT may be terminated with thirty (30) days' notice. 10. Termination - Effect on Prior Obligations Upon any termination of this AGREEMENT, OPERATOR's obligation to report and remit operating agreement fees due and payable under the terms of this AGREEMENT for each month or fraction of a month of a cannabis business operation engaged in within the City of Santa Ana prior to termination of this AGREEMENT shall continue to be in effect. Past due penalties and late interest charges shall continue to accrue and be applicable until all operating fees due under this AGREEMENT are paid in full. OPERATOR's liability for any remaining unpaid past due penalties and/or late interest charges shall continue until fully satisfied, 11. Remedies. A. It is acknowledged by the parties that CITY would not have entered into this AGREEMENT if it were to be liable in damages under this AGREEMENT, or with respect to this AGREEMENT or the application thereof, except as hereinafter expressly provided. B. Each of the parties hereto may pursue any remedy at law or equitable relief available for the breach of any provision of this AGREEMENT, except that CITY shall not be liable in monetary damages, unless expressly provided for in this AGREEMENT. C. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Orange County California before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures pursuant to JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having Jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 12. Reimbursement Clause. In consideration of the time and costs Incurred by CITY in the drafting and implementation of this AGREEMENT, OPERATOR agrees to pay 12,M to CITY within thirty (30) days of execution of this AGREEMENT. 13. Attorney Fees and Costs. In any action or proceeding between CITY and OPERATOR brought to Interpret or enforce this AGREEMENT, or which in any way arises out of the existence of this AGREEMENT or is based upon any term or provision contained herein, the "prevailing party" in such action or proceeding shall be entitled to recover from the non -prevailing party, in addition to all other relief to which the prevailing party may be entitled pursuant to this AGREEMENT, the prevailing party's reasonable attorneys' fees and litigation costs, in an amount to be determined by the court. The prevailing party shall be determined by the court In accordance with California Code of Civil Procedure Section 1032. Fees and costs recoverable pursuant to this Section 17 include those incurred during any appeal from an underlying judgment and in the enforcement of any judgment rendered in any such action or proceeding. 14. Notice, Any notice, tender, demand, delivery, or other communication pursuant to this AGREEMENT shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this section, to the following persons: To CITY: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714-647-6956 Copies to: Executive Director — Planning and Building Agency City of Santa Ana 2.0 Civic Center Plaza (M-20) P.O. Box 1988 Santa Ana, California 92702-1988 Fax 714-973-1461 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P,O. Box 1988 Santa Ana, California 92702-1988 Fax 714-647-6515 5 To OPERATOR: NAME Robert J. Thompson Social Distribution Inc. ADDRESS 1712 Newport Circle Unit C , SANTA ANA, CA 92705 Tel (657)218-4238 Email bobthompsonoc@gmail.com A party may change its address by giving signed notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax or email document attachment, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays, or City Hall closure dates shall be excluded. 15. Exclusivity and Amendment. This AGREEMENT represents the complete and exclusive statement between CITY and OPERATOR, and supersedes any and all other agreements, oral or written, between the parties. This AGREEMENT may not be modified except by written instrument signed by CITY and by an authorized representative of OPERATOR. Each party to this AGREEMENT acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 16. Assianment OPERATOR may not assign or transfer any interest herein without the prior written consent of CITY and any such assignment or transfer without CITY's prior written consent shall be considered null and void. 17. Discrimination. OPERATOR shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, disability, gender identity, gender expression, medical condition, genetic information, military or veteran status. as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. OPERATOR affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local labor laws and regulations. 18. Jurisdiction -Venue, This AGREEMENT has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this AGREEMENT shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action M. or proceeding that may be brought or arise out of, in connection with or by reason of this AGREEMENT. 19. severability. If any part of this AGREEMENT is found to conflict with applicable local or state laws or regulations, such part shall be Inoperative, null and void insofar as it conflict with said laws or regulations, or may be modified or suspended as may be necessary to comply with any local or state law or regulation but the remainder of the AGREEMENT shall continue in full force and effect. 20. Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument, The execution of this AGREEMENT may be by actual, facsimile or electronic signature. 21. Disclaimer. Despite California's commercial cannabis laws and the terms and conditions of this AGREEMENT or any Regulatory Safety Permit issued pertaining to OPERATOR or the hereinabove specified property location, California commercial cannabis cultivators, transporters, distributors, cannabis testing facility/laboratory businesses or possessors may still be subject to arrest by state or federal officers and prosecuted under state or federal law. The Federal Controlled Substances Act, 21 USG § 801 at. seq., prohibits the manufacture, manufacturing, and possession of cannabis without any exemptions for medical or non -medicinal use. 22. Authority to Bind. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this AGREEMENT, and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any injuries or damages to CITY in the event that such authority or power is not, in fart, held by the signatory or is withdrawn. -Signature Page Below- A-2017-369-39 IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT the date and year first above written. ATTEST: � �z DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Jose Montoya Deputy City Attorney RECOMMENDED FOR APPROVAL: Minh Thai, Executive Director Planning & Building Agency CITY OF SANTA ANA KRISTINE RIDGG City Manager OPERATOR LEGAL - NAME: SIGNATORY NAME: TITLE: TAXPAYERID: Signature Community Benefit and Sustainable Business Practices Plan The Social Distro deeply values Santa Ana community, especially its residents. As such, Social Distro is committed to supporting the City and its events and programs, community - based groups, schools and non -profits as well as prioritizing local hiring and business partnership practices. Likewise, the Social Distro has adopted clean, green business practices and seeks to partner with cannabis businesses who also value sustainability. Commitment to Support Community -Based Groups Without community service, we would not have a strong quality of life. It's important to the person who serves as well as the recipient, It's the way in which we ourselves grow and develop. Dorothy Height, Civil Rights Activist, Presidential Medal of Freedom Recipient (1994) and Congressional Gold Medal (2004). Schools The Social Distro knows that children are the future and hi hly values quality public education. Accordingly, we are committed to donating $ . "0 annually to the Santa Ana Public School Foundation, which develops financial resources for programs and activities that will maximize student achievement, including support for preforming arts, technology, sciences, athletics, scholarships and educators. To the extent the Santa Ana School District permits us to take a more active role in supporting their needs, the Social Distro will continue to explore these options with the School District directly. Habitat for Humanity The Social Distro is dedicated to supporting as many social impact causes as possible. We have double the effect when we are able to source fixtures and furnishings from a local non- profit like Habitat for Humanity. By purchasing previously owned materials, we are furthering our sustainability goals as well. We believe Since we are across the street from Habitat for Humanity, we will donate at least 10 hours of community service time per employee per year to Habitat for Humanity and compensate our staff during their volunteer time. We believe that community service enhances character, and so, we are committed to helping our employees grow into the best version of themselves. Community Support: Local Hiring and Local Business Local Hiring Presently, all owners and employees are Orange County residents, with 60% of them being Santa Ana residents; we only have one employee at present, but she currently lives in Santa Ana. We will aim to maintain this minimum ration. To achieve this goal, the Social Distro will utilize the City of Santa Ana WORK Center, which offers a one -stop solution to enhance our workforce development. Through the WORK Center, we hope to be able to attract and retain employees who live in the City of Santa Ana and the surrounding communities. The WORK Center has immediate access to work -ready candidates to assist with meeting our local recruitment goals. While being cognizant to avoid discriminatory hiring practices, we Will do our best to hire Santa Ana residents. This is why working with the City's WORK program is imperative. We will do our best to hire as many Santa Ana residents as possible. We will also work with the City's Veterans Resource Center to provide job opportunities to those who have dedicated their lives to protecting and ensuring our freedom. Local Business Partnerships The Social Distro intends to integrate with the surrounding business community. If we need repairs to our distribution vehicles, we will use Dents No More, located just down the street from our facility at 2144 S Wright Street. If we host office lunches, we will order from local small businesses like TK Burgers around the corner at 2210 S Lyon Street or Mega Subs at 2216 S Grand Avenue or Gail's Grand Avenue Lunch Co. at 2096 Grand Avenue. For celebrations, we will take a short ride to Downtown Santa Ana to experience all the entertainment and dining experiences It has to offer. We will also work closely with the cultivators, manufacturers, retailers and even other distributors in Santa Ana. Additionally, we have joined the Santa Ana Chamber of Commerce to make even greater and deeper connections with other business owners in Santa Ana. To the extent we need goods or services to support our business, we will seek out Santa Ana businesses or with the assistance of the Santa Ana Chamber of Commerce, who provides referrals to local businesses. Sustainable Business Practices The cannabis industry is built on respect for the plant and for the environment generally and we intend to honor the planet accordingly. While constructing our facility, we were cognizant of our obligations to take care of the environment. To that end, we installed low -flow toilets for enhanced water efficiency, LED lights to reduce energy and will be purchasing no or low emission vehicles to be used for transporting cannabis goods throughout the State of California. To the extent we have control over the packaging and labeling used for our distribution and co -packing transactions, we will endeavor to source sustainable, biodegradable, hemp plastic or recycled ocean packaging. Additionally, we will promote a healthy environment by providing a monthly gym membership to our employees and encouraging them to use public transportation to work at our cost.