HomeMy WebLinkAbout25J - AGMT - BID OPERATING AGMTREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JANUARY 7, 2014
TITLE:
AMENDMENT TO BUSINESS IMPROVEMENT
DISTRICT OPERATING AGREEMENTS
CITY MANAGER
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CLERK OF COUNCIL USE ONLY:
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❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute the attached Amended and
Restated Operating Agreement with Downtown Inc. and with the Santa Ana Business Council
Inc., to establish a "revolving fund" account in the amount of $20,000 for each entity, subject to
non - substantive changes approved by the City Manager and City Attorney.
DISCUSSION
On September 16, 2013, the City executed operating agreements with Downtown Inc. and the
Santa Ana Business Council Inc., for the programming and distribution of the Downtown Santa
Ana Business Improvement District (BID) assessment funds. The agreements contain provisions
to ensure proper administration and distribution of the funds, such as those pertaining to the
annual budget, financial record keeping, fund distribution, and board composition and meeting
requirements.
The amendment establishes a "revolving fund" account in the amount of $20,000 in order to
finance the organizations' day -to -day operations. This revolving fund account shall be subject to
the constraints of NS -1715 and may be replenished upon providing documentation that the funds
in the account have been properly expended. The other amendment is reducing the Fidelity
Bonding requirement from $1,000,000 to $500,000. There are no other changes to the operating
agreements.
The terms of these Operating Agreements commenced on September 17, 2013 and terminate on
September 17, 2016, unless terminated sooner due to any violations of the provisions in the
Agreement, or if the BID is not approved in any given year. The Agreements will be renewed
automatically in one year renewal terms, unless either party gives at least two months' notice of
termination.
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Amendment to BID Operating Agreements
January 7, 2014
Page 2
FISCAL IMPACT
There is no fiscal impact associated with this action.
Nancy Fong, AIPR - --°
Interim Executive Director
Community Development Agency
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Exhibit: 1. Amendment — DTI
2. Amendment — SABC
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EXHIBIT 1
AMENDED AND RESTATED OPERATING AGREEMENT
This AMENDED AND RESTATED OPERATING AGREEMENT made and entered into
on , by and between the City of Santa Ana, a charter city and
municipal corporation duly organized and existing under the Constitution and laws of the State of
California, hereinafter referred to as "City," and Downtown Incorporated, hic., a California non-
profit corporation, hereinafter referred to as "DTI."
RECITALS
A. Whereas the City Council of the CITY previously established a community management
district (hereinafter the "CMD ") designated as the "Downtown Community Management
District" (hereinafter the "DISTRICT "); and
B. Whereas assessments were supposed to be levied annually against the assessable parcels in
the DISTRICT commencing with Fiscal Year 2009 -2010 and continuing through Fiscal
Year 2013 -2014; and
C. Whereas the CITY was to use the assessments to contract for the administration of a
program of improvements and activities in connection with the DISTRICT for Fiscal Years
2009 -2010 through 2013 -2014; and
D. Whereas due to various reasons the City Council on February 4, 2012 repealed the entirety
of the CMD and did not levy the DISTRICT assessment to fund the CMD services for
calendar year 2013; and
E. Whereas with the repeal of the CMD, several downtown merchants and property owners
have expressed an interest in reactivating the Downtown Santa Ana Business Improvement
Area (BID) so that they could continue to receive funding to promote the safety,
maintenance, and overall economic stability of the downtown area; and
F. Whereas the City Council agreed that if there was sufficient support by those businesses
that would be impacted by assessments, that it would reactivate the prior Downtown
Business Improvement Area which was established on February 6, 1984 pursuant to
Ordinance NS -1715 (attached hereto and incorporated herein as Exhibit A) ; and
G. Whereas the City Council further agreed in a Settlement and Release Agreement with DTI
that, should the BID be reactivated, DTI would receive 50% of the BID revenues in any
given calendar year and remaining 50% would be distributed to a new merchants' nonprofit
group serving independently of DTI, subject to an operating agreement for each group; and
H. Whereas the Santa Ana Business Council has emerged as the new merchants' nonprofit
group that has expressed an interest in obtaining the other 50% of BID funds to be spent in
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furtherance of the overall economic stability of the downtown area consistent with the
requirements of NS -1715; and
I. Whereas the City Council has "reactivated" the BID by its approval of an assessment report
for calendar year 2013 outlining the proposed budget and activities to be conducted in the
downtown area; and
J. Whereas a public hearing was held, and there being no majority protest against the approval
of the assessment report and levy of the assessment; and
K. Whereas the City and DTI under this Operating Agreement propose to (1) confirm that DTI
will receive 50% of the assessments collected each calendar year for which an assessment is
levied, (2) to provide that DTI's use of the assessment funds will be consistent with the
requirements of NS -1715, generally, and the approved calendar year's assessment report
specifically, (3) to provide for auditing of DTI BID Funds, and (4) ensure that DTI meetings
are compliant with the Ralph M. Brown Act [Government Code Sections 54950, et seq].
WHEREFORE, and in consideration of their mutual and respective covenants and promises
hereinafter set forth, the original agreement dated September 13, 2013 is hereby Amended and
Restated and the parties hereto do hereby agree as follows:
ARTICLE 1
PRELIMINARY MATTERS
§ 1.01 Definitions
As used in this Agreement, the following terms shall have the following meanings:
(a) "City" means the City of Santa Ana, California.
(b) "City Council" means the City Council of the City.
(c) "City Manager" means the City Manager of the City or his/her designated
representative.
(d) "DTP means Downtown Incorporated, hie., a California nonprofit corporation.
(e) "Board" means the Board of DTI.
(f) "Term" means three (3) years commencing on September 17, 2013 and
terminating on September 16, 2016 unless terminated sooner due to any violations
of the provisions of this Agreement or if a BID assessment is not approved in
compliance with the Parldng and Business Improvement Area Law of 1989
[Streets and Highways Code Sections 36500, et seq.]. The Term of this
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Agreement shall be automatically renewed in one (1) year Renewal Terms unless
either party gives notice of termination at least two (2) months prior to the
expiration of the Initial Term or any Renewal Term.
§ 1.02 Status of DTI
(a) By its execution of this Agreement, DTI warrants that it is duly incorporated under the
laws of the State of California and that true and correct copies of its Articles of Incorporation and
Bylaws and a true and correct listing of DTI's officers and their terms of office, certified as such by
DTI's Secretary, have been filed with the Clerk of the Council.
(b) By its execution of this Agreement, City accepts and agrees to the organization of the DTI
as set forth in the above said Articles of hncorporation and Bylaws.
§ 1.03 Compensation of DTI Board Members and Meetings
(a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of
the DTI Board. When conducting meetings related to the Downtown Santa Ana Business
hnprovement Area members of the Board shall serve without compensation other than
reimbursement for expenses incurred by them in the course of the performance of services for DTI
when authorized by the DTI Board.
(b) DTI shall conduct its meetings in accordance with the Ralph M. Brown Act; the number
of board members for purposes of the Brown Act shall consist of 17 board members, with 9 board
members serving as a quorum.
§ 1.04 Changes in Officers, Articles and Bylaws
DTI shall notify the Clerk of the Council of any change in the membership of the Board and
any change in the officers of DTI. Any amendment of DTI's Articles or Bylaws shall be filed with
the Cleric of the Council.
§1.05 City Representation at Meetings of DTI
The City Manager shall be entitled to attend all meetings of DTI related to the BID and to
participate in the discussions of the Board to the same extent as the members of the Board, and DTI
shall assure that the City Manager is provided with reasonable advance notice of all meetings of
DTI. Nothing herein shall be construed to provide the City Manager with any authority to make,
second, or vote on motions, or to cause him to be counted for purposes of determining whether a
quorum exists at meetings of DTI.
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§1.06 City Residents, BID Property Owners and Business Operators on the Board
A majority of the Board shall be City residents, BID property owners, or business operators.
If the number of members who are City residents, BID property owners, or business operators
becomes less than a majority due to the death, resignation, or change of residence or business
location, DTI shall not be in default under this section, provided, however, that the next member
appointed to the Board shall be a City resident, BID property owner, or business operator.
ARTICLE 2
REPORTS AND RECORDS
AND BID FUND TRANSFERS
§ 2.01 Annual Budget and Program Report
(a) No later than November First (la) of each year (beginning November 1, 2013), DTI
shall provide the City Manager with a copy of a detailed calendar year operating budget showing
expected sources of revenue and the nature of all expected or proposed expenditures for the
forthcoming calendar year and a report on the proposed programs to be undertaken by DTI in said
calendar year.
(b) The proposed budget shall be submitted to the City Council for approval subject to
the procedures provided for in California Streets and Highway Code Section 36530 et seq. If the
proposed budget is accepted by the City Manager, it shall be submitted to the City Council for
approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City
Manager and DTI shall meet in good faith in an attempt to reach agreement on a budget. If they
are unable to do so, the City Manager shall submit the DTI's proposed budget to the City Council
for approval, in whole or in part.
(c) DTI acknowledges that its proposed budget in any given calendar year will consist of
50% of all BID assessments collected from businesses subject to the Downtown Santa Ana
Business Improvement Area as reflected in Ordinance NS -1715.
(d) DTI further acknowledges that the use of all BID proceeds will be subject to the BID
laws as currently exist and/or as may be modified in the future; and that expenditures of BID
funds will be for the purposes identified in Ordinance NS -1715.
(e) The City shall establish and maintain in its accounting system a trust fund for the
deposit of BID assessment monies collected together with a specific account which shall reflect
the deposit and expenditure reimbursement of BID assessment monies apportioned for use by
DTI pursuant to subsection (c) above.
(1) DTI shall have the option for the first year of this Agreement to request an advance of
up to twenty thousand dollars ($20,000.00) from the City upon presentment of documentation
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indicating anticipated expenses in furtherance of the purposes identified in Ordinance NS -1715.
Such written documentation shall be approved by the Executive Director of Community
Development Agency or his or her designee. Any such advance shall be deducted from BID
assessment monies collected and deposited. DTI agrees that such advance shall only apply to the
first the $20,000.00 of available funds and before any subsequent reimbursements can be made,
DTI shall sufficiently document such advance by accompanying receipts, purchase invoices, or
other permanent evidences of expenditure as may be prudently required by the City in accordance
with Generally Accepted Accounting Principles and established City accounting procedures.
(g) The City shall allow the DTI to establish a "revolving fund" account in the amount of
$20,000 in order to finance the organizations day to day operations. This revolving fund account
shall be subject to the constraints of NS -1715 and may be replenished upon presentment of
documentation that the funds in the account have been properly expended.
(h) The City shall make all reasonable good -faith efforts to deposit BID assessment
monies collected each month by the 15a' day of the month following; provided that where the 15a`
day falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall
be made the next day City Hall is open.
(i) The City shall also deposit monthly an interest payment equivalent to the average
amount of the daily balances for the period of the preceding month.
(j) The City upon depositing BID assessment monies shall notify DTI by electronic mail
of the net amount of monies available for reimbursement to DTI. Failure by DTI to receive or
acknowledge electronic mail notification shall not constitute a breach of this Agreement.
(k) The City upon receipt of a written request for reimbursement submitted by DTI for
documented expenses, shall inspect and examine each request to ensure that all expenses submitted
for reimbursement are for the purposes identified in Ordinance NS -1715 and that all expenses
submitted are sufficiently documented by accompanying receipts, purchase invoices, or other
permanent evidences of expenditure as may be prudently required by the City in accordance with
Generally Accepted Accounting Principles and established City accounting procedures.
Reimbursement requests shall be approved by the Executive Director of the Community
Development Agency or his or her designee.
(1) The amount of any approved reimbursement made by the City shall not exceed the net
funds available for such reimbursement. In the event that a reimbursement request submitted by
DTI exceeds the balance of available funds, the City shall prorate the reimbursement accordingly.
(m)The City shall make all reasonable good -faith efforts to process reimbursement
requests within 15 working days and to issue a reimbursement check for the approved amount or
make equivalent electronic payment to DTI.
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(n) In the event questions arise relating to the balance of funds available to DTI, DTI
may within 15 days of notification request an accounting by the City of the amount of net funds
available for reimbursement to DTI.
(o) In the event questions arise relating to the amount of any specific reimbursement to
DTI approved by the City, DTI may, within 15 days of such reimbursement payment, request that
the City re- evaluate the amount of such reimbursement. Thereupon the City shall re- evaluate the
amount of such reimbursement and give written notification of its decision to DTI which shall be
final and conclusive.
§ 2.02 Annual Financial Statement and Audit
Within sixty (60) days following notice by the City, DTI shall submit to the City Manager a
complete statement of DTI's revenues and expenditures and a financial audit for the preceding
calendar year prepared by an independent certified public accountant.
§ 2.03 Financial Records
DTI shall keep, or cause to be kept, true, accurate and complete records, including double-
entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to
determine the amount and nature of all revenues and expenditures. All expenditures and
transactions shall be supported by documents of original entry such as sales slips, cash register
tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and
supporting documents shall be retained by DTI for a period of three (3) years after the end of the
accounting year to which they pertain.
§ 2.04 Accounting Procedures
DTI shall maintain a system of accounting according to Generally Accepted Accounting
Practices.
§ 2.05 Inspection and Audit
City shall be entitled, during the term of this Agreement and for a period of one year
following the termination, to:
(a) inspect and examine all of DTI's books, statements, records, and supporting documents
to ascertain the correctness of DTI's financial statements. Any such inspection and /or examination
shall be conducted during normal business hours with prior 15 days written notice to DTI; and
(b) inspect and examine each request for reimbursement received from DTI to ascertain that
all expenses submitted for reimbursement are for the purposes identified in Ordinance NS -1715
and that all expenses submitted are sufficiently documented by receipts, purchase invoices, or
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other permanent evidences of expenditure in accordance with Generally Accepted Accounting
Principles and established City accounting procedures. Any such inspection and/or examination
shall be conducted during normal business hours with prior 15 days written notice to DTI.
ARTICLE 3
INDEMNITY AND INSURANCE
§ 3.01 Indemnification
DTI shall indemnify and save harmless City and its officers, agents and employees from and
against any and all claims, demands, loss or liability of any kind or nature which City or its officers,
agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as
a result of, arising out of, or in any manner connected with DTI's management and /or
administration of the BID funds.
§ 3.02 Insurance Requirement Generall
Prior to the Commencement Date (except as hereinafter otherwise provided), DTI shall
obtain at its sole cost and file with the Cleric of the Council, and maintain throughout the Term,
policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of
such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of
Workers' Compensation Insurance) shall name City as an insured or additional insured and each
liability insurance policy shall also name the officers, agents and employees of City as insureds or
additional insureds. Each such policy shall also contain a provision that no termination,
cancellation or change of coverage or (where applicable) of insured or additional insured shall be
effective until after thirty (30) days notice thereof has been given in writing to City.
§ 3.03 Liability Insurance
DTI shall provide a policy or policies of insurance which provides coverage not less than
that provided in the form of a comprehensive general liability insurance policy against liability for
any and all claims and suits for damages or injuries to persons or property resulting from or arising
out of the operations of DTI, its officers, employees, agents or assigns. Said policy or policies of
insurance shall provide coverage for both bodily injury and property damage in not less than One
Million Dollars ($1,000,000.00) combined single limit, or its equivalent.
§ 3.04 FidelityBondine
DTI shall provide a policy or policies of insurance insuring DTI against loss due to
dishonesty of DTI's officers, agents and employees. Said policy or policies shall provide coverage
in an amount of not less than $500,000.
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§ 3.05 Workers' Compensation Insurance
DTI shall provide a policy or policies of workers' compensation insurance as required by
law.
§ 3.06 Modification of Insurance Requirements
The City Manager may modify or suspend the requirements imposed on DTI by this Article
if in his reasonable determination; strict compliance is impossible or excessively costly due to
insurance market conditions.
ARTICLE 4
DEFAULTS, REMEDIES AND TERMINATION
§ 4.01 Defaults
(a) Failure or delay by either party to perform any term or provision of this Agreement shall
constitute a default under this Agreement. The injured party shall not initiate the remedies
hereinafter provided until the defaulting party has been given written notice of the default,
specifying the nature thereof, and a period of sixty (60) days to cure or correct such default.
(b) Any failure or delay by either party in asserting any of its rights or remedies as to any
default shall not operate as a waiver of any default or of any such rights or remedies, or deprive
such party of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
§ 4.02 Remedies of City
In the event of any default and failure to cure, correct or remedy the same by DTI, City may,
at City s sole discretion, in addition to or in lieu of any other remedies, exercise either of the
following remedies:
(a) Delay of any or all transfers of BID funds to DTI collected pursuant to § 2.01 of this
Agreement until such default is cured, corrected or remedied; provided such delay is approved by
the City Council.
(b) Terminate this Agreement, provided such termination is approved by the City
Council.
§ 4.03 Legal Actions
In addition to any other rights or remedies, either party may institute legal action to cure,
correct or remedy any default, to recover damages for any default, or to obtain any other remedy
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consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior
Court of the County of Orange, State of California, or in any other appropriate court in that county.
§ 4.04 Cumulative Rights and Remedies
The rights and remedies of the parties are cumulative and the exercise by either parry of one
or more such rights or remedies shall not preclude the exercise by it, at the same or different times,
of any other rights or remedies for the same default or any other default by the other party.
§ 4.05 Termination
Upon the expiration of the Term or upon the earlier termination of this Agreement as
provided in Section 1.01(f) or Section 4.02 the City shall have no further obligation to provide
funding or other assistance to DTI pursuant to this Agreement for any period following such
expiration or early termination.
ARTICLE 5
GENERAL PROVISIONS
§ 5.01 Representatives
(a) All actions authorized to be taken by City pursuant to this Agreement, without
specification in this Agreement as to the body or office so authorized, shall be deemed exercisable
on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate
any officer of the City as his or her representative with respect to any specified authority given to
the City Manager by this Agreement, and in such event the actions of such officer within the scope
of such authority shall have the same effect as if taken by the City Manager.
(b) All actions authorized to be taken by DTI pursuant to this Agreement, without
specification in this Agreement as to the body or office so authorized, shall be deemed exercisable
on behalf of DTI by DTI's governing board or by such officer of DTI as may be designated by
resolution of said governing board.
§ 5.02 Notices
Notices and written communications sent by one party to the other shall be either personally
delivered or sent by U.S. Mail, postage prepaid, to the following addresses:
(a) If sent by DTI to City:
Cleric of the Council
City of Santa Ana
20 Civic Center Plaza
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P.O. Box 1988
Santa Ana, CA 92702
With Copies to:
City Manager
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
City Attorney
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
(b) If sent by City to DTI:
Downtown Inc.
200 North Main St. 2 °d Floor
Santa Ana, CA 92701
Attention: Chairman of the Board
§ 5.03 Non - assignability
The rights and obligations of DTI under this Agreement may not be assigned or delegated
without the prior approval of the City Council.
§ 5.04 Partial Invalidity
If any term, covenant, condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions
hereof shall remain in full force and effect, and shall in no way be affected, impaired or
invalidated thereby.
§5.05 Exclusivity
Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other agreement or amendment
hereto shall be effective unless executed in writing and signed by both City and DTI.
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§5.06 Conflict of Interest Clause
DTI covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Jose Sandoval
Chief Assistant City Attorney
CITY OF SANTA ANA:
David Cavazos
City Manager
Downtown Inc.:
C
Title:
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4
EXHIBIT A REL :adg
11/22/83
Rev. 12/28/83
ORDINANCE NO, NS -1715
AN ORDINANCE OF THE CITY OF SANTA ANA
ESTABLISHING A BUSINESS IMPROVEMENT AREA
IN THE CITY OF SANTA ANA
THE CITY COUNCIL OF THE CITY OF SANTA ANA, DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1: That the City Council of the City of Santa Ana
hereby finds, determines and declares as follows:
(a) That pursuant to Section 36500 et seg, of the Streets
and Highways Code of the State of California, the City Council
adopted, on November 21, 1983, that certain Resolution No. 83 -147,
entitled, "A Resolution of the City Council of the City of Santa
Ana Declaring its Intention to Establish a Business Improvement
Area in the City of Santa Ana," and caused said resolution to be
duly published and mailed as provided by law, and
(b) That a public hearing concerning the formation of
said Business Improvement Area (hereinafter, "Area ") was held on
December 5, 1983 and continued to January 16, 1984, both, at the
hour of 7 :30 F.M. in the City Council Chambers of the City Hall
of the City of Santa Ana; and
(c) That at said hearing all written and oral protests
made or filed were duly heard, evidence for and against the pro-
posed action was received, and a full, fair and complete hearing
was granted and held, and
(d) That all protests, both written and oral, are hereby
overruled and it was determined by the Council that there was no
majority protest within the meaning of Section 36500 et seq., and
of the Streets and Highways Code; and
(e) That the public interest, convenience and necessity
require the establishment of the proposed Area; and
(f) That businesses conducting their activities within
the Area will. benefit by the expenditure of funds raised by the
charges as contemplated by said Section 36500 et af,.cL. of the Streets
and Highways Code.
25J -14
ORDINANCE NO. NS-1715
PAGE TWO
SECTION 2; ESTABLISHMENT OF AREA, Pursuant to Section 36500
et seq, of the Streets and Highway Code of the State of California,
a business improvement area to be designated as "Downtown Santa Ana
Business Improvement Area" of the City of Santa Ana," is hereby
created and 'established,
SECTION 3: DESCRIPTION OF AREA. The Area shall include all of
the real property included within the boundaries described on
"Exhibit A," attached hereto and incorporated herein by this
reference.
SECTION 4: SYSTEM OF CHARGES. That attached hereto, marked
"Exhibit B," and incorporated herein by this reference, is the
system of charges which shall be assessed upon the various classes
of business which are not exempt by law and which are located
within such Area.
(a) Payment of Charge. The charges hereby assessed shall be
due and payable and shall be paid at the same time and in the same
manner that business license taxes imposed by the City Code are
due and payable.
(b) Payment Prerequisite to License.
(l) No business .License shall be issued pursuant
to the Santa Ana Municipal Code unless the business
license charge hereby imposed is paid together with
the business license payable pursuant to the said
code; and
(2) A business license shall be considered unpaid and
penalties shall be assessed upon the total amount at
the rate specified in the Municipal Code, until such
time as both the business license' tax and the charges
imposed hereunder are paid in full.
(c) Multiple Businesses.
(1) Where one owner has multiple businesses in the
same class or combinations of two or more of the
above classes, all of which are at the same location;
the total charge for that location under this Ordinance
shall be the highest charge of any one of those busi-
nesses when considered individually according to their
classifications herein.
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ORDINANCE NO. NS -1715
PAGE TRREE
(2) Where multiple owners have,pusinesses in the same
class or combination of two or mpre,_,o£ t4z-above
classes, all of which are at the same 11i;atian, the
total charge to each owner under this Ordinance sh;alJ
be the highest charge of any one of the individual°
owner's businesses at the location when considered
according to their classification herein
(d) Charge Transferability. There shall be no additional
charge for any business whi transfers the same business to any
location within the Area.
(e) Refusal to Pa V Charge. No person shall fail or re-
fuse to pay the additional business license charge imposed.
(f) Statement of Charge Due. A written statement, on such
forms as may be required or furnished by the City Manager, shall
be filed when the charges are paid.
SECTION S: VOLUNTARY CONTRIBUTIDN. Any business which is
exempt from the payment of a business license tax by reason of
the provision of the Constitution of the United States or the
state of California, or by business class exemption as designated
in (a) above, may make voluntary contributions to said Area for
the purposes provided in this Ordinance.
SECTION 6: USE OF REVENUES, Uses of revenues derived from
charges imposed pursuant to this Ordinance shall be limited to
the following:
(a) Decoration of any public place in the Area;
(b) Promotion of public events which are to take place on
or in the Area;
(c) Furnishing of music in any public place in the Area;
and
(d) The general promotion of business activities in the
Area.
SECTION 7: FUND. There is created a special fund designated
as "Downtown Santa Ana Business Improvement Area Fund" into which
all revenues derived from charges and contributions under this
ordinance shall be placed and such funds shall be used only for
the purposes specified in this Ordinance.
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r,--
ORDINANCE N0. N5 -1715
PAGE FOUR
SECTION 8: EXPENDITURES, The City Council shall annually,,
drove a �t_tn include an estimate of expenditures to be
made froth the owtrtawanta An siness Improvement Area Fund
to carry out the purposes of this Ordinance.
SECTION 9: EFFECTIVE DATE. The charges imposed by this
Ordinance shall be due and payable immediately upon the effective
date of this ordinance upon all business license taxes levied
thirty (30) days after adoption of this Ordinance and each day
thereafter.
SECTION 10: If any action, sentence, clause or phrase of this
Ordinance is, for any reason, held by a court of competent juris-
diction to be invalid, such decision shall not affect the validity
of the remaining portions of this Ordinance. The City Council of
the City of Santa Ana hereby declares that it would have passed and
does hereby pass this section and each sentenoe, section, clause
and phrase hereof, irrespective of the fact that any one or more
sections, sentences, clauses, or phrases be declared invalid or
unconstitutional.
SECTION 11: That the City Clerk shall certify to the adoption
R. this Ordinance and cause the same to be published in the manner
prescribed by law.
ADOPTED this 6th day of Fnbr„ aX , 1984.
ATTEST" R. u 6mbcur, ar Ma Yr
nice C. Guy, Cl. rk the Council
COUNCILMEMBERS:
Luxembourger Ave
Acosta Abstain
Bricken Aye APPROVED AS T4 OR.t:
Griset Aye
Johnson Aye
McGuigan _Aye _91,114-AL
Young Aye Edward ,1 0o er, City Attorney
25J -17
I
EX,'r._ 6 I T 'A11
LEGAL LESCRIF 100 - X'WN - -)EN B':S!NtSS !XPRC. Eh'ch? A. -EA
That portion of the City of Santa Ana, County of Orange,
State of California, bounded and described as follows:
Beginning at the centerline intersection of Parton Street,
60 feet wide, and Santa Ana Boule ,_j d' 108 feet wide, thence
nor£ }Feasterly and easterly along eaid centerline of Santa Ana
nou evard to the centerlire of Broadway, 82 feet wide; thence
northerly al6rq said "c'E'htecl'ine "df'2readway 672,1eet, mare or
261—s, to the intersection of the prolongation of the north line
of Blocks C, D, and E of SpurgeW s Addition to Santa Ana as
per map recorded in Sack. 1, page 56 of Miscellaneous Maps,
records of said County; thence easterly along said prolongation
and said north line of Blocks t,p_ D,'a -id E to the centerline of
Main Street, 90 feet wide;,thence southerly along said center-
line of Main Street to the ce` UH11ne of Eighth Street, 60 feet
wide; thence easterly along said d'Eiiterline of Eighth Street to
the ca_p,t.erline of Bush, 60 feet wide; thence southerly along
said ccnterlin'e`°of "rush to the centerline a£ _6Wj1E. &-An7 Boule-
vard, 60 feet wide; th�Pce easterii' along lsst said centerline
of Santa Ana Boulevard to tlie're"Rerline of Spurgeon Street, 60
feet wide; thence southerly along said' centerline of Spurgeon
Street 155 feet, t:encF easterly 30 feet. to the northwest corner
of Lot 1 in Block 2 of the4be`ui't A6dition to Santa Ana as per
map recorded in Book 9, page 91 of Miscellaneous Maps, records
of Los Angeles County, California; thence easterly along the
north line of last said Lot 1 and tF,e 'easterly prolongation
thereof 410 feet to the northeast corner of Lot 2 -in Block 3 of
said Fruit Til_bn, thence SOHHrly'afong the east line of
last said Lot 2 and the soutr`pralanaation thereof to the
centerline of Fifth Street, 60 feet wide; thence easterly along
Said ceriterltne o Fifth Street to the cent�en OT2"of"Mbrtimer
Street, 60 feet widep thence southeiTyalong said centerline of
Mortimer Street to the centerline of Fourth street, $0 feet
wide; thence westerly along sai`cerEerline of Fourth Street to
the prolongation of the east-line of Block 4 of Blee's Addition
as shown on a map recorded in Book 4, page 545 of Miscellaneous
Maps, records of Los Angeles County, California; thence southerly
along last said east line and the prolongations thereof to the
northeast corner of Lot 6 in Block 5 of said Blee's Addition,
being also a point on the south, line of Third Street, 60 feet
wide; thence easterly along last said south line 14 feet; thence
- southerly along e line.parall.el and distant 14 feet easterly;
measured at right anglesiom khe east line'uf last sari Lot 6
to a point on the easterly prolongation of the south line of
said Lot 6; thence westerly 14 feet to the northeast corner of
r Lot 5 in Block 5 of said Blee's Addition; thence southerly
along the east line of said Lot 5 in Block 5 and the southerly
prolongation thereof to the northeast corner of Block 6 of said
25J -18
(-`
Elee's Fdditior.; t',ance southerly along the east line of
said Elock 6 and the southerly prolongation thereof to the
centerline of First Street, 100 feet wide; thence westerly
along said centerline of First Street to the northerly prolon-
gation of the east line of Lots 1 and 2 of slee's Subdivision
as shown or, a map recorded in Book 1, page 67 of FiieCellahe O,us
Maps, records of said Orange County; thence southerly along
last said prolongation to the southeast corner of last said Lot
2; thence westerly along the south line of last said Lot 2 and
the westerly prolongation thereof to the northwest corner of
Lot 10 in Block B of Blee's Second Addition as shown on a map
recorded in book 30, page 75 of Miscellaneous Maps of Loa An_eles
County, California; thence 'southerly along the west line of
last said .Lot 10 to the southwest corner thereof; thence westerly
along a line parallel and distant 150 southerly from the south
line of First Street, 100 feet wide, to the centerline of train
Street, 75 feet wide, thence northerly along said centerline of
Main'LLFtreet 25 feet; thence westerly along a line parallel znd
distant 125 feet southerly f2om —sai-d south line of First Street
to the centerline of Broadway, 82 feet wide; thence northerly
along sai-a cenfer 'l'i Tie "of'Brcwdway 25 feet; then ce "westieirly
r along a line parallel and distant 100 feet southerly from said
south line of First Street to the northwest corner of Lot 3 in
Block k of Heninger's Res ubdivision ^aj- 9h6-wn on a map filed in
Book 5, page 49 of Miscellaneous Maps, records of said Orange
County; thence southerly along the west line of said Lot 3 to
the southwest corner of said Lot 3; thence westerly along a
line parallel and distant 150 feet southerly from, said south
line of First Street to the centerline of Parton Street, 60
feet wide; thence northerly along said centerline of Parton to
the Centerline of First Street, 100 feet wide; thence westerly
to the intersec£ ion n4 kfe southerly prolongation of the west
line of Lot l in Tract No. 10680 as shown on a map recorded' in
Book 40, pages 33 and 34 of kiscellaneeos Naps, records of
said orange County; thence northerly along last said west line
and the prolongations thereof to the centerline of Third Street,
60 feet tide; thence easterly along said centerline of Third
Street to the centerline of Parton Street, thence northerly
along said centerline of Parton Street to the POINT OF BEGINEING
25J -19
(-•
EXHIBIT "B"
ANNUAL CHARGES TO BUSINESSES LOCATED IN THE
DWNTOKN BUSINESS IMPROVEMENT AREA
1. Businesses located within the boundaries of the proposed
Business Improvement District, classified under City
ordinance NS -1690 as:
Amusement Services
Pawnbrokers
Service Stations
Classification A, including but not limited to,
Retail Sale 'of Goods
Hotels and Motels
Theatres
Food Establishments,
shall pay an amount equal to one and one half (1.5)
times their annual business license fee.
l� 2. Businesses classified under ordinance NS -1690 as Commercial
Rental Property, Rental Property, Residential and Reaming
House shall pay an amount equal to one quarter (.25)
times their annual business license fee.
3. All other businesses, including Professions, Trades &
Shrviclas, within the boundaries of the proposed Business
Improvement District, shall pay one (1) times their
annual business license fee.
25J -20
EXHIBIT 2
AMENDED AND RESTATED OPERATING AGREEMENT
This AMENDED AND RESTATED OPERATING AGREEMENT made and entered into
on , by and between the City of Santa Ana, a charter city and
municipal corporation duly organized and existing under the Constitution and laws of the State of
California, hereinafter referred to as "City," and Santa Ana Business Council Inc., a California non-
profit corporation, hereinafter referred to as "SABC."
RECITALS
A. Whereas the City Council of the CITY previously established a community management
district (hereinafter the "CMD ") designated as the "Downtown Community Management
District" (hereinafter the "DISTRICT "); and
B. Whereas assessments were supposed to be levied annually against the assessable parcels in
the DISTRICT commencing with Fiscal Year 2009 -2010 and continuing through Fiscal
Year 2013 -2014; and
C. Whereas the CITY was to use the assessments to contract for the administration of a
program of improvements and activities in connection with the DISTRICT for Fiscal Years
2009 -2010 through 2013 -2014; and
D. Whereas due to various reasons the City Council on February 4, 2012 repealed the entirety
of the CMD and did not levy the DISTRICT assessment to fund the CMD services for
calendar year 2013; and
E. Whereas with the repeal of the CMD, several downtown merchants and property owners
have expressed an interest in reactivating the Downtown Santa Ana Business Improvement
Area (BID) so that they could continue to receive funding to promote the safety,
maintenance, and overall economic stability of the downtown area; and
F. Whereas the City Council agreed that if there was sufficient support by those businesses
that would be impacted by assessments, that it would reactivate the prior Downtown
Business Improvement Area which was established on February 6, 1984 pursuant to
Ordinance NS -1715 (attached hereto and incorporated herein as Exhibit A) ; and
G. Whereas the City Council further agreed in a Settlement and Release Agreement with
Downtown Inc. ( "DTP'), that, should the BID be reactivated, DTI would receive 50% of the
BID revenues in any given calendar year and remaining 50% would be distributed to a new
merchants' nonprofit group serving independently of DTI, subject to an operating
agreement for each group; and
1
25J -21
H. Whereas the Santa Ana Business Council has emerged as the new merchants' nonprofit
group that has expressed an interest in obtaining the other 50% of BID funds to be spent in
furtherance of the overall economic stability of the downtown area consistent with the
requirements of NS -1715; and
I. Whereas the City Council has "reactivated" the BID by its approval of an assessment report
for calendar year 2013 outlining the proposed budget and activities to be conducted in the
downtown area; and
J. Whereas a public hearing was held, and there being no majority protest against the approval
of the assessment report and levy of the assessment; and
K. Whereas the City and SABC under this Operating Agreement propose to (1) confirm that
SABC will receive 50% of the assessments collected each calendar year for which an
assessment is levied, (2) to provide that SABC's use of the assessment funds will be
consistent with the requirements of NS -1715, generally, and the approved calendar year's
assessment report specifically, (3) to provide for auditing of SABC BID Funds, and (4)
ensure that SABC meetings are compliant with the Ralph M. Brown Act [Government
Code Sections 54950, et seq].
WHEREFORE, and in consideration of their mutual and respective covenants and promises
hereinafter set forth, the original agreement dated September 17, 2013 is hereby Amended and
Restated and the parties hereto do hereby agree as follows:
ARTICLE 1
PRELIMINARY MATTERS
§ 1.01 Definitions
As used in this Agreement, the following terms shall have the following meanings:
(a) "City" means the City of Santa Ana, California.
(b) "City Council" means the City Council of the City.
(c) "City Manager" means the City Manager of the City or his/her designated
representative.
(d) "SABC" means Santa Ana Business Council, Inc., a California nonprofit
corporation.
(e) "Board" means the Board of SABC.
(1) "Term" means three (3) years commencing on September 17, 2013 and
2
25J -22
terminating on September 16, 2016 unless terminated sooner due to any violations
of the provisions of this Agreement or if a BID assessment is not approved in
compliance with the Parking and Business Improvement Area Law of 1989
[Streets and Highways Code Sections 36500, et seq.]. The Term of this
Agreement shall be automatically renewed in one (1) year Renewal Terms unless
either party gives notice of termination at least two (2) months prior to the
expiration of the Initial Term or any Renewal Term.
§ 1.02 Status of SABC
(a) By its execution of this Agreement, SABC warrants that it is duly incorporated under the
laws of the State of California and that true and correct copies of its Articles of Incorporation and
Bylaws and a true and correct listing of SABC's officers and their terms of office, certified as such
by SABC's Secretary, have been filed with the Clerk of the Council.
(b) By its execution of this Agreement, City accepts and agrees to the organization of the
SABC as set forth in the above said Articles of Incorporation and Bylaws.
§ 1.03 Compensation of SABC Board Members and Meetings
(a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of
the SABC Board. When conducting meetings related to the Downtown Santa Ana Business
Improvement Area, members of the Board shall serve without compensation other than
reimbursement for expenses incurred by them in the course of the performance of services for
SABC when authorized by the SABC Board.
(b) SABC shall conduct its meetings in accordance with the Ralph M. Brown Act; the
number of board members for purposes of the Brown Act shall consist of 12 board members, with 7
board members serving as a quorum.
§ 1.04 Changes in Officers, Articles and Bylaws
SABC shall notify the Clerk of the Council of any change in the membership of the Board
and any change in the officers of SABC. Any amendment of SABC's Articles or Bylaws shall be
filed with the Clerk of the Council.
§1.05 City Representation at Meetings of SABC
The City Manager shall be entitled to attend all meetings of SABC related to the BID and to
participate in the discussions of the Board to the same extent as the members of the Board, and
SABC shall assure that the City Manager is provided with reasonable advance notice of all
meetings of SABC. Nothing herein shall be construed to provide the City Manager with any
authority to make, second, or vote on motions, or to cause him to be counted for purposes of
25J -23
determining whether a quorum exists at meetings of SABC.
§1.06 City Residents, BID Property Owners, and Business Operators on the Board
A majority of the Board shall be City residents, BID property owners, or business operators.
If the number of members who are City residents, BID property owners, or business operators
becomes less than a majority due to the death, resignation, or change of residence or business
location, SABC shall not be in default under this section, provided, however, that the next member
appointed to the Board shall be a City resident, BID property owner, or business operator.
ARTICLE 2
REPORTS AND RECORDS
AND BID FUND TRANSFERS
§ 2.01 Annual Budget and Program Report
(a) No later than November First (1st) of each year (beginning November 1, 2013), SABC
shall provide the City Manager with a copy of a detailed calendar year operating budget showing
expected sources of revenue and the nature of all expected or proposed expenditures for the
forthcoming calendar year and a report on the proposed programs to be undertaken by SABC in
said calendar year.
(b) The proposed budget shall be submitted to the City Council for approval subject to
the procedures provided for in California Streets and Highway Code Section 36530 et seq. If the
proposed budget is accepted by the City Manager, it shall be submitted to the City Council for
approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City
Manager and SABC shall meet in good faith in an attempt to reach agreement on a budget. If
they are unable to do so, the City Manager shall submit the SABC's proposed budget to the City
Council for approval, in whole or in part.
(c) SABC acknowledges that its proposed budget in any given calendar year will consist
of 50% of all BID assessments collected from businesses subject to the Downtown Santa Ana
Business Improvement Area as reflected in Ordinance NS -1715.
(d) SABC further acknowledges that the use of all BID proceeds will be subject to the
BID laws as currently exist and /or as may be modified in the future; and that expenditures of BID
funds will be for the purposes identified in Ordinance NS -1715.
(e) The City shall establish and maintain in its accounting system a trust fund for the
deposit of BID assessment monies collected together with a specific account which shall reflect
the deposit and expenditure reimbursement of BID assessment monies apportioned for use by
SABC pursuant to subsection (c) above.
rd
25J -24
(f) SABC shall have the option for the first year of this Agreement to request an advance
of up to twenty thousand dollars ($20,000.00) from the City upon presentment of written
documentation indicating anticipated expenses in furtherance of the purposes identified in
Ordinance NS -1715. Such written documentation shall be approved by the Executive Director of
Community Development Agency or his or her designee. Any such advance shall be deducted
from BID assessment monies collected and deposited. SABC agrees that such advance shall only
apply to the first the $20,000.00 of available funds and before any subsequent reimbursements
can be made, SABC shall sufficiently document such advance by accompanying receipts,
purchase invoices, or other permanent evidences of expenditure as may be prudently required by
the City in accordance with Generally Accepted Accounting Principles and established City
accounting procedures.
(g) The City shall all the SABC to establish a "revolving fund" account in the amount of
$20,000 in order to finance the organizations day to day operations. This revolving fund account
shall be subject to the constraints of NS -1715 and may be replenished upon presentment of
documentation that the funds in the account have been properly expended.
(h) The City shall make all reasonable good -faith efforts to deposit BID assessment
monies collected each month by the 15'11 day of the month following; provided that where the 15th
day falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall
be made the next day City Hall is open.
(i) The City shall also deposit monthly an interest payment equivalent to the average
amount of the daily balances for the period of the preceding month.
0) The City upon depositing BID assessment monies shall notify SABC by electronic
mail of the net amount of monies available for reimbursement to SABC. Failure by SABC to
receive or acknowledge electronic mail notification shall not constitute a breach of this
Agreement.
(k) The City upon receipt of a written request for reimbursement submitted by SABC for
documented expenses, shall inspect and examine each request to ensure that all expenses submitted
for reimbursement are for the purposes identified in Ordinance NS -1715 and that all expenses
submitted are sufficiently documented by accompanying receipts, purchase invoices, or other
permanent evidences of expenditure as may be prudently required by the City in accordance with
Generally Accepted Accounting Principles and established City accounting procedures.
Reimbursement requests shall be approved by the Executive Director of the Community
Development Agency or his or her designee.
(1) The amount of any approved reimbursement made by the City shall not exceed the net
funds available for such reimbursement. In the event that a reimbursement request submitted by
SABC exceeds the balance of available funds, the City shall prorate the reimbursement accordingly.
6
25J -25
(m)The City shall make all reasonable good -faith efforts to process reimbursement
requests within 15 working days and to issue a reimbursement check for the approved amount or
make equivalent electronic payment to SABC.
(n) In the event questions arise relating to the balance of funds available to SABC,
SABC may within 15 days of notification request an accounting by the City of the amount of net
funds available for reimbursement to SABC.
(o) In the event questions arise relating to the amount of any specific reimbursement to
SABC approved by the City, SABC may, within 15 days of such reimbursement payment,
request that the City re- evaluate the amount of such reimbursement. Thereupon the City shall re-
evaluate the amount of such reimbursement and give written notification of its decision to SABC
which shall be final and conclusive.
§ 2.02 Annual Financial Statement and Audit
Within sixty (60) days following notice by the City, SABC shall submit to the City Manager
a complete statement of SABC's revenues and expenditures and a financial audit for the preceding
calendar year prepared by an independent certified public accountant.
§ 2.03 Financial Records
SABC shall keep, or cause to be kept, true, accurate and complete records, including
double -entry books, a profit and loss statement, and a balance sheet, such that if possible at all times
to determine the amount and nature of all revenues and expenditures. All expenditures and
transactions shall be supported by documents of original entry such as sales slips, cash register
tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and
supporting documents shall be retained by SABC for a period of three (3) years after the end of the
accounting year to which they pertain.
§ 2.04 Accounting Procedures
SABC shall maintain a system of accounting according to Generally Accepted Accounting
Practices.
§ 2.05 Inspection and Audit
City shall be entitled, during the term of this Agreement and for a period of one year
following the termination, to:
(a) inspect and examine all of SABC's books, statements, records, and supporting
documents to ascertain the correctness of SABC's financial statements. Any such inspection and/or
examination shall be conducted during normal business hours with prior 15 days written notice to
25J -26
SABC; and
(b) inspect and examine each request for reimbursement received from SABC to ascertain
that all expenses submitted for reimbursement are for the purposes identified in Ordinance NS-
1715 and that all expenses submitted are sufficiently documented by receipts, purchase invoices,
or other permanent evidences of expenditure in accordance with Generally Accepted Accounting
Principles and established City accounting procedures. Any such inspection and/or examination
shall be conducted during normal business hours with prior 15 days written notice to SABC.
ARTICLE 3
INDEMNITY AND INSURANCE
§ 3.01 Indemnification
SABC shall indemnify and save harmless City and its officers, agents and employees from
and against any and all claims, demands, loss or liability of any kind or nature which City or its
officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of
them, as a result of, arising out of, or in any manner connected with SABC's management and/or
administration of the BID funds.
§ 3.02 Insurance Requirement Generally
Prior to the Commencement Date (except as hereinafter otherwise provided), SABC shall
obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Term,
policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of
such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of
Workers' Compensation Insurance) shall name City as an insured or additional insured and each
liability insurance policy shall also name the officers, agents and employees of City as insureds or
additional insureds. Each such policy shall also contain a provision that no termination,
cancellation or change of coverage or (where applicable) of insured or additional insured shall be
effective until after thirty (30) days notice thereof has been given in writing to City.
§ 3.03 Liability Insurance
SABC shall provide a policy or policies of insurance which provides coverage not less than
that provided in the form of a comprehensive general liability insurance policy against liability for
any and all claims and suits for damages or injuries to persons or property resulting from or arising
out of the operations of SABC, its officers, employees, agents or assigns. Said policy or policies of
insurance shall provide coverage for both bodily injury and property damage in not less than One
Million Dollars ($1,000,000.00) combined single limit, or its equivalent.
7
25J -27
§ 3.04 FidelityBondin�
SABC shall provide a policy or policies of insurance insuring SABC against loss due to
dishonesty of SABC's officers, agents and employees. Said policy or policies shall provide
coverage in not less than $500,000.
§ 3.05 Workers' Compensation Insurance
SABC shall provide a policy or policies of workers' compensation insurance as required by
law.
§ 3.06 Modification of Insurance Requirements
The City Manager may modify or suspend the requirements imposed on SABC by this
Article if in his reasonable determination; strict compliance is impossible or excessively costly due
to insurance market conditions.
ARTICLE 4
DEFAULTS, REMEDIES AND TERMINATION
§ 4.01 Defaults
(a) Failure or delay by either party to perform any term or provision of this Agreement shall
constitute a default under this Agreement. The injured party shall not initiate the remedies
hereinafter provided until the defaulting party has been given written notice of the default,
specifying the nature thereof, and a period of sixty (60) days to cure or correct such default.
(b) Any failure or delay by either party in asserting any of its rights or remedies as to any
default shall not operate as a waiver of any default or of any such rights or remedies, or deprive
such party of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
§ 4.02 Remedies of City
In the event of any default and failure to cure, correct or remedy the same by SABC, City
may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the
following remedies:
(a) Delay of any or all transfers of BID funds to SABC collected pursuant to § 2.01 of
this Agreement until such default is cured, corrected or remedied; provided such delay is approved
by the City Council.
(b) Terminate this Agreement, provided such termination is approved by the City
25J -28
Council.
§ 4.03 Legal Actions
hi addition to any other rights or remedies, either party may institute legal action to cure,
correct or remedy any default, to recover damages for any default, or to obtain any other remedy
consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior
Court of the County of Orange, State of California, or in any other appropriate court in that county.
§ 4.04 Cumulative Rights and Remedies
The rights and remedies of the parties are cumulative and the exercise by either party of one
or more such rights or remedies shall not preclude the exercise by it, at the same or different times,
of any other rights or remedies for the same default or any other default by the other party.
§ 4.05 Termination
Upon the expiration of the Term or upon the earlier termination of this Agreement as
provided in Section 1.01(f) or Section 4.02 the City shall have no further obligation to provide
funding or other assistance to SABC pursuant to this Agreement for any period following such
expiration or early termination.
ARTICLE 5
GENERAL PROVISIONS
§ 5.01 Representatives
(a) All actions authorized to be taken by City pursuant to this Agreement, without
specification in this Agreement as to the body or office so authorized, shall be deemed exercisable
on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate
any officer of the City as his or her representative with respect to any specified authority given to
the City Manager by this Agreement, and in such event the actions of such officer within the scope
of such authority shall have the same effect as if taken by the City Manager.
(b) All actions authorized to be taken by SABC pursuant to this Agreement, without
specification in this Agreement as to the body or office so authorized, shall be deemed exercisable
on behalf of SABC by SABC's governing board or by such officer of SABC as may be designated
by resolution of said governing board.
§ 5.02 Notices
Notices and written communications sent by one party to the other shall be either personally
delivered or sent by U. S. Mail, postage prepaid, to the following addresses:
25J -29
(a) If sent by SABC to City:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
With Copies to:
City Manager
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
And:
City Attorney
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
(b) If sent by City to SABC:
Santa Ana Business Council Inc.
400 E. Fourth Street
Santa Ana, CA 92701
Attention: Chairman of the Board
§ 5.03 Non - assignability
The rights and obligations of SABC under this Agreement may not be assigned or
delegated without the prior approval of the City Council.
§ 5.04 Partial Invalidity
If any term, covenant, condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions
hereof shall remain in full force and effect, and shall in no way be affected, impaired or
invalidated thereby.
10
25J -30
§5.05 Exclusivitv
Each party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other agreement or amendment
hereto shall be effective unless executed in writing and signed by both City and SABC.
§5.06 Conflict of Interest Clause
SABC covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Jose Sandoval
Chief Assistant City Attorney
CITY OF SANTA ANA:
David Cavazos
City Manager
Santa Ana Business Council, Inc.:
Lo
Title:
11
25J -31
L,
REL :adg
EXHIBIT A 11/22/83
Rev. 12/28/83
ORDINANCE NO, NS -1715
AN ORDINANCE OF THE CITY OF SANTA ANA
ESTABLISHING A BUSINESS IMPROVEMENT AREA
IN THE CITY OF SANTA ANA
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1: That the City Council of the City of Santa Ana
hereby finds, determines and declares as follows:
(a) That pursuant to Section 36500 et sue, of the Streets
and Highways Code of the State of California, the City Council
adopted, on November 21, 1983, that certain Resolution No. 83 -147,
entitled, "A Resolution of the City Council of the City of Santa
Ana Declaring its Intention to Establish a Business Improvement
Area in the City of Santa Ana," and caused said resolution to be
duly published and mailed as provided by law; and
(b) That a public hearing concerning the formation of
said Business Improvement Area (hereinafter "Area ") was held on
December 51 1983 and continued to January 16, 1984, both, at the
hour of 7 :30 P.M. in the City Council Chambers of the City Hall
of the City of Santa Ana; and
(c) That at said hearing all written and oral protests
made or filed were duly heard, evidence for and against the pro-
posed action was received, and a full, fair and complete hearing
was granted and held; and
(d) That all.protests, both written and oral, are hereby
overruled and it was determined by the Council that there was no
majority protest within the meaning of Section 36500 et seq., and
of the Streets and Highways Code; and
(e) That the public interest, convenience and necessity
require the establishment of the proposed Area; and
(f) That businesses conducting their activities within
the Area will benefit by the expenditure of funds raised by the
charges as contemplated by said Section 36500 et seq. of the Streets
and Highways Code.
25J -32
ORDINANCE NO. NS -1115
PAGE TWO
SECTION 2: ESTABLISHMENT OP AREA, Pursuant to Section 36500
et seq, of the Streets and Highway Code of the State of California,
a business improvement area to be designated as "Downtown Santa Ana
Business Improvement Area" of the City of Santa Ana," is hereby
created and 'established,
SECTION 3: DESCRIPTION OF AREA. The Area shall include all of
the real property included within the boundaries described on
"Exhibit A," attached hereto and incorporated herein by this
reference.
SECTION 4: SYSTEM OF CHARGES. That attached hereto, marked
"Exhibit B," and incorporated herein by this reference, is-the
system of charges which shall be assessed upon the various classes
of business which are not exempt by law and which are located
within such Area.
(a) Payment of Charge. The charges hereby assessed shall be
due and payable and shall be paid at the same time and in the same
manner that business license taxes imposed by the City Code are
due and payable.
(b) Payment Prerequisite to License
(1) No business license shall be issued pursuant
to the Santa Ana Municipal Code unless the business
license charge hereby imposed is paid together with
the business license payable pursuant to the said
code; and
(2) A business license shall be considered unpaid and
penalties shall be assessed upon the total amount at
the rate specified in the Municipal Code, until such
time as both the business license tax and the charges
imposed hereunder are paid in full.
(c) Multiple Businesses.
(1) where one owner has multiple businesses in the
same class or combinations of two or more of the
above classes, all of which are at the same location;
the total charge for that location under this Ordinance
shall be the highest charge of any one of those busi-
nesses when considered individually according to their
classifications herein.
25J -33
ORDINANCE NO. NS -1715
PAGE THREE
(2) Where multiple owners have,.businesses in the same
class or combination of two or more,_,of tlte._above
classes, all of which are at the same I-e;ation; the .
total charge to each owner under this Ordinano'8 sh,al�
be the highest charge of any one of the individual;''
owner's businesses at the location when considered
according to their classification herein
(d) Charge Transferabiiity. There shall be no additional
charge for any business which transfers the same business to any
location within the Area.
(e) Refusal to Pay Charge. No person shall fail or re-
fuse to pay the additianaI business license charge imposed.
(f) Statement of Charge Due. A written statement, on such
forms as may be required or furnished by the City Manager, shall
be filed when the charges are paid.
SECTION S: VOLUNTARY CONTRIBUTION. Any business which is
exempt From the payment of a business license tax by reason of
the provision of the Constitution of the United States or the
State of California, or by business class exemption as designated
in (a) above, may make voluntary contributions to said Area for
the purposes provided in this Ordinance.
SECTION 6: USE OF REVENUES, uses of revenues derived from
charges imposed pursuant to this Ordinance shall be limited to
the following:
(a) Decoration of any public place in the Area;
(b) Promotion of public events which are to take place on
or in the Area;
(c) Furnishing of music in any public place in the Area;
and
(d) The general promotion of business activities in the
Area.
SECTION is
as "Downtown
all revenues
Ordinance sh
the purposes
FUND. There is created a special fund designated
Santa Ana Business Improvement Area Fund" into which
derived from charges and contributions under this
all be placed and such funds shall be, used only for
specified in this Ordinance.
25J -34
ORbINANCE No. NS -1715
PAGE FOUR
SECTION 8: EXPENDI'T'URES. The City Council shall annually.
approve a 4 {± trr' include an estimate of expenditures to be
made froth the `D'owrr.LawerSank Ana Business Improvement Area Fund
to carry out the purposes of this ordinance.
SECTION 9: EFFECTIVE DATE. The charges imposed by this
ordinance shall be due and payable immediately upon the effective
date of this ordinance upon all business license taxes levied
thirty (30) days after adoption of this ordinance and each day
thereafter.
SECTION 16: If any action, sentence, clause or phrase of this
or inanoe :.s, for any reason, held by a court of competent juris-
diction to be invalid, such decision shall not affect the validity
of the remaining portions of this Ordinance. The City Council of
the City of Santa Ana hereby declares that it would have passed and
does hereby pass this section and each sentence, section, clause
and phrase hereof, irrespective of the fact that any one or more
sections, sentences, clauses, or phrases be declared invalid or
unconstitutional.
SECTION 11: That the City Clerk shall certify to the adoption
of this ordinance and cause the same to be published in the manner
prescribed by law.
ADOPTED this 6th day of FPhrualy_ ' , 1984.
b f
ATTEST" R.W. embou
If�rger, Ma
nice C. Guy, C1 rk the Council
COUNCILMEMBERS:
Luxembourger Ave
Acosta Abstain
Bricken Aye- APPROVED AS W FORM:
Griset Aye
Johnson Aye
McGuigan Aye
Young _ Edward T oo or, City Attorney
25J -35
I
EX'a: SIT �A`
-LEGAL DESCAIP710N lX7RC. EXE',T 7.F.E1
That portion of the City of Santa Ana, County of Crange,
State of California, bounded and described as follows:
Beginning at the centerline intersection of Parton Street,
60 feet wide, and Santa Ara boulevTed;`1'OB Meet wide; thence
y" 'and easterly along se id centerline of Santa Are
ouuievardoc the centerline of Broadway, 82 feet wide; thence
northerly alairg said cE'htecl'ine "oi Ereadway 672 feet, more or
lest, to the intersection of the prolongation of the north line
of Blocks C, D, and E of Spurgeon's Addition to Santa Ana as
per map recorded in Book 1, page 56 of Miscellaneous Naps,
records of said County; thence easterly along said prolongation
and said north line of Block`s t D,'arld E to the centerline of
Ma.tn Stcee,t, 90 feet wide;.thence southerly along said center-
line of Hain Street to the cHIVt line of Eighth Street, 60 feet
wide; thence easterly along said b'enterline of Eighth Street to
the U,01- arline of Bush, 60 feet wide; thence southerly along
said centerline of Bush to the centerline of -Mnfa -Ana Boule-
vard, 60 feet wide; thsnce easterly along last said centerline
of Santa Ana Boulevard to'Ehe centerline of Spurgeon Street, 60
feet wide; thence southerly along e'aid' centerline of Spurgeon
Street 155 feet; thence easterly 30 feet-to the northwest corner
pf I.,at 1 In Block 2 of the kui't_A6diticn to Santa Ana as per
map recorded in Book 9, page 91 of Miscellaneous Maps, records
of Los Angeles County, California; thence easterly along the
north line of last said LOt l and the easterly prolongation
thereof 410 feet to the northeast corner of Lot 2 in Block 3 of
said Fruit A�eiition; thence southerly along the east line of
last said Lot 2 and the s- cHFe�FT prolongation thereof to the
centerline of Fifth Street, 60 feet wide; thence easterly along
_, _ __
Eaic3 "centerIi'ne _—of Fifth Street to the cent�tl'ils'e"of"FSCirtimer
Street, 6D feet widep thence southerly "along'siid centerline of
Mortimer Street to the centerline of Fourth Street, 80 feet
wide; thence westerly a'l6ng said centerline of Fourth Street to
the prolongation of the east-line of Block, 4 of &lee's Addition
as shown on a map recorded in Book 4, page 545 of Miscellaneous
Maps, records of Las Angeles County, California; thence southerly
along last said east line and the prolongations thereof to the
northeast corner of Lot 6 in Block 5 of said Blee's Addition,
being also a point on the south line of Third Street, 60 feet
wide; thence easterly along last said south line 14 feet; thence
southerly along a line.parallel and distant 14 feet easterly;
measured at right anglesiom' the east 'line iast sair7 -Lot -6
to a point on the easterly prolongation of the south line of
said Lot 6; thence westerly 14 feet to the northeast corner of
Lot 5 in Block 5 of said Blee's Addition; thence southerly
along the east line of said Lot 5 in Block 5 and the southerly
prolongation thereof to the northeast corner of Block 6 of said
25J -36
r,
Else's A6dttior.; thence southerly along the east line of
said `clock 6 and the southerly prolongation therecf to the
centerline of First Street, 100 feet wide; thence westerly
along said centerline of first Street to the northerly prolon-
gation of the east line of Lots I and 2 of glee's Subdivision
as shown on a map recorded in Bock 1, page 67 of Miscellaneous
Maps, records of said Orange County; thence southerly along
last said prolongation to the southeast corner of last said Lot
2; thence westerly along the south line of last said Lot 2 and
the westerly prolongation thereof to the northwest corner of
Lot 10 in Block B of Blee's Second Addition as shown on a map
recorded in Book. 30, page 75 of Miscellaneous Maps of Los Angeles
County, California; thence 'southerly along the west line of
last Said Lot 10 to the southwest corner thereof; thence westerly
along a line parallel and distant 150 southerly from the south
line of First street, 100 feet wide, to the centerline of Main
Street, 75 feet wide, thence northerly along said centerline of
Main' Street. 25 feet; thence westerly along a line parallel and
distant 125 feet southerly from -said south line of First Street
to the centerline of Broadway, 82 feet wide; thence northerly
along said cenfe- ni rye "of °'Broadway 25 feet; thence `westerly
along a line parallel and distant 100 feet southerly from said
south line of First Street -to the northwest corner of Lot 3 in
Block 4 of Heninger's Resubdivision es shown on a map filed in
Book. 5, page 49 of Miscellaneous Maps, records of said orange
County; tkenu_ southerly along the west line of said Lot 3 to
the southwest corner of said Lot 3; thence westerly along a
line parallel, and distant 150 feet southerly from said south
line of First Street to the centerline of Parton Street, 60
feet wide; thence northerly along said centerline of Parton to
the Fen,terline of First Street, 100 feet wide; thence westerly
to the intersec`Eion rf lie southerly prolongation of the west
line of Lot I in Tract No. 10690 as shown on a map recorded'in
Book 467, pages 33 and 34 of Misceilaneg 5'Maps, records of
said orange County; thence northerly along last said west line
and the prolongations thereof to the centerline of Third Street,
60 feet lode; thence easterly along said centerline of Third
Street to the centerline of Parton Street, thence northerly
along said centerline of Parton Street to the POINT OF BEGINFING,
25J -37
(-1
EXHIBIT "B"
ANNUAL CHARGES TO BUSINESSES LOCATED IN THE
DOKNTOWN BUSINESS IMPROVEMENT AREA
1. Businesses located within the boundaries of the proposed
Business Improvement District, classified under City
Ordinance NS -1690 as:
Amusement Services
Pawnbrokers
Service stations
Classification A, including but not limited tO,
Retail Sale 'of Goods
Hotels and Motels
Theatres
Food Establishments,
shall pay an amount equal to one and one half (1.5)
times their annual business license fee,
f� 2. Businesses classified under Ordinance NS-16'90 as Commercial
Rental Property, Rental Property, Residential and Rooming
House shall pay an amount equal to one quarter (,25)
times their annual business license fee,
1, All other businesses, including Professions, Trades &
5ervicps, within the boundaries of the proposed Business
Improvement District, shall pay one (1) times their
annual business license fee.
25J -38