Loading...
HomeMy WebLinkAbout25A - AGMT - MOU - THE ELKS PROPERTYREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 2, 2014 TITLE: MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SANTA ANA AND THE ELKS BUILDING ASSOCIATION OF SANTA ANA !!J1 i "",Y CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: •c• t ❑ As Recommended ❑ As Amended ❑ Ordinance on 1$' Reading ❑ Ordinance on 2" 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 Memorandum of Understanding (MOU) with the Elks Building Association of Santa Ana to establish a process to consider a potential joint use of a portion of the Santa Ana Zoo and the Elks property located at Elks Lane and First Street, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Through this MOU the City and the Elks will explore joint development options for a portion of the Santa Ana Zoo and the property owned by the Elks located on the west side of Elks Lane. This MOU does not establish any development standards, nor does it bind either party to any particular development scenario. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal No. 3 Economic Development, Objective No. 5A {identify and market underutilized properties {city and non -city owned) for new development that will create new jobs and expand the City's tax base {e.g. YMCA, 3rd and Broadway parking structure, Saddleback Inn site)). FISCAL IMPACT There is no fiscal impact associated with this action. 64A4,L L6A� Karen Haluza IV Interim Executive Director Planning and Building Agency KH:rb rb \MOU Elks Bldg Assoc of SA 9.2 -14 Exhibit 1: Memorandum of Understanding 25A -1 25A -2 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SANTA ANA AND THE ELKS BUILDING ASSOCIATION OF SANTA ANA FOR THE POTENTIAL DEVELOPMENT AND JOINT USE OF A PORTION OF THE SANTA ANA ZOO AND THE ELKS PROPERTY LOCATED AT ELKS LANE AND FIRST STREET, SANTA ANA This Memorandum of Understanding ( "MOU ") is made this 2nd day of September, 2014, by and between the City of Santa Ana, California, a municipal corporation organized as a charter city ( "CITY "), and the Elks Building Association of Santa Ana, a California corporation ( "ELKS "), for the negotiation of the potential development and joint use of a portion of property at the Santa Ana Zoo ( "ZOO ") and the ELKS property located at Elks Lane and First Street, Santa Ana, known by the street address of 1660 East First Street and designated as Assessor's Parcel Number 402 - 222 -01. CITY and ELKS are sometimes individually referred to herein as a "Party" and collectively as the "Parties." TERMS 1. Purpose. The CITY and the ELKS wish to jointly explore and negotiate the terms of a potential joint use project wherein the Parties would jointly develop a site plan that would explore options for the re -use of the ELKS property for private development along with mutually beneficial development at the ZOO. Such a project could include the constriction of a new public parking structure, multi -use facility, commercial, institutional and residential development. ( "Project "). 2. Effective Date. This MOU shall become effective on the date ( "Effective Date ") when this MOU has been executed by the authorized representatives of the CITY and ELKS. The term of this MOU shall commence on the Effective Date and shall continue thereafter for a period of 120 days ( "Negotiation Period "), unless sooner terminated as provided herein. The Negotiation Period may be extended for an additional 60 days upon the mutual written agreement of the CITY and the ELKS. The Santa Ana City Manager is authorized to extend the Negotiation Period on behalf of the City, pursuant to the terms of this MOU. 3. Good Faith Negotiations. The CITY and the ELKS agree, for the Negotiation Period, to negotiate diligently and in good faith to comply with the terms and conditions set forth in this MOU, subject to the following provisions: 3.1 The term "negotiate," as used in this MOU, may allow for the ELKS to include a private development partner to participate in the site plan development process. However, the ELKS will agree to not submit any development application until such time as the tern of this MOU has expired. 3.2 The CITY shall not be precluded by this MOU from furnishing to other persons or entities unrelated to the ELKS information in the possession of the CITY which it is EXHIBIT 1 25A -3 required by law to furnish or which it would otherwise normally furnish to persons requesting information from the CITY concerning its activities, goals and matters of a similar nature. 3,3 The CITY shall not be precluded by this MOU from rmdertaking any actions otherwise required bylaw. 3.4 Any confidential or proprietary information submitted by the ELKS to the CITY pursuant to this MOU shall be identified as such by the ELKS in writing. The CITY shall not disclose confidential or proprietary information unless required by law. The CITY does not represent or warrant that confidential or proprietary information submitted by the ELKS is exempt from public disclosure under the Public Records Act (Gov. Code Section 6250, et $eq.). 4. Acknowledgments and Reservations. 4.1 No Further Obligation. The CITY and the ELKS agree that, if this MOU expires or is terminated for any reason, neither the CITY nor the ELKS shall be under any obligation, nor have any liability to the other Party or any other person regarding the acquisition of the Property or the construction of the Project. 4.2 Development Standards and Design Controls. Certain development standards and design controls for the Project may be established between the CITY and the ELKS, but it is understood and agreed between the Parties that the Project must conform to all City and other applicable governmental development, land use and architectural regulations and standards. Drawings, plans and specifications for the Project shall be subject to the approval of the CITY through the standard development application process for projects within the City. Nothing in this MOU shall be construed as the approval of any plans or specifications for the Project or of the Project itself by the CITY. 4.3 Further Information. The CITY reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of the ELKS to develop and operate the Project. The ELKS acknowledges that it may be requested to make certain financial disclosures to the CITY, its staff, legal counsel or other consultants, as part of the financial due diligence investigations of the CITY relating to the potential development of the Project by the ELKS and that any such disclosures may become public records; the ELKS shall be under no obligation to consent to those requests and make such disclosures, and the ELKS' failure to do so shall not be deemed a default by the ELKS hereunder.. The CITY shall maintain the confidentiality of financial information of the ELKS to the extent allowed by law. 5. Disclosures and Cooperation. The CITY and the ELKS shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other Party to facilitate the negotiations. Unless ,precluded by law, the CITY shall keep confidential all proprietary information provided by the ELKS to the CITY. 5.1 CITY Authority, The ELKS acknowledges and agrees that the CITY will not be bound by any statement, promise or representation made by CITY staff during the Negotiation Period or arising from or related to the Project, and that the CITY shall be legally bound only upon any and all necessary approvals from the CITY's City Cowicil. 25A -4 5.2 No Representations about Future Agreements. The ELKS further acknowledges and agrees that nothing in this MOU or the CITY's cooperation in satisfying its obligations under this MOU shall be deemed a promise, representation or guaranty that the Parties will reach any future agreement, or that the CITY will provide City assistance. 6. Default, 6.1 Cure. Failure or delay by either Party to perform any material term or provision of this MOU shall constitute a default under this MOU. If the Party who is claimed to be in default by the other Patty cures, corrects or remedies the alleged default within fifteen (15) calendar days after receipt of written notice specifying such default, such Party shall not be in default under this MOU. The notice and cure period provided in the immediately preceding sentence shall not, under any circumstances, extend the Negotiation Period. If there are less than fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section shall be automatically reduced to the number of days remaining in the Negotiation Period. 6.2 Notice. The Party claiming that a default has occurred shall give written notice of default to the Party claimed to be in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. However, the injured Party shall have no right to exercise any remedy for a default under this MOU, without first delivering written notice of the default, 6.3 Breach. If a default of either Party remains uncured for more than fifteen (15) calendar days following receipt of written notice of such default, a "breach" of this MOU by the defaulting Party shall be deemed to have occurred, In the event of a breach of this MOU, the sole and exclusive remedy of the Party who is not in default shall be to terminate this MOU by serving written notice of termination on the Party in breach. 7. Termination. This MOU shall terminate upon the occurrence of any of the following: (a) the end of Negotiation Period, subject to any extensions approved by the Parties pursuant to Section 2; or (b) termination of this MOU by either Party pursuant to Section 6. 8. Prohibition Against Assignment, The identity of the ELKS and its principals are of particular concern to the CITY, It is because of this identity that the CITY has entered into this MOU with the ELKS. During the Negotiation Period, no voluntary or involuntary successor -in- interest of the ELKS shall acquire any rights or powers under this MOU, nor shall the ELKS assign all or any part of this MOU without the prior written approval of the CITY, which the CITY may grant, withhold, or deny in its sole and absolute discretion. Any purported transfer of this MOU, voluntarily or by operation of law, shall be null and void and shall confer no rights whatsoever upon any purported assignee or transferee, unless otherwise approved in writing by the CITY. 9. General Provisions. 9.1 Governing Law; Jurisdiction and Venue. This MOU shall be interpreted and enforced in accordance with the provisions of California law in effect at the time it is executed, without regard to conflicts of law provisions, and as such laws may be amended from time to 25A -5 time during the Negotiation Period. Any action brought concerning this MOU shall be brought in the appropriate court for the County of Orange, California. 9,2 Solicitation and Conflicts of Interest. For the term of this MOU, no member, officer or employee of the CITY, during the term of his or her service with the CITY, shall have any direct or indirect interest in this MOU or obtain any present or anticipated material benefit arising therefrom. 9.3 No Third Party Beneficiaries, The CITY and the ELKS expressly acknowledge and agree that they do not intend, by their execution of this MOU, to benefit any persons or entities not signatory to this MOU, including, without limitation, any brokers representing the Parties to this transaction. The foregoing shall not be deemed to release the ELKS from any obligation it may have to pay commissions or brokerage fees which it may be obligated to pay pursuant to any other contract to which the ELKS may be a party. No person or entity not a signatory to this MOU shall have any rights or causes of action against either the CITY or the ELKS arising out of or due to the CITY and the ELKS's entry into this MOU. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and other consultants. 9.4 Notices and Demands, All notices or other communications required or permitted between the Parties under this MOU shall be in writing, and may be: (a) personally delivered, (b) sent by United States registered or certified mail, postage prepaid, return receipt requested, (c) sent by facsimile and /or electronic transmission, confirmed by satne day mailing of a "hard" copy, ordinary first class mail, postage prepaid, or (d) sent by nationally recognized overnight courier service (e.g., Federal Express), addressed to the Parties at the addresses provided below, subject to the right of either Party to designate a different address for itself by notice similarly given. Any notice given by registered or certified United States mail shall be deemed to have been given on the second business day after the same is deposited in the United States mail. Any notice personally delivered or delivered by facsimile or overnight courier service (e.g., Federal Express), shall be deemed giving upon receipt of the same by the Party to whom the notice is given. To CITY: City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 Attn: City Cleric and City Attorney To ELKS: Elks Building Association of Santa Ana dba Santa Ana Elks Lodge 794 212 Elk Lane Santa Ana, California 92701 Attn: George Flores, Chairman 9.5 Entire Agreement, This MOU constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all agreements, representations, warranties, statements, promises and /or understandings, whether oral or written, This MOU may only be amended by the written consent of the Parties. 25A -6 9.6 S everability. In the event that any of the provisions, or portions thereof, of this MOU are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected and shall remain in full force and effect. 9.7 Hold Harmless. No officials, officers, employees, consultants, contractors or agents of the CITY shall be personally liable to the ELKS, any voluntary or involuntary successors or assignees, or any lender or other party holding an interest in the Project, in the event of any default or breach by the CITY, or for any amount which may become due to the ELKS or to its successors or assignees, or on any obligations arising under this MOU. No officials, officers, employees, consultants, contractors or agents of the ELKS shall be personally liable to the CITY, any voluntary or involuntary successors or assignees, or any lender or other party holding an interest in the Project, in the event of any default or breach by the ELKS, or for any amount which may become due to the CITY or to its successors or assignees, or on any obligations arising under this MOU. 9.8 Waivers, No waiver of any breach of any term or condition contained in this MOU shall be deemed a waiver of any preceding or succeeding breach of such term or condition, or of any other term or condition contained in this MOU. No extension of the time for performance of any obligation or act, no waiver of any term or condition of this MOU, nor any modification of this MOU shall be enforceable against CITY or the ELKS, unless made in writing and executed by CITY and the ELKS. 919 Employees. Each party shall be solely responsible for compensating and providing benefits for its employees and consultants to fulfill its obligations hereunder. No party shall have any rights or responsibilities with respect to any other party's employees, agents, or contractors. 9.10 Construction. Headings at the beginning of each section and sub- section of this MOU are solely for the convenience of reference of the CITY and the ELKS and are not a part of this MOU. Whenever required by the context of this MOU, the singular shall include the plural and the masculine shall include the feminine and vice versa. This MOU shall not be construed as if it had been prepared by one or the other of the CITY or the ELKS, but rather as if the CITY and Uie ELKS prepared this MOU. Unless otherwise indicated, all references to sections are to this MOU. If the date on which the CITY or the ELKS is required to take any action pursuant to the terms of this MOU is not a business day of the CITY, as appropriate, the action shall be taken on the next business day of the CITY. 9.11 Counterpart Originals. This MOU may be executed in counterparts, which, when taken together, shall constitute but one and the same instrument. [Signatures on following page] 25A -7 SIGNATURE PAGE TO THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SANTA ANA AND THE ELKS LODGE FOR NEGOTIATION OF THE POTENTIAL JOINT USE OF A PORTION OF THE ZOO AND DEVELOPMENT OF THE ELKS PROPERTY AT ELKS LANE AND FIRST STREET, SANTA ANA IN WITNESS WHEREOF, this Agreement has been executed by the Parties hereto on the day and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO RECOMMENDED FOR APPROVAL: KAREN HALUZA Interim Executive Director - PBA CITY OF SANTA ANA DAVID CAVAZOS City Manager ELKS BUILDING ASSOCIATION OF SANTA ANA By: George Flores, Chairman 25A -8