HomeMy WebLinkAbout25C - AGMT - NEGOTIATING AGMT YMCAREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
SEPTEMBER 16, 2014
TITLE:
APPROVAL OF EXCLUSIVE NEGOTIATING
AGREEMENT FOR RENOVATION AND
REUSE OF THE YMCA PROPERTY
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
•;• 9,
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
1) Authorize the City Manager and City Attorney to approve an Exclusive Negotiation Agreement
on behalf of the City of Santa Ana with St. Joseph Health and Taller San Jose for the reuse of
the YMCA building.
2) Authorize the City Manager and City Attorney to execute a Reimbursement Agreement in the
amount of $40,000 with the parties subject to non - substantive changes approved by the City
Manager and City Attorney.
3) Authorize the City Manager and Clerk of the Council to prepare and execute an agreement
with Orange County Contractors Services dba Orange County Mailboxes and Construction to
complete security enhancements and physical improvements to the exterior of the former
YMCA building for an amount not to exceed $44,000, subject to non - substantive changes by
the City Manager and City Attorney.
The YMCA building, located at 205 West Civic Center Drive, was purchased by the City in 1992
and has been vacant since that time. The building is in serious disrepair due to age, vandalism
and deferred maintenance. Addressing the exterior appearance of the YMCA building and
enhancing the security is an important interim measure being recommended by staff.
At the July 1, 2014, the City Council approved a contract with Orange County Mailboxes and
Construction to address major aesthetic and security improvements including replacing all broken
windows, power washing the entry way stairs and exterior stairs, painting and /or replacement of
existing plywood on exterior windows, demolition of electrical utility box at rear of the building and
replacing the chain link fence with an ornamental iron fence at the north elevation.
Subsequent to the approval of the contract, but prior to the start of work, the City became aware
of potential hazardous dust and airborne particulates in the YMCA building. In response, Risk
25C -1
YMCA Agreement — Renovation /Reuse
September 16, 2014
Page 2
Management directed staff to conduct a lead and asbestos survey prior to any further work being
done on the building.
National Econ, the hazardous material consultant, had the following recommendations:
• First responders entering the building wear protective gear and be fit tested.
• Due to asbestos putty on windows, change scope of work to remove the
requirement for the replacement of broken glass on the 2nd and 3rd floors and place
plywood over the broken windows instead.
• Incorporate a lead and asbestos abatement plan pursuant to state laws in the St.
Joseph/Taller San Jose scope of work.
Ultimately the agreement with Orange County Mailboxes expired on September 1, 2014, without
any funds expended. As a matter of urgency, authorization to enter into a new agreement with
Orange County Mailboxes and Construction is now requested with a similar scope of work
intended to improve the security and appearance of the building in an amount not to exceed
$44,000.
These interim measures to address deferred maintenance represent a good start; however,
planning efforts to encourage the reuse of the YMCA building remain. Over the years, the City
has on numerous occasions, considered proposals to renovate this historic building, but none
were financially feasible. In late 2013, the City Council approved a Request for Qualifications
and potential reuses identified by the Development and Transportation City Council Committee.
Following an extensive review of all submissions by the Selection Committee, the Committee
recommended that the St. Josephs/Taller San Jose team be offered the Exclusive Right to
Negotiate for the following reasons:
• The City Council has a stated objective to implement a strong economic development
program in the Downtown which provides a linkage between the Civic Center and related
professional office and nonprofit organizations.
• The St. Joseph/Taller San Jose team proposes to share operating revenues and expenses,
lending strength to their financial proposal while ensuring the long term viability of the project.
• The St. Joseph/Taller San Jose team would be the end users of the building; thereby
providing a more secure venue than a speculative commercial development.
• The St. Joseph/Taller San Jose team is proposing to complete the project within 3 years.
Based on these factors, the City Council authorized the City Manager to negotiate an Exclusive
Right to Negotiate (Exhibit 1) and a Reimbursement Agreement (Exhibit 2) with the St. Joseph
Health Care /Taller San Jose Team.
The purpose of the Exclusive Negotiating Agreement is to lay out the parameters, deal points and
the performance milestones of the future Development Agreement. The term of the Exclusive
Right to Negotiate is for 180 days. These deal points are contained within the attached exhibit
and are summarized as follows:
25C -2
YMCA Agreement — Renovation /Reuse
September 16, 2014
Page 3
Economic Feasibility:
Developer will conduct an economic feasibility study which will be
evaluated by an independent financial consultant, compared with the proposed
scope of work and used as the basis for any City financial assistance.
• Environmental Reviews:
City and Developer will agree on appropriate environmental reviews at
developer's expense.
• Entitlements:
The City will work cooperatively with the developer to identify any approval
requirements related to the development team including any zoning, parking requirements
and conditional use permits.
City will provide guidelines and community assistance which are applicable to the
rehabilitation or new construction including signage, setback, special uses, and urban design
features.
• Historic Rehab Requirements:
Developer will meet and confer with the City's Historic Preservation Planner who will furnish
developer with historic rehabilitation guidelines to ensure historical preservation requirements
are met.
• Project Budget:
Project Budget will be developed containing details of each type of expenditure and the
applicable sources of funds.
• St. Joseph Rehabilitation Team:
St. Joseph Rehabilitation Team will be required to have experience with historic rehabilitation.
• Parking Payments:
The existing lease with Sycamore Parking will not be terminated. Developer will provide the
City an estimate of the parking spaces required by the developer.
• Reimbursement Agreement:
As stipulated in Reimbursement Agreement, the developer will pay up to $40,000 of the costs
of the City's consultant, to be determined by the parties.
City staff and the developer will work diligently over the next several months to negotiate a strong
development agreement which will comprehensively take into account all of the deal points
mentioned above.
25C -3
YMCA Agreement — Renovation /Reuse
September 16, 2014
Page 4
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal #3 Economic Development,
Objective #5 (Leverage private investment that results in tax base expansion and job creation
citywide), Strategy A (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.
FISCAL IMPACT
Funds are available in the Downtown Maintenance Fund; Contractual Services account
( 40718842 - 62300 - 05800401087 - 3090).
Scott Kutner
District Manager
Community Development Agency
SK/MU
APPROVED AS TO FUNDS AND ACCOUNTS:
V 1 ,X LA _ I
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
Exhibit: 1. Exclusive Negotiating Agreement
2. Reimbursement Agreement
25C -4
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
(YMCA)
This Exclusive Right to Negotiate Agreement (YMCA) ( "Agreement') is made this 17th
day of September, 2014, by and among the City of Santa Ana, California, a municipal
corporation organized as a charter city ( "CITY "), St. Joseph Health System, a California
nonprofit public benefit corporation ("SJHS "), and Taller San Jose, a California nonprofit public
benefit corporation ( "TSJ "). SJHS and TSJ are together referred to as ( "DEVELOPER ") The
CITY, SJHS and TSJ are sometimes individually referred to herein as a "Party" and collectively
as the "Parties." This Agreement is entered into with regards to the following recited facts;
RECITALS
A. The CITY owns that certain real property located at 205 West Civic Center
Drive, Santa Ana, California 92701, which is more particularly described on Exhibit A attached
to this Agreement and incorporated herein by this reference ( "Property "). The CITY purchased
the Property in 1992 and the Property has remained vacant since that time. The Property is listed
as a historic resource, but is currently in disrepair: In August 2013, the CITY issued a Request
for Qualifications ( "RFQ ") for the redevelopment of the Property. After qualified developers
were identified the CITY issued a more extensive Request for Proposals ("RIFF),
B. DEVELOPER responded to the RFQ and the RFP with a proposal to serve the
CITY's residents by supporting the health management of residents of the CITY through the
development of a fitness center, a wellness center and related programs and to provide other
services to benefit the health and welfare of residents of the City, and also to further serve the
CITY by enhancing job training and job creation and in particular providing such services for
disadvantaged youth (the "Project "). The Project is more particularly described in the Project
Summary on Exhibit B attached to this Agreement and incorporated herein by this reference. In
its response to the RFP, DEVELOPER proposed a fielding program, with a budget of
approximately Eighteen Million Dollars ($18;000,000).
C. On March 18, 2014, the Santa Ana City Council ( "CITY Council ") authorized
CITY staff to negotiate an exclusive right to negotiate agreement with DEVELOPER for the
Project. CITY and DEVELOPER enter into this Agreement for the purpose of allocating
responsibilities for the study of the feasibility of the Project and establishing a time frame for the
negotiation of a future agreement regarding the Project and the disposition of the Property
pursuant to a Development Agreement between and among CITY and DEVELOPER (the
"Development Agreement "). DEVELOPER has represented its willingness and ability to
undertake certain studies, plans and other activities necessary to define the scope of development
and determine the feasibility of the Project; provided such studies, plans and other activities are
agreed to by DEVELOPER in advance of such activities being undertaken and the Parties have
entered into an agreement regarding the apportionment of the related costs. Such plans and
other information to be prepared during the course of this Agreement shall serve as the basis for
the Development Agreement. This Agreement memorializes the CITY entering into exclusive
negotiations with DEVELOPER (or their Affiliates, (as defined below)) concerning the matters
described herein.
Exhibit . L
_1.
48677228.1
25C -5
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in
this Agreement, and for their mutual reliance, the Parties agree as follows:
TERMS
1. RECITALS. The Recitals above are incorporated herein by this reference as if fully set forth
herein.
2. EFFECTIVE DATE. This Agreement shall become effective (the "Effective Date ") on
the date when this Agreement has been: (a) approved by the CITY Council, and (b) executed by
the authorized representatives of each of the CITY and DEVELOPER.
3. NATURE OF AGREEMENT. As more particularly described in Section 6.1, this
Agreement is not intended to constitute a binding agreement by the CITY and the DEVELOPER
to acquire or develop the Property, nor is this Agreement intended as a binding agreement to
enter into a 'Development Agreement or any other contract. No Party shall be legally bound to
consummate the acquisition of the Property or development of the Project unless and until a
Development Agreement has been duly executed by the Parties. Neither the CITY nor the
DEVELOPER shall be under any obligation to approve or execute a Development Agreement
upon the conclusion of the Negotiation Period (as defined in Section 4 below), and any party
may refuse to approve and execute a Development Agreement at its sole and absolute discretion,
with or without cause. In the event that a Development Agreement is approved and executed by
the Parties, this Agreement shall be superseded by such Development Agreement.
4. TERM AND NEGOTIATION PERIOD. The term of this Agreement shall commence
on the Effective Date and shall continue thereafter for a period of one hundred eighty (180) days
after the Effective Date ( "Negotiation Period "), unless sooner terminated as provided herein.
The Negotiation Period may be extended once for no more than one hundred eighty (180) days
upon the mutual written agreement of the CITY and DEVELOPER, and all references in this
Agreement to the Negotiation Period shall include any such extended period. The Development
Agreement may contain further exclusivity language as agreed by the Parties. The City Manager
is authorized to extend the Agreement on behalf of the CITY, pursuant to the terms of this
Agreement.
5. GOOD FAITH NEGOTIATIONS. The CITY, SJIIS and TSJ agree, during the
Negotiation Period, to negotiate diligently and in good faith to comply with the terms and
conditions set forth in this Agreement and to complete the tasks set forth in Sections 7 and 8,
respectively, subject to the following provisions:
5.1 The term "negotiate," as used in this Agreement, shall preclude the CITY
from soliciting, accepting, reviewing or analyzing, during the Negotiation Period proposals from
persons or entities other than DEVELOPER or any of their Affiliates to purchase, acquire an
interest in, and /or develop the Property or from entering into any other discussions whether
orally or in writing with any other person or entity regarding the purchase, acquisition of an
interest in, and /or development of the Property. DEVELOPER acknowledges that, during the
Negotiation Period, persons or entities other than DEVELOPER may submit unsolicited
proposals to the CITY relating to the purchase, acquisition of an interest in, and /or the
-2-
48677228.1
25C -6
development of the Property. DEVELOPER agrees that the CITY shall not be in violation of
this Agreement if the CITY (a) does not review or analyze such proposals, (b) notifies the
persons or entities submitting such proposals in writing that the CITY is not considering
proposals with respect to the Property and (c), to the extent permitted by applicable law, returns
such proposals and all copies thereof to the persons or entities that submitted them. "Affiliates"
means any other entity directly or indirectly controlling, controlled by or under direct or indirect
common control with SJHS and/or TSJ.
5.2 CONFIDENTIALITY. "Confidential Information" shall, except as
otherwise provided in Section 5.2, mean any of the following information (a) furnished to the
CITY in furtherance of the Project by DEVELOPER, or the respective Affiliates, directors,
officers, employees, consultants or agents of DEVELOPER, and (b) all or any portion of any
notes, analyses, compilations, studies, interpretations or other documents, records or materials
prepared by either DEVELOPER or the CITY, or their employees, officers, directors or agents
(`Representatives ") which contain, reflect, derive from or are based upon such information. The
term "Confidential information" shall not include, and the obligations of confidentiality and
restrictions shall not apply to, any information that: (a) was in the public domain prior to the date
of this Agreement or subsequently came into the public domain through no fault of the CITY or
its Representatives; (b) was lawfully received by the CITY from a third party where such third
party was free of any obligation of confidence to the DEVELOPER; (c) was already in the
lawful possession of the CITY prior to receipt thereof, directly or indirectly, from the
DEVELOPER, provided however that any obligations of confidentiality or restrictions on use
shall remain in effect; (d) is subsequently and independently developed by Representatives of the
CITY without reference to the Confidential Information disclosed under this Agreement; or (e) is
disclosed by the CITY in accordance with the prior written approval of DEVELOPER.
521 Except as expressly authorized by the prior written consent of
DEVELOPER, and subject to Section 5.2.4, the CITY shall, and shall cause its
Representatives to:
a. limit access to any Confidential Information received by it to its
Representatives who have a need -to -know in connection with the evaluation of the Project;
b. advise its Representatives having access to the Confidential
Information of the proprietary and confidential nature thereof and of the obligations set forth
in this Agreement;
c. take appropriate action by instruction or agreement with its
Representatives having access to the Confidential Information to fulfill its obligations under
this Agreement;
d. safeguard all Confidential Information received by it using a
reasonable degree of care, and not less than that degree of care used by it in safeguarding its
own similar information or material;
e. use all Confidential Information received by it solely for purposes
of evaluating the Project;
-3-
48677228A
25C -7
f. not disclose any Confidential Information received by the CITY to
any third party; and
g. not disclose to any third party the fact that the Confidential Information
has been received by the CITY.
5.2.2 Without the written consent of both SJHS and TSJ, neither the
CITY nor its Representatives shall disclose to any third party any of the terms, conditions or
other facts with respect to the Project, including the status thereof. Notwithstanding the
foregoing, it is understood that in order to evaluate the feasibility of the Project and
entitlements and public incentives that may be available to the Project, the Parties are
authorized to (i) discuss the existence of the Project and to discuss the entitlements and
potential public incentives available to the Project with the necessary employees, officials,
agents and consultants of the CITY and the necessary employees, officials, agents and
consultants of County of Orange, and (ii) disclose the Confidential Information and the
existence of the discussions and negotiations, the Project to any potential Project investors,
finance team members, community development entities and /or lenders (for purposes of
evaluating the Project.
5.2.3 Upon the request of DEVELOPER, the CITY shall, and shall cause
all Representatives to, confirm the destruction of, or in the case of computerized, electronic,
digital or non - recoverable data, erasure of all Confidential Information and shall destroy all
memoranda, notes, records, drawings, manuals and other documents or materials (and all
copies of same, including "copies" that have been converted to computerized, digital or
electronic media in the form of image, data or word processing files either manually or by
image capture) based on or including any Confidential Information. Upon the destruction of
such materials, an authorized officer of the CITY shall, upon the request of DEVELOPER,
certify in writing, that all such materials have been either destroyed or erased in accordance
with the foregoing. Notwithstanding the foregoing, the CITY shall be permitted to retain
such portions of the Confidential Information as may be - required by applicable law
(including, without limitation, document retention requirements related to pending or
threatened litigation); provided that any such information retained shall remain subject to this
Agreement. Notwithstanding the return of Confidential Information, the CITY and its
Representatives shall continue to be bound by their respective obligations in a manner
contemplated by this Agreement.
5.2.4 In the event that the CITY or any of its Representatives is required
by law to disclose any of the Confidential Information, or that discussions or negotiations are
taking place concerning the Project or any of the terms, conditions, or other facts with respect
thereto, the CITY shall provide DEVELOPER with prompt written notice of any such
requirement so that DEVELOPER may seek a protective order or other appropriate remedy
and /or waive compliance with the provisions of this Agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver by or on behalf of DEVELOPER,
the CI'T'Y or any of its Representatives is nonetheless legally compelled to disclose the
Confidential Information, the CITY or its Representatives may, without liability hereunder,
(a) disclose only that portion of the Confidential Information which is legally required to be
disclosed, and (b) notify DEVELOPER immediately of the items of Confidential Information
-4-
48677228.1
25C -8
to be disclosed provided that the CITY and its Representatives exercise commercially
reasonable efforts to preserve the confidentiality of the Confidential Information including,
without limitation, by cooperating with DEVELOPER to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded the Confidential
Information.
5.2.5 This Agreement does not confer any right, license, interest or title
in, to or under the Confidential Information to the CITY. No license is hereby granted to the
CITY, by estoppel or otherwise under any patent, trademark, copyright, trade secret or other
proprietary rights of DEVELOPER. Title to the Confidential Information shall remain solely
in DEVELOPER.
5.2.6 The CITY does not represent or warrant that Confidential
Information submitted by DEVELOPER is exempt from public disclosure under the Public
Records Act (Gov. Code Section 6250 et seq).
5.2.7 The provisions of this Section 5.2 shall survive the termination or
expiration of this Agreement
5.3 The CITY's Representations. The CITY hereby represents and warrants to
DEVELOPER the following:
5.3.1 The execution, delivery and performance of this Agreement by the
CITY have been duly authorized and approved by all requisite action, and no other
authorizations or approvals, whether of governmental bodies or otherwise, will be necessary
in order to enable the CITY to enter into or to comply with the terms of this Agreement;
5.3.2 This Agreement and all other documents and certificates executed
and delivered by the CITY in connection with the transactions contemplated by this Agreement
constitute legal, valid and binding obligations of the CITY, enforceable against the CITY in
accordance with their respective terms. Neither this Agreement nor anything provided to be
done under this Agreement violates or shall violate any contract, document, understanding,
agreement, instrument, or judicial order to which the CITY is a party or by which it is bound;
5.3.3 There are no pending, or to the best of the CITY's knowledge,
threatened actions, suits or proceedings before any court, governmental agency, arbitrator or
instrumentality affecting the CITY which, if adversely determined, could affect the legality,
validity or enforceability of this Agreement;
5.14 The CITY has not entered into any other agreements relating to
development of the Property; and
5,3.5 The CITY has received no notice of and has no knowledge of any
pending or threatened condemnation or transfer in lieu thereof affecting any of the Property,
nor has die CITY agreed or committed to transfer or dedicate any of the Property.
-5-
48677228.1
25C -9
6. DEVELOPMENT AGREEMENT
6.1 Negotiation of a Development Agreement and City Assistance During the
Negotiation Period, the CITY and DEVELOPER shall exercise reasonable efforts to complete
discussions relating to the terms and conditions of the Development Agreement and such other
matters, as may be mutually acceptable to the CITY and DEVELOPER, in their respective
reasonable discretion. Nothing herein shall be deemed to be a representation by either the CITY
or DEVELOPER that a mutually acceptable Development Agreement will be entered into.
Nothing in this Agreement shall impose any obligation on any Party to agree to or execute the
Development Agreement or for the CITY to provide any financial or other assistance to
DEVELOPER for the Project. Nothing herein shall be deemed to be a guarantee or
representation that any proposed Development Agreement will be approved by the CITY
Council. DEVELOPER acknowledges and agrees that the CITY consideration of the
Development Agreement is subject to the sole and absolute discretion of the CITY Council, any
applicable governmental entities and all legally required public hearings, public meetings,
notices, factual findings and other determinations required by law.
6.2 Deal Points Memorandum. A written memorandum setting forth in outline
form (the "Deal Points Memorandum ") of initial proposed terms is attached hereto as Exhibit C
and is incorporated herein by this reference. The Deal Points Memorandum is intended to help
frame the issues.
6.3 Costs and Expenses. All fees and expenses for engineers, architects, financial
consultants, legal, planning and other consultants and contractors, retained by DEVELOPER to
perform DEVELOPER's obligations set forth in this Agreement, shall be the sole responsibility
of DEVELOPER. All fees and expenses for engineers, architects, financial consultants, legal,
planning and other consultants and contractors, retained by the CITY to perform the CITY's
obligations set forth in this Agreement, shall be subject to reimbursement pursuant to a
reimbursement agreement to be executed concurrently with this Agreement.
7. Developer Tasks During Negotiation Period, During the Negotiation Period
DEVELOPER shalt, at DEVELOPER's sole cost and expense, undertake the following tasks:
7.1 Desin. Not later than ninety (90) days after the Effective Date,
DEVELOPER shall use its best efforts to confirm the preliminary configuration and design of
the Project.
7.2 Historic Preservation Plan. Within seven (7) days of the Effective Date of this
Agreement, the CITY shall provide DEVELOPER with complete and accurate details regarding
historic preservation requirements ( "Historic Requirements "). Once Historic Requirements have
been received by DEVELOPER, DEVELOPER shall not later than ninety (90) days after the
Effective Date submit to the CITY verification that it has considered the historic nature of the
Property, has assembled a rehabilitation team with experience with historic preservation, and has
a plan to preserve, at a minimum, the external historic features. Failure by the CITY to provide
complete and accurate Historic Requirements shall constitute a breach of this Agreement.
-6-
48677228.1
25C -10
7.3 Project Implementation Schedule and Scope of Development. Not later than
ninety (90) days after the Effective Date, DEVELOPER shall use its best efforts to submit to the
CITY a Project implementation schedule for the Project which shall include without limitation, a
concept plan and detailed scope of development identifying all major activities and required
entitlements such as preliminary construction drawings, final construction drawing and projected
commencement and completion of construction dates.
7.4 Financial Plan. Not later than ninety (90) days after the Effective Date,
DEVELOPER use its best efforts to submit to the CITY a financial plan which shall include the
following: (a) a detailed proforma illustrating the estimated cost of the Project , and (b) an
outline of DEVELOPER's proposed methods to finance and complete the Project, including the
proposed sources of funding for the Project and the terms and conditions of such funding.
7.5 Entitlements. Not later ninety (90) days after the Effective Date,
DEVELOPER shall use its best efforts to apply to the CITY for any necessary entitlement
renewals or modifications required for the construction of the Project on the Property.
7.6 Environmental Review. Not later ninety (90) days after the Effective Date,
DEVELOPER shall use its best efforts to identify all environmental reviews and permits
required for the construction of the Project on the Property.
7.7 Development Agreement, ement, DEVELOPER will review and comment on drafts
of a proposed Development Agreement prepared by the CITY's legal counsel and will meet and
negotiate diligently and in good faith with the CITY regarding the Development Agreement.
8. CITY Tasks During Negotiation Period. During the Negotiation Period, the CITY
shall undertake the following tasks subject to reimbursement as provided in Section 6.3:
8.1 Review of Developer's Documents and Submittals. The CITY staff will
diligently review all plans and documents submitted by DEVELOPER and promptly provide
DEVELOPER with a written response outlining relevant comments, but in no event less than
thirty (30) days after submitted by DEVELOPER.
8,2 Acquisition/Assignment of Parking for Property, CITY staff will diligently
pursue, the acquisition or assignment of sufficient parking spaces to serve the Property for
DEVELOPER's intended use and to meet all applicable govermnental requirements, subject to
the Development Agreement, as described below.
8.3 Development Agreement. The CITY will cause the CITY's legal counsel to
prepare a Development Agreement and will meet and negotiate diligently and in good faith with
DEVELOPER regarding the Development Agreement.
8.4 �jp_pjes, of Documents. Within five (5) days of the Effective Date, the CITY
shall provide to DEVELOPER copies of all studies, reports, inspections, surveys, and other
materials relating to the Property that is in the CITY'S control or possession, for
DEVELOPER'S review and use in connection with its investigation of the Property and the
Proj ect.
48677228.1
25C -11
9. Acknowledgments and Reservations.
9.1 No Further Obligation. The Patties agree that, if this Agreement expires or is
terminated for any reason, or the Development Agreement is not approved and executed by all
Parties, except as expressly provided in this Agreement, the City, on the one hand, and SJHS and
TSJ, on the other hand, shall not be under any obligation, nor have any liability to the other
applicable Party or any other person regarding the acquisition of the Property or the construction
of the Project. The provisions of this Section 9.1 shall survive the termination or expiration of
this Agreement.
9.2 Development Standards and Design Controls. Certain development standards
and design controls for the Project may be established between DEVELOPER and the CITY, but
it is understood and agreed among the Parties that the Project must conform to all CITY and
other applicable governmental development, land use and architectural regulations and standards,
except and unless the same are waived by the CITY or other governmental authority with
jurisdiction over the same. To the extent required by applicable law, 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 and, which approval shall not be
unreasonably withheld, conditioned or delayed. The CITY shall reasonably cooperate with
DEVELOPER's professional associates in providing information in connection with
DEVELOPER's preparation of drawings, plans and specifications. Nothing in this Agreement
shall be construed as the approval of any plans or specifications for the Project or of the Project
itself by the CITY. The CITY acknowledges that the studies undertaken by DEVELOPER on
the Project are proprietary to DEVELOPER and DEVELOPER's consultants and that the CITY
shall not acquire any right to distribute, use or benefit from the studies by virtue of the terns of
this Agreement. Nothing in this Agreement shall require DEVELOPER. to make any
development or land use application to the CITY or any other public body regarding the Project.
9.3 Further Information. The CITY reserves the right to reasonably obtain further
information, data and commitments to ascertain the ability and capacity of DEVELOPER to
develop mid operate the Property and/or the Project. DEVELOPER 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 construction of the Project by DEVELOPER and that any such disclosures may become
public records. The Confidential Information provided to the CITY pursuant to this Section 93
is subject to the requirements of Section 5.2 of this Agreement.
9.4 CITY Not a Party to Certain Aereements. The Ci'fY shall not be deemed to
be a party to any agreement for the acquisition, lease, or disposition of real or personal property
to DEVELOPER or the development of the Project on the Property or elsewhere, until the terms
and conditions of the Development Agreement are approved by the CITY's governing board, in
its reasonable discretion.
10. Disclosures and Cooperation. The CITY on the one hand, and SJHS and TSJ on the
other hand, shall cooperate with each other and supply such documents and information as may
be reasonably requested by the other Party to facilitate the negotiations. Any Confidential
Information provided to the CITY pursuant to this Section 10 is subject to the requirements of
-8-
48677228.1
25C -12
Section 5.2 of this Agreement.
10.1 Statements, Promises and Representations Made Prior the Execution of the
Development Agreement. Each Party acknowledges and agrees that the other Parties will not be
bound by any statement, promise or representation made by the disclosing Party's staff during
the Negotiation Period or arising from or related to the Project, and that each Party shall be
legally bound only upon the approval of the Development Agreement by the applicable
governing authority of such Party; provided; however, that each Party agrees that it is bound by
the Binding Terms (as defined below) of this Agreement.
10.2 No Representations About Future Agreements. Each Party further
acknowledges and agrees that nothing in this Agreement or a Party's cooperation in satisfying its
obligations under this Agreement shall be deemed a promise, representation or guaranty that the
Parties will reach any future agreement, enter into the Development Agreement or unless
memorialized in another agreement or otherwise agreed to that the CITY will provide financial
assistance for the Project.
11. Default.
11.1 Cure. Failure or delay by either Party to perform any material term or
provision of this Agreement shall constitute a default under this Agreement. If the Party who is
claimed to be in default by the other Party cures, corrects or remedies the alleged default within
thirty (30) calendar days after receipt of written notice specifying such default, such Party shall
not be in default under this Agreement. 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 thirty (30) days remaining in the Negotiation Period, the cure period allowed
pursuant to this Section 11,1 shall be automatically reduced to the number of days remaining in
the Negotiation Period.
11.2 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 Agreement, without first delivering written notice of the default.
11,3 Breach. If a default of a Party remains uncured for more than thirty (30)
calendar days following receipt of written notice of such default, a "breach" of this Agreement
by the defaulting Party shall be deemed to have occurred. Except as expressly provided in this
Agreement, in the event of a breach of this Agreement, the sole and exclusive remedy of the
Party who is not in default shall be to terminate this Agreement by serving written notice of
termination on the Party in breach.
11.4 Confid~entialitIBreach, Without prejudice to the rights and remedies
otherwise available to DEVELOPER, because an award of money damages would be inadequate
for any breach of the CITY's obligations contained in Section 5.2 and any such breach would
cause the DEVELOPER irreparable harm, the CITY agrees that, in the event of any such breach
or threatened breach of the CITY's obligations contained in Section 5.2, the DEVELOPER shall
-9-
486772'28.1
25C -13
also be entitled, without the requirement of posting a bond or other security, to equitable relief,
including injunctive relief and specific performance. It is further understood and agreed that no
failure or delay by the DEVELOPER in exercising any right, power or privilege contained in this
Section 11.4 shall operate as a waiver thereof.
11.5 Survival. The provisions of this Section 11 shall survive the termination or
expiration of this Agreement.
11 Termination. This Agreement shall terminate upon the occurrence of any of the
following: (a) the end of the Negotiation Period, subject to any extensions approved by the
Parties pursuant to Section 4, (b) a Development Agreement, acceptable in form and content to
each of the CITY and DEVELOPER, is negotiated, approved and executed by each Party's
governing body, (c) termination of this Agreement by either Party pursuant to Section 11, or
termination by SJHS or TSJ pursuant to terms of Section 14.16.
13. Assignment. The qualifications and identity of DEVELOPER and its respective
principals are of particular concern to the CITY. It is because of these qualifications and identity
that the CITY has entered into this Agreement with DEVELOPER. During the Negotiation
Period, no voluntary or involuntary successor -in- interest of DEVELOPER shall acquire any
rights or powers under this Agreement, nor shall DEVELOPER assign all or any part of this
Agreement, without the prior written approval of the CITY, which approval CITY may grant,
withhold, or deny in its sole and absolute discretion. Any purported transfer of this Agreement,
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
pursuant to this Section.
14. General Provisions,
14.1 Non- Bindine. Except for Sections 2, 4, 5, 9.1, 11, 12, and Section 14, which
are intended to create legally binding obligations on the Parties (the `Binding Provisions "), this
Agreement does not constitute and will not give rise to any legally binding obligation on the part
of the Parties. Except as expressly provided in the Binding Provisions (or as expressly provided
in any agreement that the Parties may enter into in the future), (a) this Agreement is simply an
expression of the intent of the Parties, and does not require the Parties to execute any further
agreements, and (b) neither Party shall have any rights or obligations to one another unless and
until a Development Agreement is fully executed and delivered by all 'Parties. The execution of
any such Development Agreement would also be subject to approval by SJHS and TSJ's
respective boards of directors. Moreover, except as expressly provided in the Binding Provisions
(or as expressly provided in any binding written agreement that the Parties may enter into in the
future), no past or future action, course of conduct, or failure to act relating to the Project, or
relating to the negotiation of the terms of the Project, the Development Agreement or any
definitive agreement among the Parties, will give rise to or serve as a basis for any obligation or
other liability on the part of the Parties. The provisions of this Section 14.1 shall survive the
termination or expiration of this Agreement.
14.2 Governing Law; Jurisdiction and Venue. This Agreement shall be interpreted
and enforced in accordance with the provisions of California law in effect at the time it is
-10-
48677228.l
25C -14
executed, without regard to conflicts of law provisions, and as such laws may be amended from
time to time during the Negotiation Period. Any action brought concerning this Agreement shall
be brought in the appropriate court for the County of Orange, California. The provisions of this
Section 14.2 shall survive the termination or expiration of this Agreement.
14.3 Conflicts of Interest. For the term of this Agreement, 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 Agreement or obtain any present or anticipated material benefit arising
therefrom.
14.4 No Third Partv Beneficiaries, Each Party expressly acknowledges and agrees
that they do not intend, by their execution of this Agreement, to benefit any persons or entities
not 'signatory to this Agreement, including, without limitation, any brokers representing the
Parties to this transaction. The foregoing shall not be deemed to release SJHS and /or TSJ 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 SJHS and /or TSJ may be a party. No person or
entity not a signatory to this Agreement shall have any rights or causes of action against a Party
arising out of or due to a Party's entry into this Agreement. 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. The
CITY and DEVELOPER each represent to the other that they have not had any conversations or
dealings with any broker, finder or other intermediary in connection with the Property. The
CITY and DEVELOPER each agree to defend and indemnify the other from and against any and
all third party liabilities, claims, demands, damages and costs of any kind (including attorneys'
fees, costs and expenses) arising from or connected with any broker's or finder's fee or
commission or charge claimed to be due by any person arising from or by reason of the other's
conduct with respect to this transaction. The provisions of this Section 14.4 shall survive the
termination or expiration of this Agreement.
14.5 Norices and Demands. All notices or other communications required or
permitted between the Parties under this Agreement 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 same
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 a 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
Santa Ana, CA 92701
Attn: City Clerk and City Attorney
-11-
48677228.1
25C -15
To SJHS: St. Joseph Health System
3345 Michelson Drive
Irvine, CA 92612
Attn: General Counsel
To TSJ: Taller San Jose
801 N, Broadway
Santa Ana, CA 92701 -3423
Attn: Executive Director
14.6 Entire Agreement. This Agreement 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 Agreement may only be amended by the written consent of the Parties.
14,7 Severability. In the event that any of the provisions or portions thereof, of this
Agreement 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. The provisions of this Section 14.7 shall survive the
termination or expiration of this Agreement.
48677228.(
14.8 Indemnification
(a) SJHS shall defend and indemnify the CITY and its Representatives from and
against any and all actual third party claims, losses, damages, fines, costs,
penalties, expenses (including reasonable and actual attorneys' fees, costs of
experts and other litigation expenses), and liabilities of any type or nature,
including those related due to death or injury to any person and injury to any
property, proximately resulting from any gross negligence or willful
misconduct by SJHS or any of its Representatives related to the activities
described or contemplated by this Agreement (collectively "Damages ");
provided however; that SJHS shall not be liable to, nor required to defend or
indemnify the CITY or its Representative's from Damages that are the result
of the negligence or willful misconduct of another Party (in such case SJHS's
indemnification obligations will be reduced in proportion to such Party's share
of liability for such negligence or willful misconduct, if any).
Notwithstanding anything in this Agreement to the contrary, all liability of
SHIS for damages for breach of any covenant, duty or obligation (whether in
contract, negligence, tort or otherwise) of SJHS under this Agreement or in
any manner relating hereto shall be limited, if applicable, to the claiming
Party's actual direct damages, and in no event shall SJHS or its
Representatives ever be liable or responsible for any consequential, indirect,
special, punitive or exemplary damages, or for any damages arising out of or
relating to lost profits or business interruption (all of which are hereby
-t2-
25C -16
expressly waived by the CITY, for itself and on behalf of its Representatives).
No officials, officers, employees, consultants, contractors or agents of SJHS
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 or
the Property, in the event of any default or breach by SJHS, or for any amount
which may become due to the CITY or to its successors or assignees, or on any
obligations arising under this Agreement.
(b) TSJ shall defend and indemnify the CITY and its Representatives from and
against any and all Damages; provided however, that TSJ shall not be liable to,
nor required to defend or indemnify the CITY or its Representative's from
Damages that are the result of the negligence or willful misconduct of another
Party (in such case TSJ's indemnification obligations will be reduced in
proportion to such Party's share of liability for such negligence or willful
misconduct, if any). Notwithstanding anything in this Agreement to the
contrary, all liability of TSJ for damages for breach of any covenant, duty or
obligation (whether in contract, negligence, tort or otherwise) of TSJ under
this Agreement or in any manner relating hereto shall be limited, if applicable,
to the claiming Party's actual direct damages; and in no event shall TSJ or its
Representatives ever be liable or responsible for any consequential, indirect,
special, punitive or exemplary damages, or for any damages arising out of or
relating to lost profits or business interruption (all of which are hereby
expressly waived by the CITY, for itself and on behalf of its Representatives).
No officials, officers, employees, consultants, contractors or agents of TSJ
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 or
the Property, in the event of any default or breach by TSJ, or for any amount
which may become due to the CITY or to its successors or assignees, or on any
obligations arising under this Agreement.
(c) To the extent allowable under applicable law, the CITY shall defend and
indemnify DEVELOPER and its Representatives from and against any and all
Damages; provided however, that the CITY shall not be liable to, nor required
to defend or indemnify DEVELOPER or its Representative's from Damages
that are the result of the negligence or willful misconduct of another Party (in
such case the CITY's indemnification obligations will be reduced in
proportion to such Party's share of liability for such negligence or willful
misconduct, if any). Notwithstanding anything in this Agreement to the
contrary, all liability of the CITY for damages for breach of any covenant,
duty or obligation (whether in contract, negligence, tort or otherwise) of the
CITY under this Agreement or in any manner relating hereto shall be limited,
if applicable, to the claiming Party's actual direct damages, and in no event
shall the CITY or its Representatives ever be liable or responsible for any
consequential, indirect, special, punitive or exemplary damages, or for any
damages arising out of or relating to lost profits or business interruption (all of
which are hereby expressly waived by DEVELOPER, for itself and on behalf
of its Representatives). No officials, officers, employees, consultants,
-13-
48677229.1
25C -17
contractors or agents of the CITY shall be personally liable to DEVELOPER,
any voluntary or involuntary successors or assignees, or any lender or other
party holding an interest in the Project or the Property, in the event of any
default or breach by the CITY, or for any amount which may become due to
DEVELOPER or to its successors or assignees, or on any obligations arising
under this Agreement.
(d) The provisions of this Section 14.8 shall survive the termination or expiration
of this Agreement.
14.9 Attorneys' Fees. In the event that either Party brings any legal action to
interpret or enforce any provision of this Agreement, the prevailing Party in that action shall be
entitled to receive, in addition to all other relief available to it, its costs of litigation and
reasonable attorney's fees, including costs and fees incurred on appeal and in enforcing any
judgment which may be rendered on the underlying action. The provisions of this Section 14.9
shall survive the termination or expiration of this Agreement.
14.10 Waivers. No waiver of any breach of any term or condition contained in this
Agreement 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 Agreement. No extension of the
time for performance of any obligation or act, no waiver of any term or condition of this
Agreement, nor any modification of this Agreement shall be enforceable against the CITY or
DEVELOPER, unless made in writing and executed by the CITY and DEVELOPER.
14,11 Construction. Headings at the beginning of each section and sub- section of this
Agreement are solely for the convenience of reference of the CITY and DEVELOPER and are
not a part of this Agreement. Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine and vice versa. This
Agreement shall not be construed as if it had been prepared by one or the other of the CITY or
DEVELOPER, but rather as if the CITY and DEVELOPER prepared this Agreement, Unless
otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in
this Agreement are attached to this Agreement and incorporated into this Agreement by this
reference. If the date on which the CITY or DEVELOPER is required to take any action pursuant
to the terms of this Agreement is not a business day of the CITY, as appropriate, the action shall
be taken on the next business day of the CITY.
14.12 Counterpart Originals. This Agreement may be executed in counterparts
which, when taken together, shall constitute but one and the same instrument. Further, facsimile
or email transmission of a true scanned copy of any signed original counterpart transmission
shall be deemed the same as the delivery of an original.
14.13 No Partnership or Agency. Nothing in this Agreement is intended to, or shall
be deemed to, constitute a partnership or joint venture of any kind between or among any of the
Parties, nor constitute any Party the agent of another Party for any purpose. No Party shall have
authority to act as agent for, or to bind, the other Party in any way.
-14-
486772281
25C -18
14.14 Costs. Each of the Parties will be responsible for and bear all of their own
respective costs and expenses (including any broker's or finder's fees and the expenses of their
respective attorneys and representatives) incurred at any time in connection with pursuing or
consummating the Proposed Transaction.
14.15 Disclosure. To the extent allowable under applicable law, without the prior
written consent of the other Parties, no Party will, and will cause their representatives not to
make, directly or indirectly, any public comment, statement or communication with respect to, or
otherwise to disclose or to permit the disclosure of the terms, conditions or other aspects of the
Project. If a Party is required by law to make any such disclosure, it must first provide to the
other Parties the content of the proposed disclosure, the reasons that such disclosure is required
by law, and the time and place that the disclosure will be made.
1416 Termination for Other Reasons. In the event that this Agreement or the
Parties' relationship established herein at any time during the term, either (a) adversely affects
SJHS or TSJ or any of its Affiliate's tax - exempt status or the tax- exempt status of interest on
securities issued by SJH or any of its Affiliates, or (b) requires action to be taken with respect to
the on securities issued by SJH or any of its Affiliates, SJHS or TSJ, as applicable DEVELOPER
may, in SJHS's or TSJ's, as applicable, sole discretion, (x) terminate this Agreement; or (y)
require amendment of this Agreement to reasonably remediate the adverse effect on the impacted
Party's tax - exempt status or the tax - exempt status of interest on the securities issued by SJHS or
TSJ or any of its Affiliates, as applicable.
[Signatures on following page]
-15-
48677228,1
25C -19
IN WITNESS WHEREOF, this Agreement has been executed by the Parties to be
effective as of the Effective Date.
CITY OF SANTA ANA
St. Joseph Health System, a California
City of Santa Ana, California nonprofit public benefit corporation
a municipal corporation
By:
Annette Walker
By: Its: Executive Vice President, Strategic
MIGUEL PULIDO Services
Mayor
Taller San Jose, a California nonprofit
Attest: corporation
By: By:
MARIA D. HUIZAR Shawna Smith
Clerk of the Council Its: Executive Director & CEO
APPROVED AS TO FORM
SONIA R. CARV
City Attornpy—
Assistant City
-16-
48677228.1
25C -20
48677228.1
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
EXHIBIT A
25C -21
EXHIBIT W
LEGAL DESCRIPTION
A PORTION OF BLOCK'C' OF SPURGEON'S ADDITION TO SANTA ANA, IN THE CITY OF SANTAANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 1 PAGE 56, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, A PORTION
OF THE ALLOTMENT TO JACOB ROSS AS DESCRIBED IN THE FINAL DEGREE OF PARTITION OF THE
RANCHO SANTIAGO DE SANTA ANA, IN SAID CITY, COUNTY AND STATE, WHICH WAS ENTERED IN
1868, IN BOOK "B" PAGE 410, OF JUDGEMENTS OF THE DISTRICT COURT OF THE lfT' JUDICIAL
DISTRICT IN AND FOR LOS ANGELES COUNTY, STATE OF CALIFORNIA, TOGETHER WITH A PORTION
OF A STRIP OF LAND BOUNDED ON THE NORTH BY SOUTH LINE OF SAID ALLOTMENT TO JACOB
ROSS; ON THE EAST BY THE WESTERLY LINE SYCAMORE STREET, AS SAID SYCAMORE STREET
WAS ESTABLISHED BY DEED RECORDED IN BOOK 16 PAGE 111 OF DEEDS; ON THE SOUTH BY THE
NORTHERLY LINE OF SAID SPURGEON'S ADDITION; AND ON THE WEST BY THE EAST LINE OF
BROADWAY, AS SAID BROADWAY EXISTED ON SEPTEMBER 7, 1922, DESCRIBED AS A WHOLE AS
FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF EIGHTH STREET, FORMALLY
KNOWN AS CHURCH STREET WITH THE EASTERLY LINE OF THE WESTERLY 96.00 FEET OF SAID
BLOCK 101 AS DESCRIBED IN PARCEL 1 OF THAT CERTAIN GRANT DEED RECORDED JUNE 25, 2001,
AS INSTRUMENT NO. 20010416173, OF OFFICIAL RECORDS, IN SAID OFFICE OF THE COUNTY
RECORDER; THENCE NORTHERLY ALONG SAID EASTERLY LINE AND THE EASTERLY LINE OF
PARCEL 2 OF SAID GRANT DEED, NORTH 00 021'30" EAST, 193.07 FEET TO A POINT ON THE
SOUTHERLY LINE OF SAID ALLOTMENT TO JACOB ROSS; THENCE ALONG SAID SOUTHERLY LINE
NORTH 90 °00'00" EAST 28.31 FEET TO A POINT ON A LINE PARALLEL WITH AND 125.00 FEET WEST
OF THE WESTERLY LINE OF SYCAMORE STREET, AS WAS ESTABLISHED BY DEED RECORDED IN
BOOK 18 PAGE 111 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY
ALONG SAID PARALLEL LINE NORTH 00 016'06' EAST 115.35 FEET TO A POINT ON THE NORTHERLY
LINE OF THAT CERTAIN QUITCLAIM DEED RECORDED MARCH 20, 1947 IN BOOK 1465 PAGE 500, OF
SAID OFFICIAL RECORDS; THENCE ALONG SAID NORTHERLY LINE NORTH 89 °59'25" EAST, 125.00
FEET TO SAID WESTERLY LINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID
WESTERLY LINE, SOUTH 00 °16'06" WEST, 308,99 FEET TO SAID NORTHERLY LINE OF EIGHTH
STREET; THENCE ALONG SAID NORTHERLY LINE NORTH 89 047'45' WEST, 153.61 FEET TO SAID
POINT OF BEGINNING.
SAID PARCEL CONTAINS APPROXIMATELY 1.01 AC,
AS SHOWN ONfEXHIBIT'S', ATTACHED HERETO AND MADE A PART HEREOF.
DATED THIS cvtDAY OF -UegC� 2002. /r' A II \.
L�01"814111io J PR USELTON, LS. 6 �2/9103
First American Title
25C -22
(/g'9 J "8
ld) yUr•.,
l�poop�6p6�k ORi °OV
N 69'59'25` W 125.00'
a� °
eo�1 9 g
Q
�a qo W
0 125.00'
mLi 2CpcF z y
(1.01 AC)
Li
PARCEL 2 O
20010416173 OR < C,
96.00' CYa�� �sb�ClQSf°� !n
(20010416173 OR)� ^Tq� S
PARCEL 1 W �?
20010416173 OR
y X30
oiQs N WOW W 153.61'
L�
EIGHTH STREET
SCALE; 11 "= 50' (CHURCH STREET)
FU+1Jl�'Vli'i ImyKbon% 100 EXHIBIT 'B'
L*; ca m& itd08
DIRER G in ('��V4.10 SYCAMORE STREET - YMCA
am r�aatua� SANTA ANA, CALIFORNIA
First American Title
25C -23
EXHIBIT "B"
PROJECT SUMMARY
St. Joseph Health has along history of service to the people of Santa Ana. Through a needs
assessment, it was identified that although there are hundreds of fitness facilities in Orange
County, not asingle facility is in this particular neighborhood. St. Joseph Health's appreciation
of the impact these types of resources have in creating a health community has inspired it to
bring wellness, fitness and clinic services to the workers and residents of the area. In fact, St.
Joseph Health has been actively looking for an appropriate location for the last two years.
Taller San Jose has a strong desire to strengthen its presence and expand the services that it
currently provides. The need for Taller San Jose in Orange County continues to grow; according
to the 2010 U.S. Census, there are more than 55,000 impoverished youth between the ages of 18
and 28 living in Central Orange County. High unemployment among Taller San Jose's target
population, along with high rates of criminal recidivism and an incarceration system stretched
beyond its capacity will continue to exacerbate this situation for the foreseeable future.
California has the highest recidivism rate in the nation, with 70% of past offenders returning to
jail or prison within 24 months of their release. Taller San Jose has a unique opportunity to
impact the ability of this young adult population to achieve and maintain self- sufficiency by
expanding its ability to provide services to this vulnerable population.
Taller San Jose's highly focused, goal oriented program helps students develop into self- reliant
adults through three keyjob- training academies — office careers, medical careers and
construction —as well as support services such as mentoring, legal assistance, substance abuse
recovery support and job placement.
Last year, "faller San Jose placed 175 previously unemployed young people into employment at
an average salary of $11.13 per hour. On average, 72% of Taller San Jose graduates placed into
employment remain employed one year later. Furthermore, 92% of graduates with a criminal
background do notreoffend.
The YMCA building represents areal opportunity for SJH and Taller San Jose to positively
impact the community of Santa Ana in a new and significant way.
Our intent is to create a multi- purpose place of gathering for health, wellness and learning in the
YMCA building, with the following approximate breakdown of space allocation:
Medical Fitness - 17,000 square feet (45 %). This space will offer fitness facilities to the public
(through paid or scholarship subscriptions) for general fitness or recreation, with additional
specialized programs for those with chronic health conditions
Taller San Jose - 19,000 square feet, (50 %). This area will provide vocational training to local youth
Clinic - 2,000 square feet (5 %). This space will provide primary care and worksite wellness to the
community workers and residents
The team believes these services are complementary to the location. The YMCA building is
located on a major thoroughfare in a Civic area of Santa Ana, and is prominent in the way that it
stands majestically across from the old Court House. It seems fitting to house services that are
accessible by the public so that the building can be enjoyed by a wide cross section of the
25C -24
community. The functions that we are proposing to locate in the building will require little in the
way of zoning or occupancy change. In addition; the need in this community for these resources
is referenced above.
Building Rehabilitation: The team's intent is to restore the building physically to as close to its
original condition as possible (in accordance with the approval of agencies having jurisdiction),
with the following explicit inclusions or exclusions:
Exterior:
• In general, the team will endeavor to restore the exterior of the building to its original condition by
retaining all elements and finishes that are salvageable and/or replicable, and we plan to remove
and/or replace later incompatible changes and additions that detract from the character of the building
• Where possible, code required life - safety and functional upgrades will be designed to be compatible
with the character of the building, and will be constructed in order to be removable at a future time
without loss of historic integrity
• We wilt retain the elements of the exterior noted in the RFQ: Building configuration, building
massing, roof shape, primary and secondary exterior materials including original terracotta and
wrought iron, symmetrical design, original public entries and fenestration
• We anticipate the potential need to retain or demolish ancillary structures, and/or to make minor
additions to the footprint of the existing YMCA building in order to enhance the viability and
functionality of the project (subject to the Historic Rehabilitation guidelines)
• The team requests that the final determination of the project boundary be subject to negotiation with
the city in order to maximize the functionality of the building from our standpoint, and to mitigate the
lack of on -site parking space or permanently dedicated adjacent parking
Interior.
In general we plan to remove all non - structural elements of the building interior, with exception of the
items specifically noted in the RFP: One interior fireplace mantel, character of the circulation and
significant spaces and lobbies
Gymnasium: Due to the volume of the gym, we anticipate creating a mezzanine space (removable at
a future time) that can increase the functionality of the space, without detracting from the character
We anticipate making structural modifications to both improve seismic resistance and to allow for
circulation improvements, exiting, accessibility, systems distribution however, to the greatest extent
possible, these changes will be made to m nimize loss of character, or be reversed at a fixture time
25C -25
Design and
Economic Feasibility
(Per Section 7.1)
Conduct of Phase I
and Phase II (Per
Section 7.6)
Conduct structural
engineering and
earthquake safety
retrofit (Per Section
EXHIBIT "C"
DEVELOPER will conduct a design and economic feasibility
study relating to the Prject. DEVELOPER, The CITY and The
Developer and CITY's consultants will evaluate the design and economic
The CITY feasibility of the Project based on, among other things the
design and economic feasibility study undertaken by
DEVELOPER.
DEVELOPER will be permitted to undertake a Phase I
DEVELOPER Environmental Analysis and /or Phase II Environmental
analysis, each at Developer's sole cost and expense.
As part of the development of the Project, DEVELOPER will
DEVELOPER be required to undertake certain structural engineering and
earthquake safety retrofits.
DEVELOPER will conduct any California
Environmental Quality Act (CEQA) Review required by law and prepare any
Review (Per Section Developer Environmental Impact Reports required by law. CITY agrees
7 6) to work cooperatively with DEVELOPER during any CEQA
Review or the preparation of any Environmental Impact
25C -26
25C -27
The CITY will work cooperatively with DEVELOPER with
respect to (i) any approval requirements related to the
DEVELOPER'S construction contractor, architect, engineer,
historical rehabilitation team, surveyor or any other of
Developer's diligence or design professional, (Ii) any zoning,
conditional use permits, variance ; entitlements , insurance,
or construction bonds required by The CITY, (iii) any design
Permits and
Developer and
or other limitations on the Project, (Iv) guidelines and
Entitlements (Per
community assistance which are applicable to the
Section 7,5)
The CITY
rehabilitation or new construction (e.g., signage, setback,
build, shadow, specific uses, open space, urban design
features of buildings, etc.), (v) and all conditions precedent
to the issuance of any building permit, and any and all other
governmental permits, consents or authorizations required
from The CITY forthe development, construction, operation
or use of the Project. The CITY will promptly process any
approval of any of the foregoing.
DEVELOPER will meet and confer with the CITY's Historic
Preservation Planner. The CITY's Historic Preservation
Planner will cooperate and provide DEVELOPER with
Conduct Studies
reasonable requirements for the preservation of the historic
Regarding Historic
DEVELOPER and
external features of the building. DEVELOPER agrees to
Preservation (Per
The CITY
consider requests from the CITY's Historic Preservation
Section 7.2)
Planner to preserve the historic internal features of the
building. CITY agrees that DEVELOPER will only be required
to preserve the external historic features of the building.
The Project implementation schedule for the Project shall.
Project
include without limitation, a concept plan and detailed
Implementation
scope of development identifying all major activities and
and Scope of
DEVELOPER
required entitlements such as preliminary construction
Development (Per
drawings, and projected commencement and completion of
Section 7.3)
construction dates.
The Property and improvements thereon will be transferred
Cost of Property
DEVELOPER and
by the CITY to DEVELOPER at no cost to DEVELOPER in
and Improvements
the CITY
accordance with the terms of the Definitive Development
(Per Section 7,4)
Agreement.
25C -27
25C -28
The Project Budget will contain (i) details of each type of
expenditure and the applicable sources of funds; (11) funding
commitments to be obtained by DEVELOPER for
Project Budget (Per
DEVELOPER and
construction financing, permanent financing, and other
Section 7.4)
The CITY
financing from external sources to assist in financing the
Project, (Ili) evidence The CITY reasonably requests in order
for DEVELOPER to demonstrate that DEVELOPER has
sufficient resources to complete the Project.
Rehab Team (Per
DEVELOPER will be required to identify team with
Section 7:2)
DEVELOPER
experience in historic rehabilitation.
DEVELOPER and the CITY will work cooperativelyto estimate
the parking spaces required for the Project. The CITY will
provide DEVELOPER with options to satisfy the estimated
Parking (Per Section
DEVELOPER and
parking needs of the Project, and the CITY will implement
8.2)
The CITY
the option that Developer selects at no cost to the
Developer. DEVELOPER will not be required to conduct any
parking studies in connection with the Project.
As part of the "Healthy Santa Ana" initiative, The CITY seeks
to ensure that the developed Project will be available to
7DEVELOPER
both The CITY's and the County of Orange's employees as
well as the general public. Developer will present options for
Availability of
use of facility by government employees and the
Facility to Publensuring
general public. The CITY, depending upon the development
options and financial analyses of each option, may invest
funds in this project to encourage government employee
and public participation.
The DEVELOPER will conduct outreach to Santa Ana
Hiring Percentage
residents for hiring and employment purposes. Developer
of Santa Ana
DEVELOPER
will use reasonable efforts to model its outreach pursuant to
Residents
the Department of Housing and Urban Development Section
3 Program.
Time Frame for
DEVELOPER and
To be determined by the Parties and included as part of
Completion
The CITY
Development Agreement
Reimbursement
DEVELOPER and
DEVELOPER will pay for a portion of costs of The CITY's
Agreement
The CITY
consultant, to be determined by the Parties.
25C -28
Title Review (Per CITY will inform DEVELOPER of any timing or milestones
Section 7.5) The CITY required by the CITY in order to deliver clear title.
Sunshine Ordinance The CITY The CITY will assist DEVELOPER in complying with the
(Per Section 7.5) 1 1 requirements of the CITY's Sunshine Ordinance.
25C -29
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is made this 17`' day of September,
2014, by and between the City of Santa Ana, California, a municipal corporation organized as a
charter city ( "CITY "), St. Joseph Health System, a California nonprofit public benefit
corporation ( "SJIIS "), and Taller San Jose, a California nonprofit public benefit corporation
( "TSJ "). SJHS and TSJ are together referred to as ("DEVELOPER!'). CITY and DEVELOPER
are sometimes referred to herein as the "Parties" or individually as a "Party ".
RECITALS;
A. CITY and DEVELOPER are parties to an Exclusive Right to Negotiate Agreement, dated
September 12'h, 2014 (the "Negotiating Agreement "), pursuant to which CITY and
DEVELOPER have entered into discussions necessary to evaluate the Project and to
negotiate a Development Agreement, if any. Capitalized terms used but not defined in
this Agreement have the meaning assigned to them in the Negotiating Agreement.
B. The Parties desire to enter into this Agreement to establish the terms and conditions upon
which DEVELOPER will reimburse CITY for bona fide, actual costs paid and/or costs
accrued in connection with and directly related to the Project and the negotiation and execution
of the Development Agreement, if any, such as expenses for engineers, architects, financial
consultants, legal, planning and other consultants and contractors retained by the CITY
( "Eligible Expenses "). NOW THEREFORE, in consideration of the mutual covenants set
forth herein and the mutual benefits to be derived therefrom, the Parties agree as follows:
TERMS
1. Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis
upon which CITY and DEVELOPER have entered into this Agreement. CITY and
DEVELOPER each acknowledge the accuracy of the Recitals and agree that the Recitals
are incorporated into this Agreement as though fully set forth at length.
2. Reimbursement of Costs. DEVELOPER agrees to reimburse the CITY for Eligible
Expenses, up to a maximum of Forty- Thousand Dollars ($40,000.00), payable within
thirty (3 0) days after receipt by DEVELOPER of written documentation from CITY
evidencing such Eligible Expenses. If (a) CITY terminates the Negotiating Agreement
without cause or (b) DEVELOPER terminates the Negotiating Agreement for cause
pursuant to Section 11.3 of the Negotiating Agreement, CITY agrees that it shall refund
to DEVELOPER the amount of any Eligible Expenses that DEVELOPER has paid within
ten (10) days of such termination. DEVELOPER acknowledges and agrees that
expiration of the Negotiation Period as set forth in Section 12(a) of the Negotiating
Agreement shall not constitute without cause termination of the Negotiation Agreement
for purposes of this Section.
3. Assignability. This Agreement may not be assigned by any Party without the prior and
express written consent of the other Parties, which consent shall not be unreasonably
witlrl7eld, conditioned or delayed. Any attempted assignment of this Agreement not in
Exhibit 2
25C -30
compliance with the terms of this Agreement shall be null and void and shall confer no
rights or benefits upon the assignee.
4. No Prior Agreements and No Oral Modif cations. This Agreement represents the entire
understanding of CITY and DEVELOPER with respect to the subject matter hereof and
supersedes all other prior or contemporaneous written or oral agreements pertaining to
the subject matter of this Agreement. This Agreement may be modified, only in writing
signed by the authorized representatives of CITY and DEVELOPER.
S. Binding Upon Successors. This Agreement and each of its terms shall be binding upon
CITY and DEVELOPER and their respective officers, elected officials, employees,
agents, contractors, and permitted successors and assigns.
6, No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the
Parties. No person or entity has any rights or remedies under this Agreement.
7. Attorneys' Fees. In the event that any action or proceeding, including arbitration, is
commenced by either CITY or DEVELOPER against the other to establish the validity of
this Agreement or to enforce any one or more of its terms, the prevailing party in any
such action or proceeding shall be entitled to recover from the other, in addition to all
other legal and equitable remedies available to it, its actual attorneys' fees and costs of
litigation, including; without limitation, filing fees, service fees, deposition costs,
arbitration costs and expert witness fees, including actual costs and attorneys' fees on
appeal.
S. Jurisdiction and Venue. This Agreement is executed and is to be performed in Orange
County, California, and any action or proceeding brought relative to this Agreement shall
be heard in the appropriate court in the County of Orange, California. CITY and
DEVELOPER each consent to the personal jurisdiction of the court in any such action or
proceeding.
9. SSeverability. If any term or provision of this Agreement is found to be invalid or
unenforceable, CITY and DEVELOPER both agree that they would have executed this
Agreement notwithstanding the invalidity of such term or provision. The invalid term or
provision may be severed from the Agreement and the remainder of the Agreement may
be enforced in its entirety.
10. Headings. The headings of each Section of this Agreement are for the purposes of
convenience only and shall not be construed to either expand or limit the express terms
and language of each Section.
11. Representations of the Parties. Each person signing this Agreement on behalf of a Party
which is not a natural person hereby represents and warrants to the other Party that all
necessary legal prerequisites to that Party's execution of this Agreement have been
satisfied and that he or she has been authorized to sign this Agreement and bind the Party
on whose behalf he or she signs.
[Signatures on following page]
25C -31
IN WITNESS WHEREOF, this Agreement has been executed by the Parties to be
effective as of the Effective Date.
CITY OF SANTA ANA
City of Santa Ana, California
a municipal corporation
By:
MIGUEL PULIDO
Mayor
Attest:
By:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM
SONIA R. CARVALHO
City Atto ey
B _
Jose Sandoval
Chi to
City Attorney
St. Joseph Health System, a California
nonprofit public benefit corporation
By:
Annette Walker
Its: Executive Vice President, Strategic
Services
Taller San Jose, a California nonprofit
corporation
By:
Shawna Smith
Its: Executive Director & CEO
25C -32