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HomeMy WebLinkAbout25J - AGMT - 3RD AND BROADWAY DEVREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2017 TITLE: EXCLUSIVE NEGOTIATION AGREEMENT AND REIMBURSEMENT AGREEMENT WITH CARIBOU INDUSTRIES INC. FOR THE THIRD STREET AND BROADWAY DEVELOPMENT PROJECT (STRATEGIC PLAN NO. 3, SA) CITY MhNAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: R»I:T00211i ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO yl���llL�if1�:7 Authorize the City Manager and Clerk of the Council to enter into an Exclusive Negotiation Agreement (ENA) with the Reimbursement Agreement (Exhibit 3) for consideration to be executed with Caribou Industries Inc. for the Third and Broadway Development with the Proposed Scope of the Project (Exhibit 1), subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On September 16, 2014, the City Council directed the Planning and Building Agency to release a Request for Qualifications for the Third and Broadway Development Project. On September 18, 2014, the Planning and Building Agency issued a Request for Qualifications outlining several components desired by the City Council. Among the components of the new project, there was an expressed desire to see a hotel /hospitality component. Five proposals were received by staff, only one of which, the proposal presented by Caribou Industries Inc., included a hotel component. Subsequently, staff presented the proposals to the Development and Transportation Council Committee, recommending Oliver McMillan as the most qualified developer to develop the site. However, at a later meeting, the Development and Transportation Council Committee directed staff to contact all of the development firms who had submitted proposals and provide them a second opportunity to submit new proposals that would include a hotel component, even as a second phase of the project on the site or on a nearby property. Four of the original development firms resubmitted proposals. Caribou Industries Inc. included a hotel component. Of those four firms, the three other firms maintained their position that the hospitality market in Downtown Santa Ana did not sufficiently support financing and construction of a new hotel and did not include a hotel component in their new proposals. 25J -1 Exclusive Negotiation Agreement and Reimbursement Agreement with Caribou Industries Inc. for the Third and Broadway Development Project March 21, 2017 Page 2 Subsequently, staff identified the qualifying criteria for Caribou Industries Inc. to be selected as the developer for the Third and Broadway site. One of the qualifying criteria for the selected developer is the submittal of audited financial statements to assess the developer's ability to complete and deliver the proposed project on time and on budget. The submittal of the audited financial statements is an important component of the review process and as such included as an element to be completed within the Proposed Scope of the Project (Exhibit 1). In 2016, an Ad Hoc Committee was created to review and recommend actions, related to the Third and Broadway Development Project, including the terms of the ENA that the City and Caribou Industries Inc. will enter into. (See Exhibit 2). Staff recommends City Council approval of this item and all related exhibits. Per Council direction, staff will attempt to complete the items listed in the Proposed Scope of the Project and ENA process in 90 days. However, given the complexity of this item, staff may have a need to request a time extension at a later date. 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 for new development that will create new jobs and expand the City's tax base). FISCAL IMPACT There is no fiscal impact associated with this action. However, future items requiring fiscal impact approval will be brought forward for City Council consideration. Hassan Ha0ani, AltP Executive Director Planning & Building Agency SM:rb Rb \sm \reports \3rd & Broadway — RFCA 3 -21 -17 Exhibit: 1. Proposed Scope of the Project Exhibit: 2. Exclusive Negotiation Agreement Exhibit: 3. Reimbursement Agreement 25J -2 Exhibit 1 3rd Street and Broadway Project Proposed Scope of the Project 1. Developer is to submit audited financial statements to the City of Santa Ana. 2. Developer is to purchase the property at market value with the intention of demolishing the existing parking garage and building a mixed use residential /retail /office /hotel project. 3. The City shall impose a lien on the property for the market value purchase of said property. Said lien shall be maintained for no less than 25 years. 4. The City shall release the lien after 25 years and upon the developer's accomplishment of all performance requirements and terms of the loan as outlined in the DDA. 5. The developer shall be required to deposit a determined amount within five (5) days of opening an escrow. 6. The transfer of the title of the property shall only take place after certain City of Santa Ana conditions have been met by the developer. 7. The developer shall obtain all necessary entitlements at their own expense prior to transfer of property titles from the City to the developer. 8. The developer shall prepare a complete environmental document consistent with California Environmental Quality Act (CEQA) for the proposed project. 9. A minimum four (4) -star hotel component, consisting of no fewer than 60 rooms is a required component of the proposed project. The hotel may be built at the same time as the rest of the project or in a subsequent phase, as described by the developer with a justification for its phasing and timing. Developer must submit documentation to verify a commitment from a major hotel, development proforma for the hotel, and signed labor agreements as required but the City in order to meet the hotel component requirement for the project. 10. A hotel tax rebate incentive may be negotiated between the City and the hotel operator consistent with the City's Hotel Incentive Program. 11. The developer shall build the project paying prevailing wages and the hotel component shall employ unionized labor at prevailing wages for its operations. 12. The developer will not be required to replace the existing public parking. Therefore, no public funds shall be directed to the development project for the purpose of creation of public parking. 13. The City and the developer will review and resolve all existing parking obligations associated with the existing municipal parking structure. 14. The City shall convey property titles immediately prior to a previously scheduled and fully authorized demolition of the existing improvements on the property. 25J -3 15. The demolition of the existing improvements and subsequent construction of the new project shall take place consistent with agreed upon terms and timelines set forth in the DDA. 16. Any unauthorized delays by the developer at any agreed upon phase of construction shall be subject to penalties set forth in the DDA. 17. The new development project shall be designed by a highly credible design team to exemplify the City's commitment to excellent design and sustainability in Santa Ana. 18. The City shall be responsible for removing all City parking equipment prior to commencement of demolition. 19. Prior to issuance of final certificates of occupancy, general, standard, and specific conditions and obligations set forth for this project shall be met within the timelines outlined in the DDA. 20. Developer is required to provide Community Outreach with all stakeholders to hear and address concerns over parking and construction during and after construction 21. The developer shall provide a Parking Management Agreement. Part of that agreement will include provisions for the City to maintain and operate the parking structure until such time that the property must be prepared for demolition. 22. Developer shall reconstruct Sycamore Street between 3rd Street and 4th Street for all modes of transportation at the developer's expense. The reconstruction of Sycamore Street shall be performed according to all zoning, open space, and public right -of -way standards to the satisfaction of the Planning and Building and Public Works Agencies. 23. Existing street parking meter and parking activity must remain intact. 24. Developer shall improve the alley adjacent to the property according to specifications determined during the entitlement review process. 25. Developer shall remove the existing pedestrian bridges. 26. Developer shall provide ground floor, pedestrian- oriented commercial uses as will be detailed during the entitlement process. The developer shall meet specific performance milestones set forth in the DDA. 27. The developer shall provide a detailed construction schedule, staging, and management plan to be reviewed and approved by the City to eliminate or mitigate impacts to the surrounding businesses and the public during construction. 28. Developer shall be fully responsible for securing and leasing staging locations at the developer's expense to the satisfaction of the City. The construction staging location and equipment shall not impede day -to -day activities in surrounding areas. 29. The construction management and mitigation plan shall be discussed and analyzed as part of the environmental review process prior to final approvals. 25J -4 EXCLUSIVE NEGOTIATION AGREEMENT This Exclusive Negotiation Agreement ( "Agreement ") is dated , 2017, for reference purposes only, and is entered into by and among the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ( "City "), and CARIBOU INDUSTRIES, INC., a Nevada Corporation ( "Developer "), in order to provide a specified period of time to attempt to negotiate a disposition and development agreement ( "DDA "). City and Developer are sometimes referred to in this Agreement individually, as a "Party" and, collectively, as the "Parties." This Agreement is entered into by the Parties with reference to the following recited facts (each, a "Recital "): RECITALS WHEREAS, the intent of the Parties in entering into this Agreement is to establish a specific, limited period of time to negotiate regarding a future agreement among them governing the potential acquisition and development of certain real property, subject to mutually agreeable terms, conditions, covenants, restrictions and agreements to be negotiated and documented in a firture DDA; and WHEREAS, the property contemplated is located at 201 West Third Street, Santa Ana, California 92701 (APN 398 - 264 -13) ( "Property "); and WHEREAS, City owns the Property; and WHEREAS, the Property is more particularly described in the legal description attached to this Agreement as Exhibit "A" and incorporated into this Agreement by this reference; and WHEREAS, Developer proposes to develop a mixed use hotel and commercial /retail project on the Property ( "Project "); and WHEREAS, the Parties now agree to enter into this Agreement for the purpose of further planning and evaluating the feasibility of the proposed Project; and WHEREAS, the 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 on the Property and that such plans and other inforniation to be prepared during the course of this Agreement shall serve as the basis for entering into a DDA among City and Developer; and WHEREAS, City is willing to enter into a period of exclusive negotiations with Developer concerning Developer's potential development of the Project, subject to the terms and conditions of this Agreement. NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE PARTIES RELATING TO THE PROJECT AND THE COVENANTS AND PROMISES OF THE CITY AND THE DEVELOPER SET FORTH IN THIS AGREEMENT, THE CITY AND THE DEVELOPER AGREE AS FOLLOWS: Exhibit Z 25J -5 I . Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement, in their entirety, by this reference. 2. Term of Agreement. (a) The rights and duties of the City and the Developer established by this Agreement shall commence on the first date on which all of the following have occurred ( "Effective Date "): (1) execution of this Agreement by the authorized representative(s) of the Developer and delivery of such executed Agreement to the City, and (2) approval of this Agreement by the City's execution of this Agreement by their respective authorized representatives and delivery of such executed Agreement to the Developer. The City shall each deliver a fully executed counterpart original of this Agreement to the Developer, within ten (10) calendar days after the governing bodies of the City have approved this Agreement, and their authorized representatives have executed this Agreement. This Agreement shall continue in effect for the period of ninety (90) consecutive calendar days immediately following the Effective Date ( "Negotiation Period "), subject to the limitations of Sections 2(b). (b) The Negotiation Period may be extended upon the mutual written agreement of the City Manager and the Developer for no more than one (1) additional consecutive ninety (90) calendar day period. Notwithstanding the immediately preceding sentence or any other part of this Agreement, in no event shall the Negotiation Period exceed one hundred and eighty (180) consecutive calendar days from the Effective Date. (c) This Agreement shall automatically expire and be of no further force or effect at the end of the Negotiation Period (as may be extended pursuant to the terms of this Agreement), unless, prior to that time, the City and the Developer approve and execute a separate DDA acceptable to the two Parties, in their respective sole and absolute discretion, in which case this Agreement will terminate on the effective date of such DDA. 3. Obligations of Developer. During the Negotiation Period, the Developer shall proceed diligently and in good faith to develop and present to City staff for review, all of the following: (a) A complete development application, together with the payment of all applicable review fees for the Project on the Property that describes and depicts: (1) the location and placement of proposed buildings and (2) the architecture and elevations of the proposed buildings; (b) Proposed zoning change or changes to the City's General Plan, if any, necessary to accommodate the Project on the Property; (c) A written commitment from an agent of a recognized hotel chain which written commitment must reflect the exact class and quality of the hotel brand; A proposed time schedule and cost estimates for the development of the Project on the Property; (d) A proposed financing plan identifying financing sources for all private and public improvements proposed for the Project; and 25J -6 (e) A preliminary financial analysis demonstrating the costs and benefits to the City regarding all constriction, maintenance and operations of all proposed public improvements, the costs of additional or increased levels of public services and any new public revenues anticipated to be generated by the Project. 4. Negotiation of DDA. During the Negotiation Period, the Parties shall negotiate diligently and in good faith to negotiate a DDA among them. The Parties shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations. The Parties shall exercise reasonable efforts to complete discussions relating to the terms and conditions of a DDA and such other matters, as may be mutually acceptable to the Parties, in their respective sole discretion. The exact terms and conditions of a DDA, if any, shall be determined during the course of these negotiations. Nothing in this Agreement shall be interpreted or construed to be a representation or agreement by either the City or the Developer that a mutually acceptable DDA will be produced from negotiations under this Agreement. Nothing in this Agreement shall impose any obligation on either Party to agree to a definitive DDA in the future. Nothing in this Agreement shall be interpreted or construed to be a guaranty, warranty or representation that any proposed DDA that may be negotiated by City staff and the Developer will be approved by the governing bodies of the City. The Developer acknowledges and agrees that the City's considerations of any DDA is subject to the sole and absolute discretion of their City Council and all legally required public hearings, public meetings, notices, factual findings and other determinations required by law. 5. Restrictions Against Change in Ownership, Management and Control of Developer and Assignment of Agreement. (a) The qualifications and identity of the Developer and its 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 the Developer. During the Negotiation Period, no voluntary or involuntary successor -in- interest of the Developer shall acquire any rights or powers under this Agreement, except as provided in Section 5(c). (b) The Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in Control (as defined in Section 5(d)) of the Developer, as well as any and all changes in the interest or the degree of Control of the Developer by any such person, of which information the Developer or any of its shareholders, partners, members, directors, managers or officers are notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change, whether voluntary or involuntary, in ownership, management or Control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved by the City, prior to the time of such change, the City may terminate this Agreement, without liability to the Developer or any other person, by sending written notice of termination to the other Parties, referencing this Section 5(b). (c) Notwithstanding anything in this Agreement to the contrary, Developer may assign its rights under this Agreement to an Affiliate (as defined in Section 5(d)), on the condition that such Affiliate expressly assumes all of the obligations of the Developer under this 25J -7 Agreement in a writing reasonably satisfactory to the City and further provided that Developer shall, at all times, control any such Affiliate. (d) For the purposes of this Agreement, the term "Affiliate" means any person, directly or indirectly, controlling or controlled by or under common control with the Developer, whether by direct or indirect ownership of equity interests, by contract, or otherwise. For the purposes of this agreement, "Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether by ownership of equity interests, by contract, or otherwise. 6. Developer Obligations to Review Draft Agreements and Attend Meetings. (a) During the Negotiation Period, the Parties shall diligently review and comment on drafts of a DDA prepared by the City Attorney, and if the terms and conditions of such a DDA are agreed upon among the City staff and the Developer, Developer shall submit the DDA fully executed by the authorized representative(s) of the Developer to the City Manager for submission to City Council for review and approval or disapproval. Any future DDA shall consist of terms and conditions acceptable to the Developer and the City Council of the City, in their respective sole and absolute discretion. (b) During the Negotiation Period, the Developer shall also keep City staff advised on the progress of the Developer in performing its obligations tinder this Agreement, on a regular basis or as requested by City Staff including, without limitation, having one or more of the Developer's employees or consultants who are knowledgeable regarding this Agreement, the design and planning of the Project and the progress of negotiation of a DDA, such that such person(s) can meaningfully respond to inquiries from City and regarding the progress of the design and planning of the Project or the negotiation of a DDA, attend meetings with City Staff, as reasonably scheduled by City Staff during the Negotiation Period. 7. Developer to Pay All Costs and Expenses. All fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by the Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and /or design activities, drawings, specifications or other activity or matter relating to the Property or the Project or negotiation of a DDA that may be undertaken by the Developer during the Negotiation Period, pursuant to or in reliance upon this Agreement or in the Developer's discretion, regarding any matter relating to a DDA, the Property or the Project, shall be the sole responsibility of and undertaken at the sole cost and expense of the Developer and no such activity or matter shall be deemed to be undertaken for the benefit of, at the expense of or in reliance upon the City. The Developer shall also pay all fees, charges and costs, make all deposits and provide all bonds or other security associated with the submission to and processing by the City and all applications and other documents and information to be submitted to the City and by the Developer pursuant to this Agreement or otherwise associated with the Project. The City shall not be obligated to pay or reimburse any expenses, fees, charges or costs incurred by the Developer in pursuit of any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and /or design activities, drawings, specifications or other activity or matter relating to the Property or the Project or negotiation of a DDA that may be 25J -8 undertaken by the Developer during the Negotiation Period, whether or not this Agreement is, eventually, terminated or extended or a DDA is entered into among the Parties, in the future. 8. City Not To Negotiate With Others. (a) During the Negotiation Period, the City, and their respective staff shall not negotiate with any other person regarding the sale or development of the Property, except owners of or business tenants occupying property within the Project. The term "negotiate," as used in this Agreement, means and refers to engaging in any discussions with a person other than the Developer, regardless of how initiated, with respect to that person's development of the Property to the total or partial exclusion of the Developer from redeveloping the Property, without the Developer's written consent, subject to the provisions of Section 8(b) and further provided that they may receive and retain unsolicited offers regarding development of the Property, but shall not negotiate with the proponent of any such offer during the Negotiation Period. (b) Nothing in this Agreement shall limit, prevent, restrict or inhibit the City from providing any information in its possession or control that would customarily be furnished to persons requesting information from the City concerning their respective goals, matters of a similar nature relating to development plans or as required by law to be disclosed, upon request or otherwise. 9. Acknowledgments and Reservations. (a) The Parties agree that, if this Agreement expires or is terminated for any reason, or a future DDA is not approved and executed by the Parties, for any reason, none of the Parties shall be under any obligation, nor have any liability to each other or any other person regarding the sale or other disposition of the Property or the development of the Project or the Property. (b) The Developer acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the City, nor an acceptance by the City of any offer or proposal from the Developer for the City to convey any estate or interest in the Property to the Developer or for the City to provide any financial or other assistance to the Developer for development of the Property or execution of the Project. (c) The Developer acknowledges and agrees that the Developer has not acquired, nor will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal property from the City. (d) Certain development standards and design controls for the Project may be established among the Parties, but it is understood and agreed among the Parties that the Project and the development of the Property 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 acquiring the real estate and entitlements within the Project. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project or of the Project itself by the City. 25J -9 (e) The City reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of the Developer to purchase, develop and operate the Property and/or the Project. The Developer acknowledges that it may be requested to make certain financial disclosures to the City, their staff, legal counsel or other consultants, as part of the financial due diligence investigations of the City and relating to the potential sale of the Properties and development of the Project on the Property by the Developer and that any such disclosures may become public records. The City shall maintain the confidentiality of financial information of the Developer to the extent allowed by law, as determined by the City Attorney. Notwithstanding the foregoing, if the City receives a request for documents related to this Agreement or the Project pursuant to the California Public Records Act (Govt. Code Section 6254 et. seq) or similar statute, and the City determine that the City has responsive documents, the City shall provide Developer notice not less than three (3) days prior to releasing the responsive documents to the requesting party. During this three (3) day period Developer may seek a court order prohibiting the release of the documents. Any litigation or costs associated with protecting documents from disclosure shall be borne solely by Developer. (f) The City shall be deemed to be a Party to any agreement for the acquisition of, lease of or disposition of real or personal property, the provision of financial assistance to the Developer or development of the Project on the Property or elsewhere, until the terms and conditions of a complete future DDA are considered and approved by the City Council, in their respective sole and absolute discretion, following the conclusion of one or more duly noticed public hearings, as required by law. The Developer expressly acknowledges and agrees that the City will not be bound by any statement, promise or representation made by their respective staff or representatives during the course of negotiations of a future DDA and that the City shall only be legally bound upon the approval of a complete DDA by the City Council, in their respective sole and absolute discretion, following one or more duly noticed public hearings, as required by law. 10. Nondiscrimination. The Developer shall not discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in undertaking its obligations under this Agreement. 11. Limitation on Damages and Remedies. (a) THE PARTIES ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS AGREEMENT BY THE CITY. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE BREACH OF THIS AGREEMENT BY ANOTHER PARTY, THE PARTIES AGREE THAT A REASONABLE ESTIMATE OF THE DEVELOPER'S DAMAGES IN SUCH EVENT IS THIRTY THOUSAND DOLLARS ($30,000) (THE "LIQUIDATED DAMAGES AMOUNT "). THEREFORE, UPON THE BREACH OF THIS AGREEMENT BY THE CITY, THE BREACHING PARTY SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER AND THIS AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE 2 51 =10 DEVELOPER'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY THE CITY. Initials of Authorized Initials of Authorized Representative of City Representative of Developer (b) THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE CITY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF EITHER WERE TO BE LIABLE TO THE DEVELOPER FOR ANY MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, THE PARTIES AGREE THAT THE DEVELOPER'S SOLE AND EXCLUSIVE RIGHT AND REMEDY UPON THE BREACH OF THIS AGREEMENT BY THE CITY IS TO TERMINATE THIS AGREEMENT AND RECEIVE THE LIQUIDATED DAMAGES AMOUNT. (c) THE DEVELOPER ACKNOWLEDGES THAT IT IS AWARE OF THE MEANING AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. (d) CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS THE INTENTION OF THE DEVELOPER TO BE BOUND BY THE LIMITATION ON DAMAGES, RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 12, AND THE DEVELOPER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST THE CITY FOR MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF RELATED TO ANY BREACH OF THIS AGREEMENT, EXCEPT RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO THE DEVELOPER AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE DEVELOPER SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT WITH REGARD TO THE LIMITATIONS ON DAMAGES AND REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS SECTION 12. (e) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN THE EVENT OF A BREACH BY DEVELOPER, DEVELOPER SHALL NOT BE LIABLE OR RESPONSIBLE TO CITY FOR ANY LOST OR FOREGONE TAX 257=11 REVENUES, ECONOMIC OR COMMUNITY BENEFITS, FEES, CHARGES, OR ANY OTHER AMOUNT. THE PARTIES ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE CITY UPON THE BREACH OF THIS AGREEMENT BY THE DEVELOPER. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE CITY WOULD SUFFER UPON THE BREACH OF THIS AGREEMENT BY ANOTHER PARTY, THE PARTIES AGREE THAT A REASONABLE ESTIMATE OF THE CITY'S TOTAL DAMAGES IN SUCH EVENT IS THE LIQUIDATED DAMAGES AMOUNT. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY THE DEVELOPER. NOTWITHSTANDING THE FOREGOING, IF DEVELOPER'S BREACH IS A FAILURE TO MAINTAIN THE INITIAL OR ADDITIONAL DEPOSIT REQUIRED BY THIS AGREEMENT, IN ADDITION TO THE LIQUIDATED DAMAGES DEVELOPER SHALL REIMBURSE THE CITY FOR THE ACTUAL INCURRED STAFF TIME AND THIRD PARTY CONSULTANT TIME EXPENDED ON THE PROJECT PRIOR TO THE DATE OF TERMINATION. Initials of Authorized Representative of City 12. Default. Initials of Authorized Representative of Developer (a) Failure or delay by any 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 another Party 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 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 fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section 13(a) shall be automatically reduced to the number of days remaining in the Negotiation Period. Nothing in this subparagraph (a) shall prohibit Developer from extending the Negotiation Period pursuant to Section 2. (b) 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. (c) Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. (d) If a default of any Party remains uncured for more than fifteen (15) calendar days following receipt of written notice of such default, a "breach" of this Agreement 25J =l2 by the defaulting Party shall be deemed to have occurred. 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 and, in the case of a breach by the City, the Developer shall also be entitled to receive the Liquidated Damages Amount. 13. Compliance with Law. The Developer acknowledges that any future DDA, if approved by the City Council, will require the Developer to, among other things, carry out the development of the Project in conformity with all applicable laws, including all applicable building, planning and zoning laws, environmental laws, safety laws and federal and state labor and wage laws. 14. Press Releases. The Developer agrees to obtain the approval of the City Manager in function of any press releases Developer may propose relating to the lease or development of the Property or negotiation of a DDA with the City prior to publication. 15. Notice. All notices required under this Agreement shall be presented (A) in person, (B) by a reputable same -day or overnight delivery service, or (C) facsimile and confirmed by first class certified or registered United States Mail, with return receipt requested, to the address and /or fax number for the Party set forth in this Section. Notice shall be deemed confirmed by United States Mail effective the third (3rd) business day after deposit with the United States Postal Service. Notice by personal service or reputable same -day or overnight delivery service shall be effective upon delivery. Either Party may change its address for receipt of notices by notifying the other Parties in writing. Delivery of notices to courtesy copy recipients shall not be required for valid notice to a Party. TO DEVELOPER: Caribou Industries, Inc. Michael Harrah President 1103 N. Broadway Santa Ana, CA 92701 (T) (714) 543 -9484 (F) (714) 534 -9972 TO CITY: The City of Santa Ana Hassan Haghani Executive Director Planning and Building Agency 20 Civic Center Plaza (M -20) P.O. Box 1988 Santa Ana, California 92702 25JA 3 COPY TO: City Attorney 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714- 647 -6515 16. Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining 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, when such fees are considered necessary by the Developer. 17. Acceptance of Agreement by Developer. The Developer shall acknowledge its acceptance of this Agreement by delivering to the City three (3) original counterpart executed copies of this Agreement each signed by the authorized representative(s) of the Developer. 18. Counterpart Originals. This Agreement may be executed by the Parties in multiple counterpart originals, all of which together shall constitute a single agreement. 19. No Third -Party Beneficiaries. Nothing in this Agreement is intended to benefit any person or entity other than the Parties. 20. Governing Law. The Parties acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of Santa Ana, California. The Parties agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California, without application of such laws' conflicts of laws principles. 21. 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 a Party, unless made in writing and executed by the Parties. 22. Construction. Headings at the beginning of each section and sub - section of this Agreement are solely for the convenience of reference of the Parties 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 Party, but rather as if the Parties cooperated equally in preparing 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 a Party is required to take any action pursuant to the terms of this Agreement is not a business day of the City, the action shall be taken on the next succeeding business day of the City. 25J' =14 23. Attorneys' Fees. If a Party hereto files any action or brings any action or proceeding against another Party arising out of this Agreement, then the prevailing Party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of the City, salaries (or fees) and expenses of the lawyers employed by the City (allocated on an hourly basis) who may provide legal services in connection with the representation of the City in any such matter. 24. Enforced Delay. No party shall be deemed in default of its obligations under this Agreement where a delay or default is due to an act of God, natural disaster, accident, breakage or failure of equipment, enactment of conflicting federal or state laws or regulations, third -party litigation, administrative action, including strikes, lockouts or other labor disturbances or disputes of any character, interruption of services by suppliers thereof, unavailability of materials or labor, unforeseeable and severe economic conditions, rationing or restrictions on the use of utilities or public transportation whether due to energy shortages or other causes, war, civil disobedience, riot, or by any other severe and unforeseeable occurrence that is beyond the control of that party (collectively, "Enforced Delay "). Performance by a party of its obligations shall be excused during, and extended for a period of time equal to, the period (on a day- for -day basis) for which the cause of such Enforced Delay is in effect. [Signatures on following page] 25111 =15 IN WITNESS WHEREOF, the Parties have executed this Exclusive Negotiation Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. ATTEST: MARIA D. HUIZAR Clerk of the Council TO FORM: I� F.A11466 • City RECOMMENDED FOR APPROVAL: HASSAN HAGHANI Executive Director Planning and Building Agency CITY OF SANTA ANA GERARDO MOUET Acting City Manager DEVELOPER By: President Dated: By: Vice- President Dated: 26;x=16 EXHIBIT "A" TO NEGOTIATION AGREEMENT Property Legal Description All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82 -17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82- 051577 of Official Records of Orange County, California, bounded Southerly by the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and L.J. Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. EXHIBIT "A" 25J -17 25J -18 REIMBURSEMENT AGREEMENT This Reimbursement Agreement ( "Agreement') is dated 2017, for reference purposes only, and is entered into by and among the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ( "City "), and CARIBOU INDUSTRIES, INC., a Nevada Corporation ( "Developer "). City and Developer are sometimes referred to in this Agreement individually, as a "Party" and, collectively, as the "Parties." This Agreement is entered into by the Parties with reference to the following recited facts (each, a "Recital "): RECITALS A. City and Developer are parties to an Exclusive Negotiation Agreement, dated , 2017 (the "Negotiation Agreement "), pursuant to which City and Developer have entered into discussions necessary to evaluate the Project and to negotiate a DDA, if any. Capitalized terms used but not defined in this Agreement have the meaning assigned to them in the Negotiation 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 DDA, 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 Fifty- Thousand Dollars ($50,000.00), payable within thirty (30) days after receipt by Developer of written documentation from City evidencing such Eligible Expenses. 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 withheld, conditioned or delayed. Any attempted assignment of this Agreement not in 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 Modifications. 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 Exhibit 25J -19 subject matter of this Agreement. This Agreement may be modified, only in writing signed by the authorized representatives of City and Developer. 5. 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. If a Party hereto files any action or brings any action or proceeding against another Party arising out of this Agreement, then the prevailing Party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of the City, salaries (or fees) and expenses of the lawyers employed by the City (allocated on an hourly basis) who may provide legal services in connection with the representation of the City in any such matter. 8. 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. Severability. 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] 25J -20 IN WITNESS WHEREOF, the Parties have executed this Reimbursement Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. ATTEST: MARIA D. HUIZAR Clerk of the Council rr City TO FORM: RECOMMENDED FOR APPROVAL: HASSAN HAGHANI Executive Director Planning and Building Agency CITY OF SANTA ANA GERARDO MOUET Acting City Manager DEVELOPER By: President Dated: By: Vice - President Dated: c 25J -21 25J -22