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HomeMy WebLinkAbout2016-07-12 - AGENDA REPORTS - SCV CMTE ON AGING (2)0 Agenda Item: 7 CITY OF SANTA CLARITA Q) AGENDA REPORT CONSENT CALENDAR i, CITY MANAGER APPROVAL: 1 j=� DATE: July 12, 2016 SUBJECT: SANTA CLARITA VALLEY COMMITTEE ON AGING FUNDING AGREEMENT DEPARTMENT: Recreation, Community Services, Arts, and Open Space PRESENTER: Richard E. Gould RECOMMENDED ACTION City Council: 1. Approve a Funding Agreement and Use Restriction and Option Agreement with the Santa Clarita Valley Committee on Aging to award $3,000,000 to be used solely and exclusively for the construction of the new Senior Center facility. 2. Authorize the continued appropriation of the $3,000,000 in Contractual Services Account 19000-5161.001 from Fiscal Year 2015-16 to Fiscal Year 2016-17. 3. Authorize the City Manager, or designee, to execute all documents, subject to City Attorney approval. BACKGROUND On November 25, 2014, the City Council committed and appropriated $3,000,000 toward the construction of a new Santa Clarita Valley Senior Center (Center) pending the execution of an agreement between the City of Santa Clarita (City) and the Santa Clarita Valley Committee on Aging (SCVCOA). The Santa Clarita Valley Committee on Aging commissioned a comprehensive needs assessment in 2013. The needs assessment concluded that the existing Center's facilities do not meet either the current or future needs for senior services in the Santa Clarita Valley and that a new site and facility are required. The SCVCOA approached both the City and the County of Los Angeles (County) with a request of $3,000,000 from each agency to assist with the construction of a new senior center facility. Page 1 PacketPg. 82 The County also committed to provide the SCVCOA with a $3,000,000 contribution towards the new facility. The proposed new Senior Center facility is to be located on the 2.5 acre property located in the City at the southeast corner of Golden Valley Road and Five Knolls Drive (Los Angeles County Assessor's Parcel Nos. 2805-001-032, 2805-001-023, 2805-001-030, and 2805-001-034). It is anticipated the Senior Center shall commence construction of the new facility by March 2017, and the construction is expected to be completed by January 2019. Per action taken by the City Council on November 25, 2014, the agreements between the City and the SCVCOA would return to City Council for approval and no funds would be distributed until the agreements are fully executed. The Funding Agreement identifies how the funds will be disbursed to the Santa Clarita Valley Committee on Aging and the restriction on the use of the property and the new Senior Center. ALTERNATIVE ACTION Other action as determined by the City Council. FISCAL IMPACT Continue the appropriation of $3,000,000 in Contractual Services Account 19000-5161.001 from Fiscal Year 2015-16 to Fiscal Year 2016-17. ATTACHMENTS Funding Agreement with Exhbit A - Use Restriction and Option Agreement 0 Page 2 Packet Pg. 83 Contract No. FUNDING AGREEMENT 7.a THIS FUNDING AGREEMENT, hereinafter referred to as "Agreement" dated for purposes of identification only this day of 2016, made and entered into by and between the CITY OF SANTA CLARITA, a municipal corporation, hereinafter referred to as "City," and Santa Clarita Valley Committee on Aging (SCVCOA), also known as the Santa Clarita Valley Senior Center, hereinafter referred to as "Center." WITNESSETH WHEREAS, the City has in the past appropriated certain funds to the Center to assist with a variety of recreation, health, and wellness programs for seniors in the City; and WHEREAS, the Center's provision of services to seniors in the Santa Clarita Valley is mutually beneficial to both the City and the Center; and WHEREAS, the City has determined that it is in the best interest of the people that community based not-for-profit organizations or other public service organizations occasionally be provided funds to assist them in providing a service; and WHEREAS, the Center represents that although it is capable of providing services to seniors in the City, the demand for use of the current Center location is greater than the facility can accommodate; and WHEREAS, the Center endeavors to construct a new facility to assist in the provision of services to seniors. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS, AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: 1. The City agrees to award to the Center and the Center agrees to accept from the City, the City Council approved award of Three Million Dollars ($3,000,000). The Center agrees to spend the funds solely and exclusively for the construction of a new Senior Center facility (the "New Facility") on the 2.5 acre property located in the City of Santa Clarita at the southeast corner of Golden Valley Road and Five Knolls Drive, and known as a 2.5 acre portion of Los Angeles County Assessor's Parcel Nos. 2805-001-032, 2805-001-023, 2805-001-030, and 2805-001-034 (the "Property"), as approved by the City Council, and for no other purpose. 2. The Center agrees that services to be provided under this Agreement must be adequate to ensure the maximum utilization of the Center's facilities and services by Santa Clarita seniors, and that the use of the Center's facilities and services shall be granted to all seniors residing in the Santa Clarita Valley. Page I 1 Packet Pg. 84 7.a 3. The Center shall commence construction of the New Facility by March 31, 2017. three (3) months prior to the start of construction, the Center shall provide a report to the City outlining how the City's funds were leveraged with other funding sources to cover the complete cost of construction, estimated by the Center to be $12,000,000. The report shall be submitted in a narrative format and shall contain the following: A) A listing of all funding partners assembled to gather the funds necessary for the entire construction cost of the New Facility. B) Private donations under $25,000 per individual or corporation do not need to be listed separately, but a total of the amount of private donations must be provided. 4. Construction of the New Facility shall be completed by January 31, 2019. The City will pay the Center in two installments as follows: A) The first installment of $2,000,000 will be made upon execution of this Agreement, with the purpose that the funds be utilized for construction of the New Facility. B) The final installment of $1,000,000 will be made upon major completion of construction demonstrated by the City's final signing of the building combo framing inspection on the New Facility. 5. The Center agrees that the City may, at any time, audit any and all of the Center's books, documents, or records relating to this Agreement or the financing and construction of the New Facility. 6. This Agreement does not obligate the City to provide any other costs or services to the Center. 7. Construction of the New Facility is subject to State prevailing wages requirements of the California Labor Code including without limitation, Section 1770, 1771.5, 1773, 1777.5, and 1776, and the City's California Department of Industrial Relations (DIR) approved Labor Compliance Program (LCP). The Center agrees to specifically indemnify, defend and hold the Indemnitees (defined in Section 9 below) harmless from and against any and all Claims (defined in Section 9 below) directly or indirectly arising from or associated with any failures to comply with State (and if applicable, federal) prevailing wage requirements. All covered work classifications required in connection with construction of the New Facility will be subject to prevailing wage provisions. These wages are set forth in the General Prevailing Wage Rates for this project, available from the California Department of Industrial Relations' Internet web site at http://www.dir.ca.gov/dlsr/PWD. The provisions of this Section shall survive the termination or expiration of this Agreement. Page 12 Packet Pg. 85 7.a 8. The Center agrees that the Property and the New Facility shall be used exclusively for the purpose of providing recreational, social, educational, and related services to or for the benefit to seniors including office and administrative services related thereto collectively, "Senior Services", except as may be agreed upon in writing by the City. If the New Facility or the Property or any portion thereof, is ever used for any purpose other than the provision of Senior Services to seniors (absent the advance written consent of the City) and such default remains uncured for a period of thirty (30) days following the City's delivery of written notice of default to the Center, the City shall have the right to acquire ownership of the Property and the New Facility in fee simple pursuant to the exercise of its rights under the Use Restriction and Option Agreement described below. The restrictions on use of the Property and the New Facility described in this Section, and the City's rights to acquire the Property and New Facility shall be set forth in a Use Restriction and Option Agreement substantially in the form attached hereto as Exhibit A. The Use Restriction and Option Agreement shall be recorded in the Official Records of Los Angeles County promptly following execution of this Agreement. 9. The City and its respective elected and appointed boards, officials, officers, agents, employees, and volunteers (individually and collectively, "Indemnitees') shall have no liability to the Center or any other person for, and the Center shall indemnify, defend, protect, and hold harmless Indemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs, and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively, "Claims"), which Indemnitees may suffer or incur or to which Indemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of or allegedly caused by the Center's performance of or failure to perform any services under this Agreement, or by the negligent or willful acts or omissions of the Center, its agents, officers, directors, or employees, committed in performing any of the services under this Agreement. If any action or proceeding is brought against Indemnitees by reason of any of the matters against which the Center has agreed to indemnify Indemnitees as provided above, the Center, upon notice from the City, shall defend Indemnitees at its expense by counsel acceptable to the City, such acceptance not to be unreasonably withheld. Indemnitees need not have first paid for any of the matters to which Indemnitees are entitled to indemnification in order to be so indemnified. The limits of the insurance required to be maintained by the Center in this Agreement shall not limit the liability of the Center hereunder. The provisions of this section shall survive the expiration or earlier termination of this Agreement. The provisions of this section do not apply to claims occurring as a result of the City's active negligence or willful acts of omission. 10. Without limiting the City's right to indemnification, it is agreed that the Center shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage (if applicable) and consistent with standards in such agencies as follows: Page 13 Packet Pg. 86 7.a A. General Liability and Property Damage Insurance: The Center agrees to procure and maintain general liability and property damage insurance at its sole expense to protect against loss from liability imposed by law for damages on account of bodily injury, including death therefrom, suffered or alleged to be suffered by any person or persons whomsoever, resulting directly from any act or activities of the Center, its subconsultants, or any person acting for the Center or under its control or direction, and also to protect against loss from liability imposed by law for damages to any property of any person caused directly or indirectly by or from acts or activities of the Center, or its subconsultants, or any person acting for the Center, or under its control or direction. Such public liability and property damage insurance shall also provide for and protect the City against incurring any legal cost in defending claims for alleged loss. Such general liability and property damage insurance shall be maintained in the following minimum limits: A combined single -limit policy with coverage limits in the amount of $1,000,000 per occurrence will be considered equivalent to the required minimum limits. B. Automotive Insurance: The Center shall procure and maintain public liability and property damage insurance coverage for automotive equipment with coverage limits of not less than $1,000,000 combined single limit. If the Center does not own automobiles, the Center shall provide a waiver releasing City from all liability resulting from the Center's use of personal vehicles on project. C. Worker's Compensation Insurance: The Center shall procure and maintain Worker's Compensation Insurance in the amount of $1,000,000 per occurrence or as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Center and the City against any loss, claim, or damage arising from any injuries or occupational diseases happening to any worker employed by the Center in the course of carrying out the Agreement. D. General Insurance Requirements: a) All insurance shall be primary insurance and shall name the City of Santa Clarita as an additional insured with exception to Worker's Compensation. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under the policy if not named as an additional insured, and an additional insured shall not be held liable for any premium or expense of any nature on the policy or any extension thereof solely because they are an additional insured thereon. b) If the operation under this Agreement results in an increased or decreased risk in the opinion of the City's Risk Administrator, then the Center agrees that the minimum limits hereinabove designated shall be changed accordingly upon written request by the Risk Administrator. C) The Center agrees that provisions of this paragraph as to maintenance of insurance shall not be construed as limiting in any way the extent to which the Center may be held responsible for the payment of damages to persons or property resulting from the Center's activities, the activities of its subconsultants, or the activities of any person or persons for which the Center is otherwise responsible. d) A Certificate of Insurance and an additional insured endorsement (for general and automobile liability) evidencing the above insurance coverage with a company acceptable to the City's Risk Administrator shall be submitted to the City prior to execution of this Agreement on behalf of the City. Page 1 4 Packet Pg. 87 7.a e) The terms of the insurance policy or policies issued to provide the above insurance coverage shall provide that said insurance may not be amended or canceled by the carrier, for nonpayment of premiums otherwise, without 30 days prior written notice of amendment or cancellation to City. In the event the said insurance is canceled, the Center shall, prior to the cancellation date, submit new evidence of insurance in the amounts heretofore established. I) All required insurance must be in effect prior to awarding the grant, and it or a successor policy must be in effect for the duration of the Agreement. Maintenance of proper insurance coverage is a material element of the Agreement, and the failure to maintain and renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract. If Center, at any time during the term of this Agreement, should fail to secure or maintain any insurance required under this Agreement, the City shall be permitted to obtain such insurance in the Center's name and shall be compensated by the Center for the cost of the insurance premiums. g) Should the Center, for any reason, fail to obtain and maintain the insurance required by this Agreement, the City may obtain coverage at the Center's expense and deduct the cost of such insurance from payments due to the Center under this Agreement or terminate. In the alternative, should the Center fail to meet any of the insurance requirements under this Agreement, the City may cancel the Agreement immediately with no penalty. h) Should the Center's insurance required by this Agreement be cancelled at any point prior to expiration of the policy, the Center must notify the City within 24 hours of receipt of notice of cancellation. Furthermore, the Center must obtain replacement coverage that meets all contractual requirements within 10 days of the prior insurer's issuance of notice of cancellation. The Center must ensure that there is no lapse in coverage. 11. Nothing herein contained shall be construed as limiting in any way the extent to which the Center may be held responsible for payments of damages to persons or property resulting from the Center's or its subcontractor's performance of the work covered under this Agreement. 12. This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the services by the Center for the City and contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, either orally or otherwise, have been made by any party, which is not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the party to be charged. 13. The period of this Agreement shall extend from , 2016 and expire on January 31, 2019. However, this Agreement may be extended year to year after its initial expiration, based upon the same terms and conditions, and upon request by the Center and approval by the City Manager. Page 15 Packet Pg. 88 7.a 14. This Agreement may be suspended or terminated at any time by either party upon giving thirty (30) days written notice. City may immediately suspend or terminate this Agreement verbally (followed by written confirmation) or in writing with or without cause. In such event, the Center will be compensated for all services rendered and all necessarily incurred costs performed in good faith in accordance with the terms of this Agreement that have not been previously reimbursed, to the date of said suspension or termination to the extent that funds are available. 15. The Center agrees that funds shall be disbursed or encumbered no later than January 31, 2019. Any and all funds remaining as of January 31, 2019, which have not been disbursed or encumbered, shall be returned to the City unless a written extension is requested of the City. 16. The Center agrees to indemnify and hold the City, its officers, agents and employees harmless from any and all claims of the United States of America for reimbursements of funds or any portion thereof due to the improper use of funds. 17. Pursuant to Senate Bill 542, chaptered in 1999, the Employment Development Department (EDD) of the State of California requires that a W-9 Form be filed by all vendors for all contracts entered into with the City. The Center agrees to complete all required forms necessary to comply with EDD regulations. This requirement became effective January 1, 2001. 18. Notices and communication concerning this Agreement shall be sent to the following addresses: City Center City of Santa Clarita SCV Committee on Aging 23920 Valencia Boulevard, Suite 120 22900 Market Street Santa Clarita, CA 91355 Santa Clarita, CA 91321 Attn: Director of Recreation, Community Attn: Executive Director Services, Arts, and Open Space 19. The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signatures hereto. In the event the Center fails to set forth a date of execution opposite the name(s) of the Center's signature, the Center hereby authorizes the City, by and through its representative, to insert the date of execution by the Center's signator(s) as the date said Agreement, as executed by the Center, is received by the City. [SIGNATURES ON NEXT PAGE] Page 16 Packet Pg. 89 7.a IN WITNESS WHEREOF, the parties hereto have caused this Funding Agreement to be executed on the day and year first written above. For Center: SANTA CLARITA VALLEY COMMITTEE ON AGING, A California nonprofit public benefit corporation (Name and Title) Date: By: Adam H. Mindle, Attorney Date: For City: By: KENNETH W. STRIPLIN, CITY MANAGER Date: Attest: City Clerk Date: APPROVED AS TO FORM: JOSEPH M. MONTES, CITY ATTORNEY By: City Attorney Date: Page 1 7 Packet Pg. 90 EXHIBIT A Recording requested by, and when recorded return to: The City of Santa Clarita 23920 Valencia Boulevard, Suite 120 Santa Clarita, California 91355 Attention: City Clerk EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE §§6103, 27383 Space Above This Line For Recorder's Use 7.a m v USE RESTRICTION AND OPTION AGREEMENT THIS USE RESTRICTION AND OPTION AGREEMENT (this "Agreement") is entered into effective as of , 2016 ("Effective Date"), by and between the City of Santa Clarita, a municipal corporation (the "City") and the Santa Clarita Valley Committee on Aging Corporation, a California nonprofit public benefit corporation, also known as the Santa Clarita Valley Senior Center (herein referred to as "Center"). City and Center are referred to herein individually as a "Party" and collectively as the "Parties." WHEREAS, pursuant to that certain unrecorded Agreement dated as of 2016, and executed by and between the Parties (the "Funding Agreement"), the City has agreed to provide to Center upon the terms and conditions set forth in the Funding Agreement, the amount of Three Million Dollars ($3,000,000) (the "Funding Commitment") to assist Center to construct a senior center facility (the "Facility") on property owned by Center located in the City at Street, known as Los Angeles County Assessor's Parcel No. and more particularly described in Exhibit A-1 attached hereto and incorporated herein (the "Property"); and WHEREAS, the Funding Agreement provides that Center shall use the Facility and the Property exclusively for the purpose of providing recreational, social, educational, and related services to or for the benefit to seniors including office and administrative services related thereto (collectively, "Senior Services"), except as may be agreed upon in writing by City, and that such restrictions on use shall be set forth in an instrument recorded in the Official Records of Los Angeles County ("Official Records"); and WHEREAS, the Funding Agreement provides that the City shall have an option to acquire the Facility and the Property if the Facility or the Property is ever used for any purpose other than for the provision of Senior Services absent the advance written consent of City and such default continues for a period of thirty (30) days following City's delivery of written notice of default to Center. Page 1 Packet Pg. 91 7.a NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Restrictions on Use. After the construction of the Facility and the Facility is open to the public (the "Opening Date"), Center covenants and agrees for itself and its successors in interest, that the Property and the Facility shall be used primarily for the purpose of providing Senior Services (as defined above) unless and to the extent that City provides advance written approval for another use. The restrictions on use of the Property and the Facility set forth in this Agreement shall automatically expire and be without further force or effect on the twentieth (201') anniversary of the Opening Date ("Termination Date"). For all purposes under this Agreement, the Property and the Facility shall be deemed to be used primarily for the provision of Senior Services if the Senior Services are provided at the Property for a minimum of 25 hours per week, subject to closures due to events of force majeure, holidays officially observed by the State of California, construction and/or renovation of the Facility. 2. Covenants Run with the Land. Center hereby subjects its interest in the Property to the covenants and restrictions set forth in this Agreement until the Termination Date. Subject to the terms of this Agreement, Center and the City hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land, and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors w in interest, transferees, and assigns of Center and City, regardless of any sale, assignment, conveyance, transfer, lease or rental of the Property or the Facility, or any part thereof or interest therein. Any successor -in -interest to Center, including without limitation any purchaser, o transferee or lessee of the Property shall be subject to all of the restrictions and obligations 0 imposed hereby. Each and every contract, deed, ground lease or other instrument affecting or a conveying the Property or any part thereof, shall conclusively be held to have been executed, R delivered and accepted subject to the covenants, restrictions, and obligations set forth herein, o_ regardless of whether such covenants, restrictions, and obligations are set forth in such contract, deed, ground lease or other instrument. Center agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property in favor of City. 3. Grant of Option. Center hereby grants to City, for the Option Term and upon the terms and conditions set forth in this Agreement, an exclusive and irrevocable right (the "Option") to acquire fee title to the Property, together with all improvements located thereon and interests appurtenant thereto. 4. Term of Option. The term of the Option ("Option Term") shall commence on the Effective Date, and shall continue in effect until the Termination Date. The Parties each acknowledge and agree that Center is granting the Option to City in connection with a commercial transaction and that City has paid fair consideration therefor pursuant to the Funding Agreement. 5. Exercise of Option. City shall have the right to exercise the Option if for any reason, absent the advance written consent of City, the Property and the Facility are not used primarily for the provision of Senior Services. The Option shall be exercisable by City by written notice to Page 2 Packet Pg. 92 7.a Center in accordance with Section 12.1 (each, "Exercise Notice"), under either of the following circumstances: (a) the Center dissolves, files for bankruptcy, or otherwise discontinues operations and a replacement operator does not take over operations of the Facility primarily for the provision of Senior Services, or (b) the Facility is not open and operating primarily for the provision of Senior Services. Notwithstanding anything to the contrary in this Agreement, any Exercise Notice shall be automatically revoked and without force or effect if the Facility is open and operating primarily for the provision of Senior Services within thirty (30) days following City's delivery of an Exercise Notice to Center ("Cure Period"). Upon the exercise of the Option after the expiration of the Cure Period, Center shall be obligated to convey the Property and the Facility to City, and City shall be obligated to acquire the Property and the Facility from Center in accordance with and subject to the terms set forth in this Agreement. 6. Option Fee. The Parties each acknowledge and agree that City's provision of funds to Center pursuant to the Funding Agreement includes consideration for the Option, and therefore, City is not obligated to pay an additional Option fee. m 7. Purchase Price. The purchase price for the Property together with the improvements located thereon and the interests appurtenant thereto ("Purchase Price") shall be equal to the fair market value thereof, as determined by an appraisal reasonably acceptable to City and Center (which appraisal shall appraise the Property based on its highest and best use, but E w including the remaining life of the Restriction on Use provided for in section 1), minus an amount equal to the amount of the Funding Commitment. City shall pay the cost of any appraisal commissioned pursuant to this Section. o 8. Escrow and Closing. 8.1 Escrow. Within five (5) business days after City's exercise of the Option in accordance with Section 5 City will open escrow ("Escrow") with atitle company selected by City ("Escrow Agent" or "Title Company"). 8.2 Closing and Closing Date. The purchase and sale of the Property shall occur, and Escrow shall close ("Closing") within 30 days after the expiration of the Cure Period, or such other date prior to the expiration of the Option Term as agreed in writing by the Parties (the "Closing Date"). 8.3 Delivery of Deed and Possession. At least three (3) business days prior to the Closing Date, Center shall execute and deliver to Escrow Agent a grant deed for the Property using the Title Company's standard form of grant deed. Upon the Closing, the grant deed shall be recorded in the Official Records, and Center shall deliver to City exclusive possession of the Property, free and clear of all leases, tenancies, encumbrances, liens and title exceptions other than those approved by City. 8.4 Deposit of Funds. On or before the Closing Date, City will deliver to Escrow Agent any portion of the Purchase Price (in immediately available funds) that remains unpaid and City's share of charges pursuant to Sections 8.6 and 8.7. On or before the Closing Date, Center will deliver to Escrow Agent, Center's share of charges pursuant to Sections 8.6 and Page 3 Packet Pg. 93 7.a 8_7 or if applicable, shall instruct the Escrow Agent to deduct such charges from any net funds distributable to Center at Closing. 8.5 Supplemental Escrow Instructions. Escrow Agent shall close Escrow in accordance with supplemental escrow instructions mutually acceptable to Center and City, which instructions shall be consistent with this Agreement. 8.6 Closing Costs. Center and City shall each pay fifty percent (50%) of all escrow charges, recording fees, any transfer taxes, any documentary transfer taxes, and premiums for City's Title Policy (as defined in Section 9 below). City shall pay the cost of any survey required in connection with the issuance of the Title Policy. 8.7 Prorations. All real estate taxes, assessments and utility charges relating to the Property shall be prorated between Center and City as of the Closing Date. 9. Title. City will obtain a preliminary title report ("Preliminary Report") from Title Company, and will review the Preliminary Report and title matters. By not later than 20 days prior to the Closing Date, City shall provide written notice to Center specifying which, if any, Y title exceptions affecting the Property that City approves (the "Permitted Exceptions"). Title w Company's commitment to issue to City a CLTA (or if City elects, an ALTA) owner's policy of w title insurance in form and amount reasonably acceptable to City, insuring City's fee interest in the Property subject only to the Permitted Exceptions ("Title Policy") shall be a condition to Closing; provided, however, Center shall have no obligation to cure or correct any item in the o Preliminary Report or any other aspect of the Property disapproved by City. Notwithstanding 0 the foregoing, if Center has requested that the City subordinate this covenant to construction financing and City, in is reasonable discretion has agreed to such subordination, Center shall R remove any monetary liens at its cost in connection with the Close of Escrow. o 10. Feasibilitv Investigations. Prior to the Closing, City shall have the right to enter onto the Property (at reasonable times upon reasonable prior notice) to conduct any inspections and tests that City deems necessary, including, without limitation, Phase 1 and Phase 2 evaluations, soils tests, surveys, engineering studies, environmental studies, and other evaluations as City deems necessary in City's discretion and at City's expense. 11. Remedies. Upon the occurrence of a default by either Party hereunder, the non - defaulting Party shall provide written notice and an opportunity to cure such default. If the default has not been cured within ten (10) days, or if a cure has not been commenced and thereafter diligently pursued to completion where such cure cannot be effectuated within ten (10) days, then the non -defaulting Party may pursue remedies as provided for herein. Each Party shall have all remedies available to it under this Agreement or under law or equity, including, but not limited to the following, and each Party may, at its election, exercise one or more of the following remedies: (a) Seek specific performance to enforce the terms of this Agreement, including without limitation the restrictions on use of the Property and the Facility as set forth herein; and Page 4 Packet Pg. 94 7.a (b) Pursue any and all other remedies available under this Agreement or under law or equity to enforce the terms of this Agreement. The rights and remedies of the Parties hereunder are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same or any other default by the other Party. Notwithstanding anything to the contrary set forth herein, a Party's right to recover damages in the event of a default shall be limited to actual damages. 12. Miscellaneous. 12.1 Notices. Any notice or communication required hereunder between Center and City ("Notice") must be in writing, and may be given either personally, by registered or U certified mail (return receipt requested), or by Federal Express or other similar courier ° r - promising overnight delivery. If personally delivered, a Notice shall be deemed to have been rj given when delivered to the party to whom it is addressed. If given by registered or certified mail, such Notice shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom Notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such Notice, properly Y addressed, with postage prepaid, is deposited in the United States mail. If given by Federal w Express or similar courier, a Notice shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written Notice to the other party hereto, designate any other address in o substitution of the address to which such Notice shall be given. Such Notices shall be given to S the parties at their respective addresses set forth below: City: Center: City of Santa Clarita SCV Committee on Aging 23920 Valencia Blvd., Suite 120 22900 Market Street Santa Clarita, CA 91355 Santa Clarita, CA 91321 Attn: Director of Recreation, Community Attn: Executive Director Services, Arts, and Open Space 12.2 Termination. This Agreement and the restrictions on use of the Property and the Facility set forth in this Agreement shall automatically expire and be without further force or effect on the earlier of (i) the Termination Date, or (ii) the date City closes the purchase of the Property in accordance with Section 8 after the delivery of an Exercise Notice in accordance with Section 5. Upon the expiration of the Option and Termination Date, City shall deliver to Center a quitclaim deed to evidence the expiration of the Option Term and the termination of this Agreement and to release this Agreement of record. City shall deliver to Center such quitclaim deed within thirty (30) days after City's receipt of Center's written request therefor. 12.3 Binding Agreement. This Agreement supersedes all prior and contemporaneous discussions, agreements and understandings between Center and City with respect to the subject matter of this Agreement, and together with the Funding Agreement, constitutes the entire Page 5 Packet Pg. 95 7.a agreement between Center and City with respect to the subject matter hereof and thereof, as applicable. 12.4 Amendments. This Agreement may be amended or modified only by a written instrument executed by Center and City. 12.5 No Assignment by City. Neither this Agreement nor any interest herein maybe assigned by City without the prior written consent of Center (which consent may be withheld in Center's sole discretion). Upon any Closing of the Option in accordance with this Agreement, City shall have the right to direct Center to convey title to the Property to City's designated assignee. City will give Center written notice of any such assignment. 12.6 Governing Law; Venue. This Agreement shall be governed and construed in U accordance with the laws of the State of California, without reference to its choice of law rules. ° The exclusive venue for any disputes or legal actions shall be the Superior Court of California in rj and for the County of Los Angeles or the Federal District Court for the Central District of the State of California. 12.7 Waivers. No waiver of any provision of this Agreement or any breach of this Agreement shall be effective unless such waiver is in writing and signed by the waiving party, and any such waiver shall not be deemed a waiver of any other provision of this Agreement or any other or subsequent breach of this Agreement. 12.8 Successors and Assigns. Subject to Section 12.5 above, this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and assigns. Each reference herein to a specifically named Party shall mean a reference to such Party and to such Party's successors and assigns. 12.9 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. 12.10 Construction. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for Center and City, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. 12.11 No Joint Venture. Center and City hereby renounce the existence of any form of agency relationship, joint venture or partnership between Center and City and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Center. 12.12 Survival of Terms. Any indemnity provided for herein, and any other provision of this Agreement which, by its terms, is to be performed after the Closing, shall survive the Page 6 Packet Pg. 96 7.a Closing until full performance thereof. The representations, warranties, covenants, terms and conditions of this Agreement shall also survive the Closing. 12.13 Time. Time is of the essence of this Agreement and of the performance of all the terms, covenants and conditions contained in this Agreement. 12.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one agreement. 12.15 Citv Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise. 12.16 Recordation. This Agreement shall be recorded by City in the Official Records of N Los Angeles County within ten (10) days following the Effective Date. m v m 12.17 No Brokers. Each Party represents and warrants that it has not had any dealings with any real estate broker, agent, or finder that is entitled to a commission, fee, or other c compensation in connection with this Agreement. E SIGNATURES ONFOLLOWING PAGE. Page 7 Packet Pg. 97 IN WITNESS WHEREOF, the Parties have executed this Use Restriction and Option Agreement as of the Effective Date. For Center: SANTA CLARITA VALLEY COMMITTEE ON AGING, a California nonprofit public benefit corporation By: (Name and Title) Date: By: Adam H. Mindle, Attorney Date: For City: By: KENNETH W. STRIPLIN, CITY MANAGER Date: Attest: City Clerk Date: APPROVED AS TO FORM: JOSEPH M. MONTES, CITY ATTORNEY By: City Attorney Date: 7.a Page 8 Packet Pg. 98 Exhibit A-1 PROPERTY (Attach legal description.) Legal description is forthcoming Page 9 7.a Packet Pg. 99