AGENDA
Garden Grove City
Council
Tuesday, October 24,
2023
6:30 PM
Community Meeting
Center 11300 Stanford
Avenue Garden Grove
California 92840
Steve Jones
Mayor
George S. Brietigam
Mayor Pro Tem - District 1
John R. O'Neill
Council Member - District 2
Cindy Tran
Council Member - District 3
Joe DoVinh
Council Member - District 4
Stephanie Klopfenstein
Council Member - District 5
Kim B. Nguyen-Penaloza
Council Member - District 6
Meeting Assistance: Any person requiring auxiliary aids and services, due to a disability, to address the City Council, should contact the City Clerk's Office 72 hours prior to the meeting to arrange for accommodations. Phone: (714) 741-5040.
Agenda Item Descriptions
: Are intended to give a brief, general description of the item. The City Council may take legislative action deemed appropriate with respect to the item and is not limited to the recommended action indicated in staff reports or the agenda.
Documents/Writings
: Any revised or additional documents/writings related to an item on the agenda distributed to all or a majority of the Council Members within 72 hours of a meeting, are made available for public inspection at the same time (1) in the City Clerk's Office at 11222 Acacia Parkway, Garden Grove, CA 92840, during normal business hours; (2) on the City's website as an attachment to the City Council meeting agenda; and (3) at the Council Chamber at the time of the meeting.
Public Comments
: Members of the public who attend the meeting in-person and would like to address the City Council are requested to complete a pink speaker card indicating their name and address, and identifying the subject matter they wish to address. This card should be given to the City Clerk before the meeting begins. General comments are made during "Oral Communications" and should be limited to matters under consideration and/or what the City Council has jurisdiction over.
Persons wishing to address the City Council regarding a Public Hearing matter will be called to the podium at the time the matter is being considered.
Manner of Addressing the City Council
: After being called by the Mayor, you may approach the podium, it is requested that you state your name for the record, and proceed to address the City Council. All remarks and questions should be addressed to the City Council as a whole and not to individual Council Members or staff members. Any person making impertinent, slanderous, or profane remarks or who becomes boisterous while addressing the City Council shall be called to order by the Mayor.If such conduct continues, the Mayor may order the person barred from addressing the City Council any further during that meeting.
Time Limitation
: When any group of persons wishes to address the City Council on the same subject matter, the Mayor may request a spokesperson be chosen to represent the group, so as to
GARDEN GROVE
avoid unnecessary repetition.At the City Council's discretion, a limit on the total amount of time for public comments during Oral Communications and/or a further limit on the time allotted to each speaker during Oral Communications may be set.
PLEASE SILENCE YOUR CELL PHONES DURING THE MEETING.
AGENDA
COUNCIL MEMBER O'NEILL, COUNCIL MEMBER TRAN, COUNCIL
MEMBER DOVINH, COUNCIL MEMBER KLOPFENSTEIN, COUNCIL
MEMBER K. NGUYEN-PENALOZA, MAYOR PRO TEM BRIETIGAM, MAYOR JONES
INVOCATION
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF
AMERICA
1. PRESENTATIONS
1.a. Community Spotlight in recognition of employees celebrating 25 plus years of service with the City of Garden Grove.
1.b. Garden Grove's Be Well OC Program update.
1.c. Orange County Grand Jury membership drive update.
2. ORAL COMMUNICATIONS (to be held simultaneously with other legislative bodies)
RECESS
CONDUCT OTHER LEGISLATIVE BODIES' BUSINESS
RECONVENE
3. CONSENT ITEMS
(Consent Items will be acted on simultaneously with one motion unless separate discussion and/or action is requested by a Council Member .)
3.a. Authorization for modifications to the 2022 Promissory Notes with Cottage Industries. ( Joint Action Item with the Housing Authority )
3.b. Adoption of a Resolution authorizing submittal of applications for grant opportunities offered by the California Department of Resources Recycling and Recovery (CalRecycle). ( Action Item)
3.c. Adoption of a Resolution approving signing authority for a grant agreement with the California Board of State and Community Corrections. ( Action Item)
3.d. Approval of the First Amendment to Willowick Golf Course Management Agreement to extend the term for three years. (Action Item)
3.e. Approval of Amendment No. 4 to agreements with Scott Fazekas & Associates, Inc., CSG Consultants, Inc., and The Code Group, Inc., for on-call plan review and Building Contractual Services on an “as-needed” basis. (Cost: $250,000 each amendment) ( Action Item)
3.f. Award a contract to Ocean Blue Environmental Services, Inc., for the removal of hazardous and biological materials.
(Cost: $190,000) ( Action Item)
3.g. Authorize the issuance of a purchase order to National Auto Fleet Group for one (1) new Van for the Custodial Section in the Public Works Department. (Cost: $54,648.33) ( Action Item)
3.h. Authorize the issuance of a purchase order to National Auto Fleet Group for one (1) new Public Works Department Truck.
(Cost: $196,175.35) ( Action Item)
3.i. Receive and file minutes from the meeting held on October 10, 2023. (Action Item)
3.j. Receive and file warrants. ( Action Item)
3.k. Approval to waive full reading of ordinances listed. ( Action Item)
4. ITEMS FOR CONSIDERATION
4.a. Approval to participate in the 2023-2024 Office of Traffic Safety (OTS) Selective Traffic Enforcement Program (STEP). (Grant Amount: $370,000)( Action Item)
4.b. Receive and file the 2023 Garden Grove Police Department Military Equipment Annual Report, and Introduce the first reading of an Ordinance approving the Military Equipment Use Policy and rescinding Ordinance No. 2935
Entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GARDEN GROVE ADOPTING THE GARDEN GROVE POLICE
DEPARTMENT MILITARY EQUIPMENT USE POLICY PURSUANT
TO GOVERNMENT CODE 7071 AND RESCINDING ORDINANCE
NO. 2935 (Action Item)
4.c. Authorize the appropriation of the Encampment Grant Resolution Funding Round 3 Lookback (ERF-3-L), and authorize the City Manager to execute a Memorandum of Understanding with the County of Orange. (Cost: $1,921,500) ( Action Item)
4.d. Authorize the issuance of a purchase order to PB Loader for one (1) new Police Department Command Post.
(Cost: $1,199,660.40) ( Action Item)
5. ORDINANCES PRESENTED FOR SECOND READING AND ADOPTION
5.a. Second reading and adoption of Ordinance No. 2943
Entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GARDEN GROVE APPROVING ZONING MAP AMENDMENT NO.
A-037-2023 TO REVISE THE CITY’S OFFICIAL ZONING MAP TO
IMPLEMENT THE UPDATES TO THE ADOPTED 2021-2029
HOUSING ELEMENT AND TO CLARIFY THE SITES INTENDED
TO BE INCLUDED IN THE INTERNATIONAL WEST MIXED USE
OVERLAY AND THE INDUSTRIAL/RESIDENTIAL MIXED USE 1
OVERLAY PURSUANT TO ORDINANCE NO. 2925. ( Action item)
6. MATTERS FROM THE MAYOR, CITY COUNCIL MEMBERS, AND CITY
MANAGER
7. ADJOURNMENT
The next Regular City Council Meeting is scheduled for Tuesday, November 14, 2023, at 5:30 p.m. in the Community Meeting Center, 11300 Stanford Avenue, Garden Grove, California 92840.
Agenda Item - 3.a.
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To: Lisa L. Kim From: Ursula Luna-Reynosa
Dept.: City Manager/Director Dept.: Economic Development & Housing Authority
Subject: Authorization for modifications to
the 2022 Promissory Notes with
Cottage Industries. ( Joint Action
Item with the Housing Authority )
Date: 10/24/2023
OBJECTIVE
For the City Council and Housing Authority to authorize the City Manager/Executive Director to make modifications to the Promissory Notes with Cottage Industries for former leased properties acquired by Cottage Industries in 2022.
BACKGROUND
As part of the Cottage Industries project, the developer, Cottage Industries, LLC, had leased the following five vacant properties from the City and the Housing Authority in 2016.
APN Street Address Ownership
090-172-15 12951 7th Street Housing Authority
090-174-06 12942 8th Street Housing Authority
090-174-07 11421 Garden Grove Boulevard Housing Authority 090-172-19 11461 Garden Grove Boulevard City of Garden Grove 090-172-31 11301 Garden Grove Boulevard City of Garden Grove
The leases were terms of 15 years (through 2031) and granted Cottage Industries a right of first refusal to purchase the properties at fair market value. In December 2022, Cottage Industries exercised the right to acquire the five properties for their appraised values for a combined total of $1,230,000. Cottage Industries paid a down payment of $25,000 and executed promissory notes for the balance pursuant to the attached Purchase and Sale Agreement, Promissory Notes and Deeds of Trusts. The promissory notes require the payment of interest for a term of one year with a balloon payment on or before December 29, 2023.
DISCUSSION
Cottage Industries has requested amendments to the promissory notes and deeds of trusts to extend the maturity date of the loans for six years to December 30, 2029. Cottage Industries further requests that the notes be written separately for each property with their respective deed of trust. Cottage Industries is current with their interest payments and will continue making interest payments for the extended term of the loans.
Cottage Industries has made significant progress in moving their project forward in light of challenges brought on by the COVID-19 pandemic, supply chain disruptions, utility installation lead time delays, financial markets and economy. The first phase of Cottage Industries known as the Farm Block is comprised of an adaptive reuse approach and tenant improvements to seven (7) buildings. The developer has secured signed leases with several artisans and eateries including:
Smoke Queen Barbeque, Blue Scoop Creamery, and Eco Now (sustainable lifestyle) . The Farm
Smoke Queen Barbeque, Blue Scoop Creamery, and Eco Now (sustainable lifestyle) . The Farm Block will also incorporate retail pop-ups that will tenant the SheShed with active discussions in process with a local bake shop. A key element of the Cottage Industries project is to create a sense of community at the Farm Block for locals, families and visitors to enjoy an active community garden, amphitheater, kids play area, outdoor seating area and family friendly communal areas. Incorporation of local community art will provide for Cottage Industries to implement complementary mural walls throughout the Farm Block and an oversized adirondack chair.
The level of creative placemaking and imagination for the project will cultivate an image for Garden Grove that is currently aspirational. Having the new police facility and Civic Center campus anchored on one end by Main Street and SteelCraft and Cottage Industries on the other will create a true community living room for Garden Grove residents and visitors. Cottage Industries is comprised of multiple parcels; some adjacent to each other and some separated by privately owned parcels. The project is being developed in phases with some parcels completely encumbered by parking. As a result, a request for City support in extending the developer’s repayment obligations and separating the promissory notes and deeds of trust will enable each parcel to be underwritten separately and support additional debt. Impacts of the COVID-19 pandemic, current economy, delayed revenue stream, and the anticipation of making payments on the notes has proven to be challenging. The request for the extension of the notes will assist the developer in continuing to invest in a high caliber project at the current creative and high standards.
FINANCIAL IMPACT
Approval of the six-year extensions to the Promissory Notes will have limited impact to the City and Housing Authority. The future principal and interest payments will be deposited into their respective funds when received.
RECOMMENDATION
It is recommended that the City Council/Housing Authority:
Approve the amendments to the Promissory Notes secured by Deeds of Trust; and
Authorize the City Manager/Executive Director to approve any pertinent documents on behalf of the City/Housing Authority, and authorize the City Manager/Executive Director to approve modifications as appropriate.
ATTACHMENTS:
Description Upload
Date Type File Name
Attachment 1 -
2022 Purchase
and Sale
Agreement
10/16/2023 Backup
Material2022_COTTAGES_PURCHASE_AND_SALE_AGREEMENT_LEASED_PROPERTIES_FINAL_EXEC.pdf Attachment 2 -
Developer
Correspondence
10/16/2023 Backup
MaterialCOTTAGE_LOAN_LTR_100223.pdf
•
•
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (the “Agreement”) is dated for reference purposes only as of the 21st day of December, 2022 (the “Agreement Date”), and is being entered into by and among the CITY OF GARDEN GROVE, a California municipal corporation (“City”), the GARDEN GROVE HOUSING AUTHORITY, a public agency (“ Authority”), and COTTAGE INDUSTRIES, LLC, a California limited liability company ( “Buyer”). City, Authority, and Buyer are sometimes hereinafter individually referred to as a “ Party” and collectively as the “Parties.”
R E C I T A L S:
The following recitals are a substantive part of this Agreement:
A. City is the owner in fee of the real properties located at 11301 G arden Grove Boulevard and 11461 Garden Grove Boulevard in the City of Garden Grove, County of Orange, State of California, that are more particularly described in Exhibit “A” attached hereto and made a part hereof (collectively, the “City Parcels”).
B. On or about May 10, 2016, City and LAB Holding, LLC (“ L AB”), entered into a Lease Agreement pursuant to which City leased the City Parcels to LAB for a period of fifteen (15) years (the “ City Parcels Lease”). The commencement date of the City Parcels Lease was December 9, 2016, and, therefore, in the absence of this Agreement, the termination/expiration date of the City Parcels Lease would be December 9, 2031. Section 30 of the City Parcels Lease granted to LAB a right of first refusal to purchase City’s leased fee interest in the City Parcels for fair market value, as determined by an MAI appraisal.
C. Authority is the owner in fee of the real properties located at 12951 7 th Street, 11421
Garden Grove Boulevard, and 12942 8 th Street in the City of Garden Grove, County of Orange, State of California, that are more particularly described in Exhibit “B” attached hereto and made a part hereof (collectively, the “Authority Parcels”).
D. On or about May 10, 2016, A uthority and City entered into a Lease Agreement pursuant to which Authority leased the Authority Parcels to City for a period of twenty (20) years (the “Authority Parcels Lease”). Section 6 of the Authority Parcels Lease granted to City a right to provide a right of refusal for acquisition of the Authority Parcels to a third party subject to an acquisition price at fair market value, as determined by an MAI appraisal.
E. On or about May 10, 2016, City and LAB entered into a S ublease Agreement pursuant to which City subleased the Authority Parcels to LAB for a period of fifteen (15) years (the “Authority Parcels Sublease”). The commencement date of the Authority Parcels Sublease was December 9, 2016, and, therefore, in the absence of this Agreement, the termination/expiration date of the Authority Parcels lease would be December 9, 2031. Pursuant to the authority granted to City in Section 6 of the Authority Parcels Lease, Section 30 of the Authority P arcels Sublease granted to LAB a right of first refusal to purchase the Authority Parcels for fair market value, as determined by an MAI appraisal.
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F. On or about May 31, 2016, City, LAB, and Buyer entered into an Assignment and Assumption Agreement pursuant to which, among other things, (1) LAB transferred and assigned to Buyer and Buyer assumed from LAB LAB’s leasehold interest in the City Parcels, LAB’s subleasehold interest in the Authority Parcels, and all of LAB’s rights and obligations set forth in the City Parcels Lease and the Authority Parcels Sublease, including without limitation the right of first refusal to acquire the City Parcels and Authority Parcels for fair market value, and (2) City acknowledged and consented to such transfer, assignment, and assumption.
G. City and Authority desire to dispose of their respective interests in the City Parcels and the Authority Parcels and Buyer desires to acquire such interests and obtain fee title to said parcels, pursuant to and in accordance with the above -referenced right of first refusal provisions in the City Parcels Lease, Authority Parcels Lease, and Authority Parcels Sublease. In accordance with those provisions, Buyer has commissioned an appraisal from the firm of BBG Real Estate Services, Steve Crooks MAI, to determine the fair market value of City’s and Authority’s interests in the City Parcels and Authority Parcels. The Parties agree that, based on the completed appraisal, the collective fair market value of the five (5) parcels comprising the City Parcels and Authority Parcels is the sum of One Million Two Hundred Thirty Thousand Dollars ($1,230,000).
A G R E E M E N T:
Based upon the foregoing Recitals, which are incorporated into this Agreement by this reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City, Authority, and Buyer hereby agree as follows:
1. Property C onveyance. Subject to and in accordance with the terms and conditions hereinafter set forth, City agrees to cause the conveyance of the City Parcels to Buyer, Authority and City agree to cause the conveyance of the Authority Parcels to Buyer, and Buyer agrees to accept the conveyance of said parcels from City and Authority. Upon the Close of Escrow (defined below) for said conveyances, the City Parcels Lease, the Authority Parcels Lease, and the Authority Parcels Sublease shall be deemed to have been terminated and of no further force or effect, and none of the Parties shall have any further rights or obligations thereunder.
2. Escrow Holder/Title Company, Close of Escrow and Outside Closing Date.
2.1 Escrow Holder/Title Company; Escrow Instructions : Promptly after the execution of this Agreement, the Parties shall open escrow at First American Title Insurance Co. c/o Maureen Collier, Senior Escrow Officer (hereinafter, “Escrow Holder” and/or “ Title Company”) located at 1 First American Way, Santa Ana, CA 92707, and the Parties shall promptly deliver to Escrow Holder a fully executed copy of this Agreement. This Agreement shall serve as the escrow instructions for conveyance of the City Parcels and Authority Parcels. In addition, Each Party agrees to execute such standard supplemental escrow instructions consistent with this Agreement as may be required by Escrow Holder in order to consummate the transactions contemplated by this Agreement; provided, however, in the event of a conflict between the terms of this Agreement and the terms of such standard supplemental instructions, the terms of this Agreement shall control.
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2.2 Close of Escrow: The “Close of Escrow” is and shall be defined as the date that grant deeds for the City Parcels and the Authority Parcels in favor of Buyer are recorded in the Official Records of the Orange County Recorder ’s Office and the Title Company shall have committed to issue the Title Policy (defined in Section 5) to Buyer.
2.3 Outside C los ing Date : The Close of Escrow shall occur on or before December 29, 2022, which hereinafter is and shall be defined as the “Outside Closing Date.”
3. Purchase Price. Bu yer’s Purchase Price for the City Parcels shall be the sum of Four Hundred Forty- Five Thousand One Hundred Fifty- Three Thousand Dollars and Twenty - Eight Cents ($445,153.28) (the “City Parcels Purchase Price ”) and Buyer’s Purchase Price for the Authority Parcels shall be the sum of Seven Hundred Eighty- Four Thousand Eight Hundred Forty-Six Dollars and Seventy- Two Cents ($784,846.72) ( the “ Authority P arcels Purchase Price”), which amounts the Parties agree, based on the appraisal referred to in Recital G, represent the fair market value amounts for City’s and Authority’s respective interests in said parcels.
Buyer shall pay the City Parcels Purchase Price as f ollows: (i) Buyer shall pay Twelve Thousand Five Hundred Dollars ($12,500) of the City Parcels Purchase Price in cash at the Close of Escrow (the “City Parcels Purchase Price D own Payment”); and (ii) Buyer shall pay the balance of the City Parcels Purchase Price (Four Hundred Thirty- Two Thousand Six Hundred Fifty-Three Dollars and Twenty-Eight Cents ($432,653,28)) in accordance with the terms set forth in the City Parcels Promissory Note, the form of which is set forth in Exhibit “C” attached hereto (the “City Parcels Promissory Note”), which payment obligation is to be secured by a deed of trust to be recorded against the City Parcels at the Close of Escrow in the form set forth in Exhibit “D” attached hereto (the “City Parcels Deed of Trust ”). As set forth in the City Parcels Promissory Note, the term of said note shall be one (1) year at four percent (4 %) simple interest payable in equal monthly interest- only payments (prorated for partial months as set forth in the City Parcels Promissory Note), with a balloon payment at the end of the term of said note. Buyer may prepay the principal balance at any time without penalty.
Buyer shall pay the Auth
ority Parcels Purchase Price as follows: (i) Buyer shall pay Twelve Thousand Five Hundred Dollars ($12,500) of the Authority Parcels Purchase Price in cash at the Close of Escrow (the “Authority Parcels Purchase Price Down Payment”); and (ii) Buyer shall pay the balance of the Authority Parcels Purchase Price (Seven Hundred Seventy- Two Thousand Three Hundred Forty- Six Dollars ($772,346.72)) in accordance with the terms set forth in the Authority Parcels Promissory Note, the form of which is set forth in Exhibit “E” attached hereto (the “Authority Parcels Promissory Note”), which payment obligation is to be secured by a deed of trust to be recorded against the Authority Parcels at the Close of Escrow in the form set forth in Exhibit “ F” attached hereto (the “Authority Parcels Deed of Trust ”). As set forth in the Authority Parcels Promissory Note, the term of said note shall be one (1) year at four percent (4%) simple interest payable in equal monthly interest-only payments (prorated for partial months as set forth in the Authority Parcels Promissory Note), with a balloon payment at the end of the term of said note. Buyer may prepay the principal balance at any time without penalty.
4. Delivery of Funds and Documents and Possession on the Close of Escrow.
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4.1 At the Close of Escrow, City shall cause to be delivered to Buyer a duly executed Grant Deed in the form attached as Exhibit “G” (the “City Parcels Grant Deed ”) conveying to Buyer all of City’s interest in the City Parcels, subject only to the “Permitted Title Exceptions” referred to in Section 5.1 of this Agreement. At the Close of Escrow, Authority shall cause to be delivered to Buyer a duly executed Grant Deed in the form attached as Exhibit “ H” (the “Authority Parcels Grant Deed ”) conveying to Buyer all of Authority’s interest in the Authority Parcels, subject only to the “Permitted Title Exceptions” referred to in Section 5.1 of this Agreement.
4.2 At the Close of Escrow, City shall cause the Title Company to issue to B
uyer an ALTA Standard Owner’s Policy of title insurance insuring that title to the City Parcels is vested in Buyer free and clear of all liens and encumbrances other than the Permitted Title Exceptions (as defined in Section 5.1) (to the extent the Permitted Title Exceptions apply to the City Parcels), and with coverage in the amount of the City Parcels Purchase Price . At the Close of Escrow, Authority shall cause the Title Company to issue to Buyer an ALTA Standard Owner’s Policy of title insurance insuring that title to the Authority Parcels is vested in Buyer free and clear of all liens and encumbrances other than the Permitted Title Exceptions (as defined in Section 5.1) (to the extent the Permitted Title Exceptions apply to the Authority Parcels), and with coverage in the amount of the Authority Parcels Purchase Price. Said title policy or policies is/are collectively referred to herein as the “Title Policy .” Except as stated in the two preceding sentences, neither City nor Authority shall have any obligation of any kind in connection with the condition of title or issuance of the Title Policy or in connection with the issuance of any endorsements that may be requested by Buyer.
4.3 At the Close of Escrow, Buyer shall deposit with Escrow Holder the City Parcels Purchase Price Down Payment and Authority Parcels Purchase Price Down Payment (i.e., the total sum of Twenty-Five Thousand Dollars ($25,000)) in immediately available funds.
4.4 At the Close of Escrow, Buyer shall cause to be delivered to City the duly executed City Parcels Promissory Note and City Parcels Deed of Trust.
4.5 At the Close of Escrow, Buyer shall cause to be delivered to Authority the duly executed Authority Parcels Promissory Note and Authority Parcels Deed of Trust.
4.6 At the Close of Escrow, Buyer shall be entitled to possession of the City Parcels and the Authority Parcels subject only to the Permitted Title Exceptions.
4.7 As stated in Section 1 of this Agreement, upon the Close of Escrow, the City Parcels Lease, the Authority Parcels Lease, and the A uthority Parcels Sublease shall be deemed to have been terminated and of no further force or effect, and none of the Parties shall have any further rights or obligations thereunder.
5. Title, Title Insurance.
5.1 Prior to the Agreement Date, the Title Company has issued its Commitment for Title Insurance (Commitment No. NCS -1159070-SA1, dated December 6, 2022) for the City Parcels and Authority Parcels (the “Title Commitment ”). At the Close of Escrow, City and Authority covenant to cause the Title Company to issue the Title Policy in favor of Buyer showing
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Buyer’s fee simple title subject only to the exceptions to title listed or referred to in the Title Commitment, excepting only that Authority shall be responsible to cause the Title Company to delete or remove the exception to title referred to in Paragraph 22 of Part II of Schedule B of the Title Commitment (the “Permitted Title Exceptions”). In addition, Buyer accepts any exceptions to title that may have been created by Buyer’s occupancy of the City Parcels and Authority Parcels prior to the Close of Escrow pursuant to the City Parcels Lease and the Authority Parcels Sublease, including without limitation any mechanic’s liens or similar encumbrances arising out of any work performed on any of said parcels by or under the authority of Buyer, and any such additional title exceptions shall be deemed to constitute Permitted Title Exceptions within the meaning of this Agreement. Alternatively, and if for any reason Authority is unable to cause the Title Company to remove the exception to title referred to in Paragraph 22 of Part II of Schedule B of the Title Commitment at the Close of Escrow, Buyer may elect to proceed with the Close of Escrow, in which case Authority shall be responsible for causing said title exception to be removed of record as soon as possible after the Close of Escrow, Authority shall ensure that the monetary lien reflected in said title exception does not jeopardize or impair Buyer’s ability to obtain financing or refinancing for the Cottage Industries project, and Authority shall indemnify and defend Buyer from and against any and all claims, liabilities, and losses arising out of such lien remaining of record after the Close of Escrow, which covenant s, notwithstanding any other provision set forth in this Agreement, shall survive the Close of Escrow and continue in effect until said title exception/lien is permanently removed of record.
5.2 City shall pay the portion of the cost of the Title Policy to be furnished for the City Parcels and Authority shall pay the portion of the cost of the Title Policy for the Authority Parcels in the amount of the City Parcels Purchase Price and Authority Parcels Purchase Price, respectively. Buyer shall pay for any additional coverag e and for any non- standard title policy endorsements that may be requested by Buyer.
6. Deposit of Documents and Funds in Escrow .
City, Authority, and Buyer , as
applicable, hereby covenant and agree to deliver to Escrow Holder at least one (1) business day prior to the Close of Escrow the following instruments, documents, and funds, the delivery of each of which shall be a condition of the Close of Escrow:
6.1 City a
nd Authority each shall deliver (with respect to the City Parcels and Authority Parcels, respectively):
6.1.1 The Grant Deed duly executed by City or Authority, as applicable;
6.1.2 A Withholding Exemption Certificate Form 593 as contemplated by California Revenue and Taxation Code§18662 (the “ Withholding Affidavit”) duly executed by City or Authority, as applicable;
6.1.3 A Certification of Non -Foreign Status in accordance with Internal Revenue Code Section 1445 duly executed by City or Authority, as applicable; and
6.1.4 Such funds, if any, as are required to pay for costs and expenses payable by City or Authority hereunder , subject to the understanding that, upon Buyer’s deposit of the City Parcels Purchase Price Down Payment and Authority Parcels Purchase Price Down
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Payment into Escrow, Escrow Holder shall be authorized and is directed to apply such funds to pay any costs and expenses that are the responsibility of City and Authority hereunder , as applicable.
6.2 Buyer shall deliver:
6.2.1 The City Parcels Purchase Price Down Payment and the Authority Parcels Purchase Price Down Payment ( i.e., the total sum of Twenty- Five Thousand Dollars ($25,000));
6.2.2 The City Parcels Promissory Note duly executed by Buyer;
6.2.3 The City Parcels Deed of Trust duly executed by Buyer;
6.2.4 The Authority Parcels Promissory Note duly executed by Buyer;
6.2.5 The Authority Parcels Deed of Trust duly executed by Buyer;
6.2.6 Such proof of Buyer’s authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue the Title Policy; and
6.2.7 Such additional funds as are required to pay for costs and expenses payable by Buyer hereunder.
7. Authorization to Record Documents and Disburse Funds. Escrow Holder is hereby authorized to record the documents and disburse the funds (including w ithout limitation the remaining balances of the City Parcels Purchase Price Down Payment and Authority Parcels Purchase Price Down Payment remaining after City’s and Authority’s respective costs, fees, and expenses due hereunder have been paid) and distribute the documents called for hereunder upon the Close of Escrow, provided each of the following conditions has then been fulfilled:
7.1 The Title Company can issue the Title Policy, with a liability amount equal t
o the sum of the City Parcels Purchase Price an d Authority Parcels Purchase Price, showing fee title to the City Parcels and Authority Parcels vested in Buyer, subject only to the Permitted Title Exceptions (or as otherwise provided in Section 5.1 above).
7.2 Escrow Holder shall have received Buyer’s authorization to close;
7.3 Escrow Holder shall have received City ’s and Authority’s authorization to close; and
7.4 City, Authority, and Buyer shall have deposited in Escrow the documents and funds required pursuant to Section 6.
Unless otherwise instructed in writing , Escrow Holder is authorized to record at the Close of Escrow any instrument delivered through this Escrow if necessary or proper for the issuance of the Title Policy.
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8. Escrow Charges and Prorations.
8.1 City shall pay: (i) one-half of the escrow fees and charges of Escrow Holder for conveyance of the City Parcels (or, if escrow fees are not separately allocated as between the City Parcels and Authority Parcels, twenty-five percent (25%) of the total amount of escrow fees and charges); (ii) the entire premium for the Title Policy(ies) for the City Parcels in the amount of the City Parcels Purchase Price; (iii) none of the costs of any additional coverage or non-standard endorsements to the Title Policy as many be requested by Buyer; (iv) all costs of Ci ty’s legal counsel and consultants; (v) costs incurred to place title to the City Parcels in the condition set forth in Section 5.1 of this Agreement; (vi) to the extent escrow fees and charges are incurred with respect to City’s conveyance of the City Parcels that are not expressly stated in this Agreement to be the responsibility of any Party, that portion of such fees and charges that Escrow Holder determines in its reasonable discretion are most commonly the responsibility of the seller of real property, based on the custom and practice for similar transactions in Orange County, California; and (vii) to the extent escrow fees and charges are incurred with respect to the City’s conveyance of the City Parcels that are not expressly stated in this Agreement to be the responsibility of any Party and Escrow Holder determines in its reasonable discretion that there is no custom and practice for the allocation of such fees and costs based on similar transactions in Orange County, California, one-half of such fees and charges.
8.2 Authority shall pay: (i) one-half of the escrow fees and charges of Escrow Holder for conveyance of the Authority Parcels (or, if escrow fees are not separately allocated as between the City Parcels and Authority Parcels, twenty-five percent (25%) of the total amount of escrow fees and charges); (ii) the entire premium for the Title Policy(ies) for the Authority Parcels in the amount of the Authority Parcels Purchase Price; (iii) none of the costs of any additional coverage or non-standard endorsements to the Title Policy as many be requested by Buyer; (iv) all costs of Authority’s legal counsel and consultants; (v) costs incurred to place title to the Authority Parcels in the condition set forth in Section 5.1 of this Agreement (including, w ithout limitation, any costs incurred to eliminate from title the exception to title referred to in Paragraph 22 of Part II of Schedule B of the Title Commitment); (vi) to the extent escrow fees and charges are incurred with respect to Authority’s conveyance of the Authority Parcels that are not expressly stated in this Agreement to be the responsibility of any Party, that portion of such fees and charges that Escrow Holder determines in its reasonable discretion are most commonly the responsibility of the seller of real property, based on the custom and practice for similar transactions in Orange County, California; and (vii) to the extent escrow fees and charges are incurred with respect to Authority’s conveyance of the Authority Parcels that are not expressly stated in this Agreement to be the responsibility of any Party and Escrow Holder determines in its reasonable discretion that there is no custom and practice for the allocation of such fees and costs based on similar transactions in Orange County, California, one-half of such fees and charges.
8.3 Buyer shall pay: (i) one -half of the escrow fees and charges of Escrow Holder; (ii) the costs of any additional premiums for additional coverage (above the amount of the City Parcels Purchase Price and/or Authority Parcels Purchase Price) or non- standard endorsements to the Title Policy requested by Buyer; ( iii) all costs of Buyer’s legal counsel and consultants; (iv) to the extent escrow fees and charges are incurred that are not expressly stated in this Agreement to be the responsibility of any Party, that portion of such fees and charges that Escrow Holder determines in its reasonable discretion are most commonly the responsibility of
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the purchaser of real property, based on the custom and practice for similar transactions in Orange County, California; and (v) to the extent escrow fees and charges are incurred that are not expressly stated in this Agreement to be the responsibility of any Party and Escrow Holder determines in its reasonable discretion that there is no custom and practice for the allocation of such fees and costs based on similar transactions in Orange County, California, one-half of such fees and charges.
8.4 If the Escrow shall fail to close due to either City’s or Authority’s default, City or Authority, as applicable, shall pay all Escrow cancellation charges. If the Escrow shall fail to close due to Buyer’s default, Buyer shall pay all Escrow cancellation charges. If Escrow shall fail to close due to for a reason that does not constitute a default by any Party, City and Authority shall pay twenty-five percent (25%) of all Escrow cancellation charges and Buyer shall pay fifty percent (50%) of all Escrow cancellation charges.
9. Indemnification.
Buyer hereby agrees to indemnify, defend, and hold harmle ss City and Authority and their respective officers, directors, employees, agents, and representatives (collectively, “City Indemnified Parties”) with counsel approved by City and Authority (and with such approval not to be unreasonably conditioned or denied) from and against all claims, liabilities, losses, damages, costs, and expenses, including, without limitation, legal fees and disbursements, incurred by City Indemnified Parties by reason of any claims or litigation brought or pursued by any third party challenging the transaction(s) that are the subject of this Agreement.
10. Representations and Warranties of Dev
eloper. Buyer hereby warrants and
represents to City and Authority that upon the Close of Escrow and by accepting the City Parcels Grant Deed and the Authority Parcels Grant Deed Buyer is accepting the City Parcels and Authority Parcels in an “AS IS, WHERE IS, and WITH ALL FAULTS” basis and is relying solely upon Buyer’s own independent factual, physical, and legal investigations, tests, and studies. This representation and warranty shall survive the Close of Escrow and delivery of said Grant Deeds.
11. Default. I
n the event of a breach or default under this Agreement by City or Authority, on the one hand, and Buyer, on the other hand, the non-defaulting Party(ies) shall have the right to terminate this Agreement and the Escrow by delivering written notice thereof to the defaulting Party(ies) and to Escrow Holder. Such termination of the Escrow by a non-defaulting Party or Parties shall be without prejudice to a non-defaulting Party’s rights and remedies against the defaulting Party(ies) at law or equity.
12. Notices. A
ll notices, demands , and requests which may be given, or which are required to be given by any P arty to this Agreement, and any exercise of a right of termination provided by this Agreement, shall be in writing and shall be deemed effective either: (1) on the first (1st) business day after being deposited into the custody of a nationally recognized overnight delivery service (i.e., FedEx Corporation, UPS, or DHL) addressed to such P arty at the address specified below; or (2) on the business day sent via electronic mail in Portable Document Format (PDF) with confirmation of receipt, in which case notice shall be deemed delivered upon receipt of confirmation of receipt. For purposes of this section, the addresses of the Parties for all notices are as follows:
Developer: Co
ttage Industries, LLC
696 Randolph Avenue, Suite A
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Costa Mesa, CA 92626
Attn.: Linda Sadeghi
Phone: (714) 966-6661
City and Authority: City of Garden Grove
11222 Acacia Parkway
Garden Grove, CA 92840
Attn.: City Manager
Phone: (949) 257-9095
Escrow Holder: As set forth in Section 2.
13. Broker’s
Commissions. Buyer represents and warrants to City and Authority that Buyer has used no broker, agent, finder , or other person in connection with the transaction contemplated hereby to whom a brokerage or other commission or fee may be payable. City and Authority represent and warrant to Buyer that City and Authority have used no broker, agent, finder, or other person in connection with the transaction contemplated hereby to whom a brokerage or other commission or fee may be payable. Each Party indemnifies and agrees to defend and hold the other Parties harmless from any claims resulting from its breach of the warranties, representations and covenants made by it in this Section.
14. Appraisal Costs. Pursuant to Paragraph 30 of the City Parcels Lease and Paragraph 30 of the Authority Parcels Sublease, and as a matter with which Escrow Holder is not to be concerned, within ten (10) days after the Close of Escrow City and Authority shall each reimburse Buyer for fifty percent (50%) of Buyer’s cost of causing the appraisal of the City Parcels and Authority Parcels to be prepared, in the total sum of Eight Thousand Dollars ($8,000.00).
15. Time is of the Essence. Th
e Parties hereto agree that time is of the essence with respect to each term, condition, and covenant hereof.
16. Entire Agreement. T his Agreement, together with all exhibits hereto, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the P arties or their predecessors in interest with respect to all or any part of the subject matter hereof; provided, however, that except as expressly provided herein nothing in this Agreement is intended or shall be interpreted to constitute a modifica tion or amendment to that certain Disposition and Development Agreement entered into by and between City and LAB on or about May 10, 2016, and subsequently assigned to Buyer (the “DDA”), which DDA shall remain in full force and effect in accordance with its terms.
17. Amendments. Any a
mendments to this Agreement shall be effective only when duly executed by City, Authority, and Buyer and deposited with Escrow Holder.
18. Attorneys’ Fees. In the event that suit is brought for the enforcement of this Agreement or as the result of any alleged breach thereof, the prevailing P arty or Parties in such suit shall be entitled to recover their reasonable attorneys’ fees, costs, and expenses from the losing Party or Parties, and any judgment or decree rendered in such proceedings shall include an award thereof.
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19. No Third Party Beneficiaries. This Agreement is entered into for the sole benefit of City , Authority, and Buyer, and no other P arties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under , or to this Agreement.
20. Governing Law. T his Agreement shall be governed by and construed in accordance with the laws of the State of California.
21. Counterparts. Th is Agreement may be executed simultaneously in one or m ore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
22. Construction of Document. T his Agreement is the result of a negotiation and is not the product of any one P arty. There shall be no presumption in the interpretation hereof that any ambiguity is to be resolved against any Party hereto. The Parties hereto waive expressly each and all provisions of California Civil Code Section 1654, which provides: “ IN CASES OF
UNCERTAINTY NOT REMOVED BY THE PRECEDING RULES, THE LANGUAGE OF A
CONTRACT SHOULD BE INTERPRETED MOST STRONGLY AGAINST THE PARTY WHO CAUSED THE UNCERTAINTY TO EXIST.”
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
BUYER:
NEST & REST, LLC
a California limited liability company
B
as agent and manager
Date: December_, 2022
CI:
COTTAGE INDUSTRIES, LLC
a California limited liability company
B
as agent and manager
Date: December _, 2022
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CITY:
CITY OF GARDEN GROVE, a California
municipal corporation
Me.A#(
Date: December ~ 2022
AUTHORITY:
GARDEN GROVE HOUSING
AUTHORITY, a public agency, corporate an
politic
Exe&tivenir ector
Date: December.Z'2.f 2022
el
-11-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
BUYER:
NEST & REST, LLC
a California limited liability company
By as ~ -
Date: Decembei;.?2,. 2022
CI:
COTT AGE INDUSTRIES, LLC
a California limited liability company
Date: December& 2022
112/036217--000S
18601380.S al2/ll/22
CITY:
CITY OF GARDEN GROVE, a California
municipal corporation
City Manager
Date: December _ , 2022
AUTHORITY:
GARDEN GROVE HOUSING
AUTHORITY, a public agency, corporate an
politic
Executive Director
Date: December_, 2022
Approved as to fonn:
City Attorney/Authority General Counsel
-11-
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EXHIBIT A
LEGAL DESCRIPTION OF CITY PARCELS
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-31 (11301 Garden Grove Blvd., Garden Grove)
LOTS 19 AND 20 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-19 (11461 Garden Grove Blvd., Garden Grove)
THE EAST 90 FEET OF THE SOUTH 125 FEET OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
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EXHIBIT B
LEGAL DESCRIPTION OF AUTHORITY PARCELS
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-15 (12951 7th Street, Garden Grove)
LOT 18 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-07 (11421 Garden Grove Blvd., Garden Grove) THE EAST 111.00 FEET OF THE WEST 121.00 FEET OF THE SOUTH 125.00 FEET, IN BLOCK 6 OF GARDEN GROVE HOME TRACT, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
3. APN 090- 174-06 (12942 8th Street, Garden Grove)
THAT PORTION OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WEST LINE OF SAID BLOCK 6, WHICH POINT IS 185.36 FEET SOUTHERLY FROM THE INTERSECTION OF SAID WEST LINE WITH THE WESTERLY EXTENSION OF THE SOUTH LINE OF LOT 8 OF TRACT NO. 631, AS SHOWN ON A MAP RECORDED IN BOOK 20, PAGE 26 OF SAID MISCELLANEOUS
MAPS, SAID POINT BEING THE SOUTHWEST CORNER OF THE LAND CONVEYED TO JOHN MATTHEWS AND WIFE BY DEED RECORDED JULY 12, 1958 IN BOOK 1668, PAGE 32 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY;
THENCE SOUTH ALONG THE WEST LINE OF SAID BLOCK 6 A DISTANCE OF 55.80 FEET TO A POINT 125.00 FEET NORTH OF THE SOUTHWEST CORNER OF SAID BLOCK 6;
THENCE EAST 10.00 FEET TO THE NORTHWEST CORNER OF LAND CONVEYED TO C.
LOWELL CLARKE AND WIFE BY DEED RECORDED JULY 21, 1943 IN BOOK 1197, PAGE 472 OF SAID OFFICIAL RECORDS;
THENCE CONTAINING EAST ALONG THE NORTH LINE OF SAID LAND CONVEYED TO CLARKE AND THE EASTERLY EXTENSION THEREOF, 135.66 FEET;
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THENCE NORTH 55.80 FEET TO THE SOUTHEAST CORNER OF SAID LAND CONVEYED TO JOHN MATTHEWS AND WIFE;
THENCE WEST ALONG THE SOUTH LINE OF SAID LAND CONVEYED TO MATTHEWS AND WIFE 145.66 FEET TO THE POINT OF BEGINNING.
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EXHIBIT C
FORM OF CITY PARCELS PROMISSORY NOTE
[On following pages]
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PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Amount: $432,653.28 (the “Loan Amount”)
December __. 2022 (the “Note Date”)
FOR VALUE RECEIVED, the undersigned, COTTAGE INDUSTRIES LLC, a California limited liability company (“Borrower”) promises to pay to the CITY OF GARDEN GROVE, a municipal corporation (“City”), or to order at 11222 Acacia Parkway, Garden Grove, California, 92840, or such other place as City may designate in writing, the principal sum of FOUR
HUNDRED THIRTY-TWO THOUSAND SIX HUNDRED FIFTY- THREE DOLLARS AND TWENTY-EIGHT CENTS (($432,653.28) plus interest, as set forth below, on the terms specified below.
1. Agreement.
This Note is given in accordance with that certain Purchase and Sale Agreement dated as of December 21, 2022, and entered into by and among City, the Garden Grove Housing Authority, and Borrower. The obligations of the Borrower under this Note shall be subject to the terms of the Deed of Trust of even date herewith, which secures performance under this Note.
2. Definitions. The
terms set forth in this section shall have the following meanings in this Note. Capitalized terms not defined in this Note shall have the same meanings as defined in the Deed of Trust, the terms of which are incorporated into this Note by this reference. (a) “Deed of Trust” shall mean that certain Deed of Tru s t, of even date
herewith, executed by Borrower for the benefit of City , which Deed of Trust secures the obligations of this Note.
(b) “Loan Amount” shall mean the sum of $432,653.28 that is being loaned by City to Borrower, repayment of which Loan Amount is the subject of this Note. (c) “Note” shall mean this Promissory Note Secured by Deed of Trust. (d) “Note Date” shall mean the date first written above. (e) “Parties” shall mean City and Borrower.
(f) “Property” shall mean that certain real property described on Exhibit “A,” attached hereto and incorporated herein, together with all improvements, and fixtures now or hereafter constructed, placed, or located on the Property. (g) “Purchase and Sale Agreement ” shall have the meaning ascribed to that term in Section 1 of this Note.
(h) “Term” shall mean the term of this Note, which shall begin on the date first set forth above and shall end on December 29, 2023.
3. Repayment.
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(a) Monthly Interest -Only Payments . Starting on February 1, 2023, and continuing thereafter from month-to-month until December 29, 2023, when principal and accrued interest thereon, if any, are due and payable, Borrower shall make monthly payments to City , or to order, on the first day of each calendar month, of interest only, in arrears, at the rate of four percent per annum (4%) computed on the basis of a 360-day year. The monthly payments for each full calendar month during the Term shall be in the amount of One Thousand Four Hundred Fory- Two Dollars and Eighteen Cents ( $1,442.18). Interest payments due for partial calendar months shall be prorated. Thus, t he first payment to be made on or before February 1, 2023, shall additionally include the product of (1) Forty-Eight Dollars and Seven Cents ($48.07) multiplied by the number of days in the month of December 2022 after the Note Date and the last payment to be made on or before December 29, 2023, shall include an interest payment of One Thousand Three Hundred Ninety-Four Dollars and Three Cents ($1,394.03) ($48.07 per day X 29 days = $1,394.03).
(b) Repayment in Full. At the end of the Term of this Note, the entire unpaid principal balance and all accrued interest, if any, shall be due and payable. Furthermore, the total amount of the unpaid principal owed under this Note shall immediately become due and payable in the event of a default by Borrower under this Note or the Deed of Trust. Failure to declare such amounts due shall not constitute a waiver on the part of City to declare them due in the event of a subsequent default.
(c) Terms of Payment .
All amounts due and payable under the Note are
payable at the Office of City at the address provided above, or at such other place or places as City may designate to Borrower in writing from time to time. Any payment under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts and which on the respective dates on which such payments are due shall be in immediately available funds.
(d) Prepayments. Bor
rower may prepay all or part of the principal balance plus applicable interest due under this Note without penalty.
4. Prohibition Against Transfer of Interest. Borrower shall not make any transfer, sale, assignment or conveyance, or transfer in any other form, other than in accordance with the terms of this Note or the Deed of Trust. If any such transfer is made, all amounts due under this Note shall become immediately due and payable without further notice by City, as set forth herein.
The following events shall not be considered a transfer of interest: (a) a change in ownership of Borrower as a result of a merger, consolidation, reorganization, or joint venture; (b) the sale, exchange, issuance, or other transfer of Borrower’s stock on a national exchange or between Borrower’s parent company, if any, and any subsidiary, affiliate, related entity, or other entity that controls, is controlled by, or is under common control with Borrower; (c) the transfer of this Note to Borrower’s parent entity, if any, or any subsidiary, affiliate, related entity, an entity that controls, is controlled by, or is under common control with Borrower; (d) a collateral assignment of Borrower’s interest in this Note to a lender as security for any indebtedness of Borrower to the lender; or (e) the leasing of any property subject to the Deed of Trust or any portion of Buyer’s planned Cottage Industries project to a tenant occupying the completed improvements in the ordinary course of business. Borrower shall not be required to obtain City’s consent and City shall have no right to delay, alter, or impede any of the foregoing transactions or combinations thereof,
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but a transfer of interest pursuant to clauses (a)-(d) of the preceding sentence (but not clause (e)) shall be effective only upon not less than sixty (60) days written notice to City.
5. Security. The Deed of Trust, dated the same date as this Note, secures this Note.
6. Waivers.
(a) Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time at City ’s sole disc retion and that City may accept security in consideration for any such extension or release any security for this Note at its sole discretion all without in any way affecting the liability of Borrower. (b) No extension of time for payment of this Note or any i nstallment hereof made by agreement by City with any person or party now or hereafter liable for payment of this Note shall operate to release, discharge, modify, change, or affect the original liability of Borrower under this Note, either in whole or in part.
(c) The obligations of Borrower under this Note shall be absolute and Borrower waives any and all rights:
(i) to offset, deduct, or withhold any payments or charges due under this Note for any reasons whatsoever;
(ii) of presentment for payment, demand, protest and notices of dishonor and protest made by City; and
(iii) with respect to City’ s diligence in taking any action to collect any sums owing under this Note or in proceeding against any of City ’s rights and interests in and to properties securing payment of this Note.
7. Attorney Fees and Costs. Borrower agrees, that if any amounts due under this Note are not paid when due, in addition to any such past due amounts, Borrower shall pay, all costs and expenses of collection and reasonable attorney fees paid or incurred by City in connection with the collection or enforcement of this Note; whether or not suit is filed.
8. Deed of Trust Acceleration . Thi
s Note is secured by a Deed of Trust on the
Property. The Deed of Trust provides for acceleration of the payments due under this Note, along with applicable interest, as set forth in Section 9, below, in the event of default (after expiration of any applicable cure period) under the Deed of Trust or this Note.
9. Default. B
orrower shall be in default under this Note if Borrower: (i) fails to pay any money when due under this Note; (ii) breaches any representation or covenant made in this Note in any material respect; or (iii) breaches any provision of the Deed of Trust.
All covenants, conditions, and agreements contained in this Note and the Deed of Trust are hereby ma
de a part of this Note, and Borrower agrees that the unpaid balance of the then principal amount of this Note, together with all charges owing, shall, at the option of Authority hereof, become immediately due and payable, and thereafter until paid bear interest at the rate often percent (10%)
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per annum (“Default Rate”), compounded annually upon the failure of the Borrower to make any payment hereunder, as and when due (after expiration of any applicable cure period); upon the failure of Borrower to perform or observe any other term or provision of this Note; or upon the occurrence of any event (whether termed default, event of default, or similar term) which (after the expiration of any applicable cure period) under the terms of this Note or the Deed of Trust shall entitle Authority to exercise rights or remedies thereunder.
10. Governing Law. This Note shall be construed in accordance with and be governed by the laws of the State of California.
11. Severability. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
12. Time. Time is of the essence in this Note.
13. No Waiver by Authority. No waiver of any breach, default, or failure of condition under the terms of this Note or the Deed of Trust or the obligations secured thereby shall be implied from any failure of City to take, or any delay by City in taking, action with respect to such breach, default or failure, or any form of previous waiver of any s imilar or unrelated breach, default or failure; and waiver of any term of this Note or the Deed of Trust or any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver.
14. Amendments and Modifi
cations. This Note may not be changed orally, but only by an amendment in writing signed by Borrower and City.
15. Notices. Al l notices required in this Note shall be sent in accordance with Section 17 of the Deed of Trust.
IN WITNESS WHEREOF, Borrower has ex ecuted this Promissory Note as of the day and year first above written.
[SIGNATURE PAGE FOLLOWS]
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COTTAGE INDUSTRIES LLC
a California ·limited liability company
By:_____________________
As agent and manager
Date: December __, 2022
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EXHIBIT “A” TO PROMISSORY NOTE
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-31 (11301 Garden Grove Blvd., Garden Grove)
LOTS 19 AND 20 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-19 (11461 Garden Grove Blvd., Garden Grove)
THE EAST 90 FEET OF THE SOUTH 125 FEET OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
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EXHIBIT D
FORM OF CITY PARCELS DEED OF TRUST
[On following pages]
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Garden Grove
Attn.: City Clerk
11222 Acacia Parkway
Garden Grove, CA 92840
______________________________________________________________________________ No fee document pursuant to
Government Code Section 27383
APNs 090-172-31 and 090-174-19
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT (“Deed of Trust”) is made this __ day of December, 2022 , by trus tor Cottage Industries LLC , a California limited liability company (“Trustor”), and trustee First American Title Insurance Company (“Trustee”), for the benefit of the City of Garden Grove, a municipal corporation, as beneficiary (“Beneficiary”).
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited, the receipt of which is hereby acknowledged, Trustor , hereby irrevocably grants, transfers, conveys and assigns to Beneficiary, in trust, with power of sale, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, Trustor’s fee interest in the property located in Orange County, California, described in the attached Exhibit “A” and more commonly known as the “Property.”
TOGETHER WITH all easements, rights -of-way and rights used in connection therewith or as a means of access thereto;
TOGETHER WITH any and all buildings, improvements and landscaping of every kind and description now or hereafter erected thereon, and all property of Tr ustor now or hereafter affixed to or placed upon the Property (sometimes collectively referred to as the “Improvements”); TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right -of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all oil, gas and mineral rights (including royalty and leasehold rights relating thereto), all water and water rights and shares of stock relating thereto, and any and all awards made for the taking by eminent domain or by and proceeding or purchase in lieu thereof of the whole or any part of such property; and
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TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be attached to said building or buildings in any manner.
All of the foregoing, together with the Property, is herein referred to as the “Security”.
To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever.
TO SECURE to Beneficiary the obligations and any payments required by that certain Promissory Note, executed by Trustor in favor of Beneficiary of even date herewith, along with any exhibits attached thereto (the “Note”);
TO SECURE to Beneficiary the performance by Trustor of all agreements and adherence to all conditions set forth herein and in the Note;
TO SECURE all renewals, extensions, supplements and other modifications of any of the foregoing, including without limitation modifications that are evidenced by new or additiona l documents or that change the rate of interest on any obligation; and TO SECURE the payment of all other sums, with interest thereon, advanced in accordance herewith, to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor herein contained.
All of the foregoing obligations, as well as those identified hereafter, are referred to collectively herein as the “Trustor Covenants.”
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES AS FOLLOWS:
1. Purpose. T
his Deed of Trust secures Trustor’s obligation to repay the Note and perform all of Trustor’s obligations set forth in the Note.
2. Definitions. The terms set forth in this section shall have the following meanings in this Deed of Trust. Any capitalized terms not defined in this Deed of Trust shall have the same meanings ascribed to such terms in the Note, the terms of which have been incorporated into this Deed of Trust.
a. “Trustor” s hall mean Cottage Industries LLC.
b. “Deed of Trust” shall mean this Deed of Trust and Security Agreement.
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c. “Loan” and “Loan Amount ” shall have the same meaning s as set forth in the Note.
d. “Note” shall mean that certain Promissory Note secured by this Deed of Trust, of even date herewith, executed by Trustor for the benefit of Beneficiary.
e. “Beneficiary” shall mean the City of Garden Grove, a municipal corporation.
f. “Property” shall mean that certain real property legally described on Exhibit “A,” attached to this Deed of Trust and incorporated herein, together with all Improvements, and fixtures now or hereafter constructed, placed or located on the Property.
g. “Term” shall mean the term of the Note, the obligations of which are secured by this Deed of Trust.
3. Trustor’s Estate.
Trustor represents and warrants that it is lawfully seized of the estate hereby conveyed, that it has the right to grant and convey the Security, and that, subject to Trustor’s rights set forth in Section 22 of this Deed of Trust, other than this Deed of Trust and the Note, the Security is not encumbered by any senior liens. Trustor agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage of any title insurance policy insuring Beneficiary’s interest in the Security.
4. Payment of Sums Owed. Tr
ustor shall promptly pay to Beneficiary, when due, any
amounts due under the Note.
5. Trustor Covenants . T rustor will observe and perform all of the covenants and agreements of the Trustor Covenants, as more specifically contained herein.
6. Liens. Exc ept as permitted pursuant to Section 22 of this Deed of Trust or as otherwise approved in writing by Beneficiary, Trustor shall not cause, incur, suffer or permit to exist or become effective any lien, encumbrance or charge upon all or any part of the Property, or any interest therein other than (i) easements, rights of way, covenants, conditions, restrictions, liens and other title limitations, and (ii) immaterial easements and rights of way which are required by governmental authorities as a condition to the use of the Security (collectively, the “Permitted Encumbrances”). Trustor shall pay and promptly discharge, at Trustor ’s cost and expense, all liens, encumbrances and charges u pon the Security, or any part thereof or interest therein other than the Permitted Encumbrances. If Trustor shall fail to remove and discharge any such lien, encumbrance, or charge, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien, encumbrance or charge nor inquiring into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in court a bond or the amount claimed, or otherwise giving security for such claim, in such manner as is or may be prescribed by law. Trustor shall, immediately upon demand by Beneficiary, pay to Beneficiary an amount equal to all costs and expenses incurred by
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Beneficiary in connection with the exercise by Beneficiary of the foregoing right to discharge any such lien, encumbrance or charge, together with interest thereon from the date of such expenditure and, until paid, such sums shall be secured hereby.
7. Preservation and Maintenance of Security. Trustor ag rees that at all times prior to full payment of the sums owed under the Note, secured by this Deed of Trust, that Trustor will, maintain, preserve and keep the Security or cause the Security to be maintained and preserved in good condition and repair and in a prudent and businesslike manner.
8. Protection of Beneficiary’s Security.
a. If Trustor fails to perform the Trustor Covenants or any obligations contained in this Deed of Trust, or the Note, if an Event of Default, as defined hereafter, occurs, or if any action or proceeding is commenced which materially affects Beneficiary ’s interest in the Security, then Beneficiary, at its option and upon notice to Trustor , may make such appearances, disburse such sums and take such action as it determines necessary to protect Beneficiary ’s interest, including but not limited to, disbursement of reasonable attorney’s fees and necessary repairs to the Security.
b. Any amounts disbursed by Beneficiary pursuant to this Section will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and Beneficiary agree to other terms of payment, such amount will be payable upon notice from Beneficiary to Trustor requesting payment thereof, and will bear interest of ten percent (10%) from the date of disbursement unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Beneficiary to insure any expense or take any action hereunder.
c. In the event that Trustor f ails to observe or perform any obligations or Trustor Covenants under this Deed of Trust, or the Note, then Beneficiary may hold Trustor in default, treat the occurrence as an Event of Default pursuant to this Deed of Trust, and take any actions available under this Deed of Trust, or the Note, including, but not limited to, acceleration of any payments due or sale of the Security, as provided for hereafter.
9. Events of Default. Each of the following shall constitute an event of default (“Event of Default”): (a) the occurrence of any default under the provisions of this Deed of Trust, or the Note; or (b) the failure to make any payment or perform any of Trustor’s other obligations now or hereafter secured by this Deed of Trust (subject to any applicable cure period).
10. Acceleration; R
emedies and Notice. If Trustor is in default of any obligations under this Deed of Trust (including the Trustor Covenants), or the Note, or at the occurrence of any Event of Default, then at the option of Beneficiary, the amount of any payment related to any such default, the Loan Amount under the Note, as applicable, and any other indebtedness and other obligations
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secured hereby shall immediately become due and payable without presentment, protest notice or demand, all of which are hereby expressly waived, upon written notice by Beneficiary to Trustor and no omission on the part of Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right.
Upon Trustor’s breach of any covenant or agreement in this Deed of Trust (including, but not limited to, the covenant to pay, when due, any sums secured by this Deed of Trust), or the Note, or upon the occurrence of an Event of Default, Beneficiary , prior to acceleration of the sums due under the Note, shall provide notice by certified mail, return receipt requested, to Trustor specifying:
a. the breach or Event of Default;
b. if the breach or Event of Default is curable, and the action required to cure such breach;
c. a date, not less than thirty (30) days from the date the notice is effective, by which such breach, if curable, is to be cured; and
d. if the breach is curable, that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums due under the Note, as secured by this Deed of Trust, as well as sale of the Security (collectively the “Notice of Default”)
If the breach or Event of Default is not curable or is not cured on or before the date specified in the Notice of Default, Beneficiary, at its option, may:
i. declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; ii. commence an action to foreclose this Deed of Trust as a mortgage, or specifically enforce any of the covenants hereof;
iii. deliver to Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale as the law may require; or iv. exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby; or provided by law.
The Notice of Default shall also inform Trustor of Trustor ’s right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of Trustor to acceleration and sale.
Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Section.
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11. Foreclosure by Power of Sale. Should Beneficiary elect to foreclose by exercise of the power of sale herein contained, Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust, and the Note, which is secured hereby (and the deposit of which shall be deemed to constitute ev idence that unpaid amounts due pursuant to the Note are immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require.
a. Upon receipt of such notice of election to foreclose from B eneficiary,
Trustee shall cause to be recorded, published and delivered to Beneficiary’s notice of election to sell as then required by law and by this Deed of Trust.
Trustee shall, without demand on Trustor , after lapse of such time as may then be required by law and after recordation of a Notice of Default and after Notice of Sale having been given as required by law, sell the Security, at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine unless specified otherwise to Trustor according to law, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any matters of facts shall be conclusive proof of the truthfulness thereof. Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers.
b. After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the unpaid amounts due pursuant to the Note; (ii) all other sums then secured hereby, as applicable; and (iii) the remainder, if any, to Trustor.
c. Trustee may postpone sale of all or any portion of the Security by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale.
12. Trustor’
s Right to Reinstate . Notwithstanding Beneficiary ’s acceleration of the sums secured by this Deed of Trust, or other actions taken in response to any Event of Default of Trustor, Trustor shall have the right to have any proceedings commenced by Beneficiary , to enforce this Deed of Trust, discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if:
a. Trustor pays B
eneficiary all sums which would be then due under this Deed of Trust, or the Note, as applicable;
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b. Trustor cures all breaches of any other covenants or agreement s of Trustor contained in this Deed of Trust, or the Note, as applicable c. Trustor pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies, including, but not limited to, reasonable attorney’s fees, as applicable; and d. Trustor takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary’s interest in the Security and Trustor’s obligation to pay the sums secured by this Deed of Trust shall continue unimpaired.
Upon such payment and cure by Trustor , this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.
13. Forbearance by Beneficiary N ot a Waiver . Any forbearance by Beneficiary in exercising any right or remedy shall not be a waiver of the exercise of any such right or remedy, nor shall acceptance by Beneficiary of any payment provided for in the Note constitute a waiver of Beneficiary’s right to require prompt payment of any remaining amounts owed. The procurement of insurance or the payment of taxes or other liens or charges by Beneficiary shall not be a waiver of Beneficiary ’s right to acceler ate the maturity of the indebtedness secured by this Deed of Trust.
14. Remedies Cumulative. Al l remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, including the Note, or afforded by law or equity, and may be exercised concurrently, independently or successively at the discretion of Beneficiary.
15. Reconveyance. Upon payment of all sums secured by this Deed of Trust, as set forth in the Note, Beneficiary shall request Trustee to reconvey the Security and shall surrender this Deed of Trust and the Note to Trustee. Trustee shall reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any.
16. Substitute Trustee . B eneficiary, at its option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee shall succeed to all the title, power and duties conferred upon Trustee herein and by applicable law.
17. Notice. Al
l notices, demands and requests which may be given, or which are required to be given by any party to this Deed of Trust, and any exercise of a right of termination provided by this Deed of Trust, shall be in writing and shall be deemed effective either: (1) on the third (3rd) business day after being sent, by certified or registered mail, return receipt requested, addressed to the intended recipient at the address specified below; (2) on the first (1st) business day after being deposited into the custody of a nationally recognized overnight delivery service (i.e., FedEx Corporation, UPS, or DHL) addressed to such party at the address specified below; or (3) on the business day sent via electronic mail in Portable Document Format (PDF) with
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confirmation of receipt, in which case notice shall be deemed delivered upon receipt of confirmation of receipt. For purposes of this section, the addresses of the parties for all notices are as follows:
If to Trustor: Cottage Industries LLC
Attn.: Linda Sadeghi
696 Randolph Avenue, Suite A
Costa Mesa, CA 92626
If to Beneficiary: City of Garden Grove
Attn.: City Manager
11222 Acacia Parkway
Garden Grove, CA 92840
18. Governing Law. This Deed of Trust shall be governed by the laws of the State of California.
19. Severability. Eve ry provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust.
20. Captions. The
captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof.
21. Exhibits. Any e xhibits referred to in this Deed of Trust are incorporated in this Deed of Trust by such reference.
22. Subordination. This Deed of Trust shall be automatically subordinate to a deed of trust, to be executed by Trustor or Trustor’ s successor in interest and recorded in Orange County, California, to secure a loan (hereafter referred to as a “Project Financing Loan ”) obtained for the purpose of the construction, permanent, or so- called “take-out” financing or refinancing of the acquisition, development, construction, maintenance, repair, and operation of the Cottage Industries project that is the subject of that certain Disposition and Development Agreement entered into by and between LAB Holding LLC (whose interest was subsequently assigned to Trustor) and City and dated as of May 10, 2016, as the same may be amended from time to time (the “DDA”). For purposes of this Deed of Trust, a Project Financing Loan shall include any advance of funds to Trustor (or succe ssor in interest) by the lender for the purpose of acquiring, developing, constructing, maintaining, repairing, and operating the Cottage Industries project consistent with the DDA, whether in the form of a mortgage, deed of trust, or other security instrument in favor of the lender. The following are the conditions to this subordination:
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a. At the time of recordation of the deed of trust securing the Project Financing Loan, no unrescinded Notice of Default of this Deed of Trust appears of record.
b. Any funds derived from the Project Financing Loan shall be used only for the acquisition, development, construction (including both so-called “hard” and “soft” costs), maintenance, repair, and operation of the Cottage Industries project that is the subject of the DDA , including without limitation for the payment of loan fees, interest, or charges directly connected with the Project Financing Loan.
c. The total amount of the Project Financing Loan shall not exceed eighty percent (80%) of the anticipated value of the entir e Cottage Industries project (including all parcels subject to the DDA, including but not limited to the Property ) after completion of the construction of the Cottage Industries project or, if the Project Financing Loan is to be issued after completion of construction, within ninety (90) days prior to the date of issuance of the Project Financing Loan. For example, if the value of the Cottage Industries project is estimated at $4 million after completion of construction and the Project Financing Loan is issued prior to completion, the principal amount of the Project Financing Loan shall not exceed $3.2 million.
d. No portion of the Project Financing Loan shall be used to pay loan fees, interest, or other charges not directly connected with the acquisition, development, construction, maintenance, repair, and operation of the Cottage Industries project.
e. The proceeds of any Project Financing Loan issued prior to completion of construction of the Cottage Industries project shall be disbursed by the lender either th rough its own offices or through a bonded disbursement control agency only after inspection of the work completed and presentation of vouchers signed by Trustor or its successor in interest for the cost of work, labor, or materials actually performed or used in the acquisition, development, and construction of improvements comprising the Cottage Industries project.
f. The remaining terms and provisions of the construction loan shall be as required by the lender.
Beneficiary shall, within fifteen ( 15) days after receipt of a written request therefor from Trustor, execute a separate agreement of subordination, in recordable form, in favor of the lender for any Project Financing Loan to which this Deed of Trust is hereby subordinated, and deliver the subordination agreement to the lender or the lender’s title company designated by Trustor. The terms of any such subordination agreement shall prevail over the subordination provisions provided for in this Deed of Trust. Beneficiary’s Executive Director shall have authority to approve and execute such subordination agreement.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first writte n above.
COTTAGE INDUSTRIES LLC
a California ·limited liability company
By:_____________________________
Printed Name: Linda Sadeghi, as agent and manager
Date: December __, 2022
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EXHIBIT “A” TO DEED OF TRUST
LEGAL DE SCRIPTION OF THE PROPERTY
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-31 (11301 Garden Grove Blvd., Garden Grove)
LOTS 19 AND 20 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-19 (11461 Garden Grove Blvd., Garden Grove)
THE EAST 90 FEET OF THE SOUTH 125 FEET OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
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EXHIBIT E
FORM OF AUTHORITY PARCELS PROMISSORY NOTE
[On following pages]
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PROMISSORY NOTE SECURED BY DEED OF TRUST
Principal Amount: $772,346.72 (the “Loan Amount”)
December __. 2022 (the “Note Date”)
FOR VALUE RECEIVED, the undersigned, COTTAGE INDUSTRIES LLC, a California limited liability company (“Borrower”) promises to pay to the GARDEN GROVE HOUSING AUTHORITY, a public b ody, corporate and politic (“Authority”), or to order at 11222 Acacia Parkway, Garden Grove, California, 92840, or such other place as Authority may designate in writing, the principal sum of SEVEN HUNDRED SEVENTY -TWO THOUSAND THREE HUNDRED FORTY- SIX DOLLARS AND SEVENTY- TWO CENTS ($7 72,346.72), plus interest, as set forth below, on the terms specified below.
1. Ag reement. This Note is given in accordance with that certain Purchase and Sale Agreement dated as of December 21, 2022, and entered into by and among the City of Garden Grove, Authority, and Borrower. The obligations of the Borrower under this Note shall be subject to the terms of the Deed of Trust of even date herewith, which secures performance under this Note.
2. De
finitions. The terms set for th in this section shall have the following meanings in this Note. Capitalized terms not defined in this Note shall have the same meanings as defined in the Deed of Trust, the terms of which are incorporated into this Note by this reference. (a) “Deed of Trust” shall mean that certain Deed of Trust, of even date he
rewith, executed by Borrower for the benefit of Authority, which Deed of Trust secures the obligations of this Note.
(b) “Loan Amount” shall mean the sum of $772.346.72 that is being loaned by Authority to Borrower, repayment of which Loan Amount is the subject of this Note. (c) “Note” shall mean this Promissory Note Secured by Deed of Trust. (d) “Note Date” shall mean the date first written above. (e) “Parties” shall mean Authority and Borrower.
(f) “Property” shall mean that certain real property described on Exhibit “A,” attached hereto and incorporated herein, together with all improvements, and fixtures now or hereafter constructed, placed, or located on the Property. (g) “Purchase and Sale Agreement ” shall have the meaning ascribed to that term in Section 1 of this Note.
(h) “Term” shall mean the term of this Note, which shall begin on the date first set forth above and shall end on December 29, 2023.
3. Rep
ayment.
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(a) Monthly Interest -Only Payments . Starting on February 1, 2023, and continuing thereafter from month-to-month until December 29, 2023, when principal and accrued interest thereon, if any, are due and payable, Borrower shall make monthly payments to City , or to order, on the first day of each calendar month, of interest only, in arrears, at the rate of four percent per annum (4%) computed on the basis of a 360-day year. The monthly payments for each full calendar month during the Term shall be in the amount of Two Thousand Five Hundred Seventy-Four Dollars and Forty-Nine Cents ($ 2,574.49). Interest payments due for p artial calendar months shall be prorated. Thus, t he first payment to be made on or before February 1, 2023, shall additionally include the product of (1) Eighty- Five Dollars and Eighty-Two Cents ($85.82) multiplied by the number of days in the month of December 2022 after the Note Date and the last payment to be made on or before December 29, 2023, shall include an interest payment of Two Thousand Four Hundred Eighty-Eight Dollars and Sixty-Seven Cents ($85.82 per day X 29 days = $2,488.67).
(b) Repayment in Full. A t the end of the Term of this Note, the entire unpaid principal balance and all accrued interest, if any, shall be due and payable. Furthermore, the total amount of the unpaid principal owed under this Note shall immediately become due and payable in the event of a default by Borrower under this Note or the Deed of Trust. Failure to declare such amounts due shall not constitute a waiver on the part of Authority to declare them due in the event of a subsequent default.
(c) Terms of Payment . A
ll amounts due and payable under the Note are
payable at the Office of Authority at the address provided above, or at such other place or places as Authority may designate to Borrower in writing from time to time. Any payment under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts and which on the respective dates on which such payments are due shall be in immediately available funds. (d) Prepayments. Bor
rower may prepay all or part of the principal balance plus applicable interest due under this Note without penalty.
4. Pr ohibition Against Transfer of Interest. Borrower shall not make any transfer, sale, assignment or conveyance, or transfer in any other form, other than in accordance with the terms of this Note or the Deed of Trust. If any such transfer is made, all amounts due under this Note shall become immediately due and payable without further notice by City, as set forth herein.
The following events shall not be considered a transfer of interest: (a) a change in ownership of Borrower as a result of a merger, consolidation, reorganization, or joint venture; (b) the sale, exchange, issuance, or other transfer of Borrower’s stock on a national exchange or between Borrower’s parent company, if any, and any subsidiary, affiliate, related entity, or other entity that controls, is controlled by, or is under common control with Borrower; (c) the Transfer of this Note to Borrower’s parent entity, if any, or any subsidiary, affiliate, related entity, an entity that controls, is controlled by, or is under common control with Borrower; (d) a collateral assignment of Borrower’s interest in this Note to a lender as security for any indebtedness of Borrower to the lender; or (e) the leasing of any property subject to the Deed of Trust or any portion of Buyer’s planned Cottage Industries project to a tenant occupying the completed improvements in the ordinary course of business. Borrower shall not be required to obtain Authority’s consent and Authority shall have no right to delay, alter, or impede any of the foregoing transactions or
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combinations thereof, but a transfer of interest pursuant to clauses (a)-(d) of the preceding sentence (but not clause (e)) shall be effective only upon not less than sixty (60) days written notice to Authority.
5. Secu rity. The Deed of Trust, dated the same date as this Note, secures this Note.
6. Waivers.
(a) Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time at Authority’s sole discretion and that Authority may accept security in consideration for any such extension or release any security for this Note a t its sole discretion all without in any way affecting the liability of Borrower. (b) No extension of time for payment of this Note or any installment hereof made by agreement by Authority with any person or party now or hereafter liable for payment of this No te shall operate to release, discharge, modify, change, or affect the original liability of Borrower under this Note, either in whole or in part.
(c) The obligations of Borrower under this Note shall be absolute and Borrower waives any and all rights:
(i) to offset, deduct, or withhold any payments or charges due under this Note for any reasons whatsoever;
(ii) of presentment for payment, demand, protest and notices of dishonor and protest made by Authority; and
(iii) with respect to Authority’s diligence in taking any action to collect any sums owing under this Note or in proceeding against any of Authority’s rights and interests in and to properties securing payment of this Note.
7. At torney Fees and Costs. Borrower agrees, that if any amounts due under this Note are not paid when due, in addition to any such past due amounts, Borrower shall pay, all costs and expenses of collection and reasonable attorney fees paid or incurred by Authority in connection with the collection or enforcement of this Note; whether or not suit is filed.
8. Deed of Trust Acceleration . This Note is secured by a Deed of Trust on the Property. The Deed of Trust provides for acceleration of the payments due under this Note, along with applicable interest, as set forth in Section 9, below, in the event of default (after expiration of any applicable cure period) under the Deed of Trust or this Note.
9. Def
ault. Borrower shall be in default under this Note if Borrower: (i) fails to pay any money when due under this Note; (ii) breaches any representation or covenant made in this Note in any material respect; or (iii) breaches any provision of the Deed of Trust.
All covenants, conditions, and agreements contained in this Note and the Deed of Trust are hereby ma
de a part of this Note, and Borrower agrees that the unpaid balance of the then principal amount of this Note, together with all charges owing, shall, at the option of Authority hereof, become
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immediately due and payable, and thereafter until paid bear interest at the rate often percent (10%) per annum (“Default Rate”), compounded annually upon the failure of the Borrower to make any payment hereunder, as and when due (after expiration of any applicable cure period); upon the failure of Borrower to perform or observe any other term or provision of this Note; or upon the occurrence of any event (whether termed default, event of default, or similar term) which (after the expiration of any applicable cure period) under the terms of this Note or the Deed of Trust shall entitle Authority to exercise rights or remedies thereunder.
10. Gove
rning Law. This Note shall be construed in accordance with and be governed by the laws of the State of California.
11. Se verability. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
12. Time . Time is of the essence in this Note.
13. No Waiver by Authority. No waiver of any breach, default, or failure of condition under the terms of this Note or the Deed of Trust or the obligations secured thereby shall be implied from any failure of Authority to take, or any delay by Authority in taking, action with respect to such breach, default or failure, or any form of previous waiver of any similar or unrelated breach, default or failure; and waiver of any term of this Note or the Deed of Trust or any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver.
14. Am
endments and Modifications. This Note may not be changed orally, but only by an amendment in writing signed by Borrower and Authority.
15. No tices. All notices required in this Note shall be sent in accordance with Section 17 of the Deed of Trust.
IN WITNESS WHEREOF, Borrower has executed this Promissory Note as of the day and year fir
st above written.
[SIGNATURE PAGE FOLLOWS]
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COTTAGE INDUSTRIES LLC
a California ·limited liability company
By:_____________________
As agent and manager
Date: December __, 2022
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EXHIBIT “A” TO PROMISSORY NOTE
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-15 (12951 7th Street, Garden Grove)
LOT 18 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-07 (11421 Garden Grove Blvd., Garden Grove) THE EAST 111.00 FEET OF THE WEST 121.00 FEET OF THE SOUTH 125.00 FEET, IN BLOCK 6 OF GARDEN GROVE HOME TRACT, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
3. APN 090- 174-06 (12942 8th Street, Garden Grove)
THAT PORTION OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WEST LINE OF SAID BLOCK 6, WHICH POINT IS 185.36 FEET SOUTHERLY FROM THE INTERSECTION OF SAID WEST LINE WITH THE WESTERLY EXTENSION OF THE SOUTH LINE OF LOT 8 OF TRACT NO. 631, AS SHOWN ON A MAP RECORDED IN BOOK 20, PAGE 26 OF SAID MISCELLANEOUS
MAPS, SAID POINT BEING THE SOUTHWEST CORNER OF THE LAND CONVEYED TO JOHN MATTHEWS AND WIFE BY DEED RECORDED JULY 12, 1958 IN BOOK 1668, PAGE 32 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY;
THENCE SOUTH ALONG THE WEST LINE OF SAID BLOCK 6 A DISTANCE OF 55.80 FEET TO A POINT 125.00 FEET NORTH OF THE SOUTHWEST CORNER OF SAID BLOCK 6;
THENCE EAST 10.00 FEET TO THE NORTHWEST CORNER OF LAND CONVEYED TO C.
LOWELL CLARKE AND WIFE BY DEED RECORDED JULY 21, 1943 IN BOOK 1197, PAGE 472 OF SAID OFFICIAL RECORDS;
THENCE CONTAINING EAST ALONG THE NORTH LINE OF SAID LAND CONVEYED TO CLARKE AND THE EASTERLY EXTENSION THEREOF, 135.66 FEET;
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THENCE NORTH 55.80 FEET TO THE SOUTHEAST CORNER OF SAID LAND CONVEYED TO JOHN MATTHEWS AND WIFE;
THENCE WEST ALONG THE SOUTH LINE OF SAID LAND CONVEYED TO MATTHEWS AND WIFE 145.66 FEET TO THE POINT OF BEGINNING.
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EXHIBIT F
FORM OF AUTHORITY PARCELS DEED OF TRUST
[On following pages]
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Garden Grove
Attn.: City Clerk
11222 Acacia Parkway
Garden Grove, CA 92840
______________________________________________________________________________ No fee document pursuant to
Government Code Section 27383
APNs 090-172-15, 090-174-07, and 090-174-06
DEED OF TRUST AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT (“Deed of Trust”) is made this __ day of December, 2022 , by trustor Cottage Industries LLC , a California limited liability company (“Trustor”), and trustee First American Title Insurance Company (“Trustee”), for the benefit of the Garden Grove Housing Authority, a public agency, corporate and , as beneficiary (“Beneficiary”).
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness here in recited, the receipt of which is hereby acknowledged, Trustor , hereby irrevocably grants, transfers, conveys and assigns to Beneficiary, in trust, with power of sale, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, Trustor’s fee interest in the property located in Orange County, California, described in the attached Exhibit “A” and more commonly known as the “Property.”
TOGETHER WITH all easements, rights -of-way and rights used in connection therewith or as a means of access thereto;
TOGETHER WITH any and all buildings, improvements and landscaping of every kind and description now or hereafter erected thereon, and all property of Trustor now or hereafter affixed to or placed upon the Property (sometimes collectively referred to as the “Improvements”); TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right -of-way of any street, open or proposed, adjoining the Propert y, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all oil, gas and mineral rights (including royalty and leasehold rights relating thereto), all water and water rights and shares of stock relating thereto, and any and all awards made for the taki ng
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by eminent domain or by and proceeding or purchase in lieu thereof of the whole or any part of such property; and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be attached to said building or buildings in any manner.
All of the foregoing, together with the Property, is herein referred to as the “Security”.
To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever.
TO SECURE to Beneficiary the obligations and any payments required by that certain Promissory Note, executed by Trustor in favor of Beneficiary of even date herewith, along with any exhibits attached thereto (the “Note”);
TO SECURE to Beneficiary the performance by Trustor of all agreements and adherence to all conditions set forth herein and in the Note;
TO SECURE all renewals, extensions, supplements and other modifications of any of the foregoing, including without limitation modifications that are evidenced by new or additional documents or that change the rate of interest on any obligation; and TO SECURE the payment of all other sums, with interest thereon, advanced in accordance herewith, to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor herein contained.
All of the foregoing obligations, as well as those identified hereafter, are referred to collectively herein as the “Trustor Covenants.”
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES AS FOLLOWS:
1. Purpose. T
his Deed of Trust secures Trustor’s obligation to repay the Note and perform all of Trustor’s obligations set forth in the Note.
2. Definitions. T he terms set forth in this section shall have the following meanings in this Deed of Trust. Any capitalized terms not defined in this Deed of Trust shall have the same meanings ascribed to such terms in the Note, the terms of which have been incorporated into this Deed of Trust.
a. “Trustor” shall mean Cottage Industries LLC.
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b. “Deed of Trust” shall mean this Deed of Trust and Security Agreement. c. “Loan” and “Loan Amount ” shall have the same meaning s as set forth in the Note.
d. “Note” shall mean that certain Promissory Note secured by this Deed of Trust, of even date herewith, executed by Trustor for the benefit of Beneficiary.
e. “Beneficiary” shall mean the Garden Grove Housing Authority, a public agency, corporate and politic.
f. “Property” shall mean that certain real property legally described on Exhibit “A,” attached to this Deed of Trust and incorporated herein, together with all Improvements, and fixtures now or hereafter constructed, placed or located on the Property.
g. “Term” shall mean the term of the Note, the obligations of which are secured by this Deed of Trust.
3. Trustor’s Estate.
Trustor represents and warrants that it is lawfully seized of the estate hereby conveyed, that it has the right to grant and convey the Security, and that, subject to Trustor’s rights set forth in Section 22 of this Deed of Trust, other than this Deed of Trust and the Note, the Security is not encumbered by any senior liens. Trustor agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage of any title insurance policy insuring Beneficiary’s interest in the Security.
4. Payment of Sums Owed. Tr
ustor shall promptly pay to Beneficiary, when due, any
amounts due under the Note.
5. Trustor Covenants . T rustor will observe and perform all of the covenants and agreements of the Trustor Covenants, as more specifically contained herein.
6. Liens. Exc ept as permitted pursuant to Section 22 of this Deed of Trust or as otherwise approved in writing by Beneficiary, Trustor shall not cause, incur, suffer or permit to exist or become effective any lien, encumbrance or charge upon all or any part of the Property, or any interest therein other than (i) easements, rights of way, covenants, conditions, restrictions, liens and other title limitations, and (ii) immaterial easements and rights of way which are required by governmental authorities as a condition to the use of the Security (collectively, the “Permitted Encumbrances”). Trustor shall pay an d promptly discharge, at Trustor ’s cost and expense, all liens, encumbrances and charges upon the Security, or any part thereof or interest therein other than the Permitted Encumbrances. If Trustor shall fail to remove and discharge any such lien, encumbrance, or charge, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien, encumbrance or charge nor inquiring into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in court a bond or the amount claimed, or otherwise giving security for
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such claim, in such manner as is or may be prescribed by law. Trustor shall, immediately upon demand by Beneficiary, pay to Beneficiary an amount equal to all costs and expenses incurred by Beneficiary in connection with the exercise by Beneficiary of the foregoing right to discharge any such lien, encumbrance or charge, together with interest thereon from the date of such expenditure and, until paid, such sums shall be secured hereby.
7. Preservation and Maintenance of Security. Trustor ag rees that at all times prior to full payment of the sums owed under the Note, secured by this Deed of Trust, that Trustor will, maintain, preserve and keep the Security or cause the Security to be maintained and preserved in good condition and repair and in a prudent and businesslike manner.
8. Protection of Beneficiary’s Security.
a. If Trustor fails to perform the Trustor Covenants or any obligations contained in this Deed of Trust, or the Note, if an Event of Default, as defined hereafter, occurs, or if any action or proceeding is commenced which materially affects Beneficiary ’s interest in the Security, then Beneficiary, at its option and upon notice to Trustor , may make such appearances, disburse such sums and take such action as it determines necessary to protect Beneficiary ’s interest, including but not limited to, disbursement of reasonable attorney’s fees and necessary repairs to the Security.
b. Any amounts disbursed by Beneficiary pursuant to this Section will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and Beneficiary agree to other terms of payment, such amount will be payable upon notice from Beneficiary to Trustor requesting payment thereof, and will bear interest of ten percent (10%) from the date of disbursement unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Beneficiary to insure any expense or take any action hereunder.
c. In the event that Trustor f ails to observe or perform any obligations or Trustor Covenants under this Deed of Trust, or the Note, then Beneficiary may hold Trustor in default, treat the occurrence as an Event of Default pursuant to this Deed of Trust, and take any actions available under this Deed of Trust, or the Note, including, but not limited to, acceleration of any payments due or sale of the Security, as provided for hereafter.
9. Events of Default. Each of the following shall constitute an event of default (“Event of Default”): (a) the occurrence of any default under the provisions of this Deed of Trust, or the Note; or (b) the failure to make any payment or perform any of Trustor’s other obligations now or hereafter secured by this Deed of Trust (subject to any applicable cure period).
10. Acceleration; R
emedies and Notice. If Trustor is in default of any obligations under this Deed of Trust (including the Trustor Covenants), or the Note, or at the occurrence of any Event
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of Default, then at the option of Beneficiary, the amount of any payment related to any such default, the Loan Amount under the Note, as applicable, and any other indebtedness and other obligations secured hereby shall immediately become due and payable without presentment, protest notice or demand, all of which are hereby expressly waived, upon written notice by Beneficiary to Trustor and no omission on the part of Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right.
Upon Trustor’s breach of any covenant or agreement in this Deed of Trust (including, but not limited to, the covenant to pay, when due, any sums secured by this Deed of Trust), or the Note, or upon the occurrence of an Event of Default, Beneficiary , prior to acceleration of the sums due under the Note, shall provide notice by certified mail, return receipt requested, to Trustor specifying:
a. the breach or Event of Default;
b. if the breach or Event of Default is curable, and the action required to cure such breach;
c. a date, not less than thirty (30) days from the date the notice is effective, by which such breach, if curable, is to be cured; and
d. if the breach is curable, that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums due under the Note, as secured by this Deed of Trust, as well as sale of the Security (collectively the “Notice of Default”)
If the breach or Event of Default is not curable or is not cured on or before the date specified in the Notice of Default, Beneficiary, at its option, may:
i. declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; ii. commence an action to foreclose this Deed of Trust as a mor tgage, or specifically enforce any of the covenants hereof;
iii. deliver to Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale as the law may require; or iv. exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby; or provided by law.
The Notice of Defaul t shall also inform Trustor of Trustor ’s right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of Trustor to acceleration and sale.
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Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Section.
11. Foreclosure by Power of Sale. Should Beneficiary el ect to foreclose by exercise of the power of sale herein contained, Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust, and the Note, which is secured hereby (and the deposit of which shall be deemed to constitute evidence that unpaid amounts due pursuant to the Note are immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require.
a. Upon receipt of such notice of election to foreclose from Beneficiary , T
rustee shall cause to be recorded, published and delivered to Beneficiary’s notice of election to sell as then required by law and by this Deed of Trust.
Trustee shall, without demand on Trustor , after lapse of such time as may then be required by law and after recordation of a Notice of Default and after Notice of Sale having been given as required by law, sell the Security, at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine unless specified otherwise to Trustor according to law, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any matters of facts shall be conclusive proof of the truthfulness thereof. Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers.
b. After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the unpaid amounts due pursuant to the Note; (ii) all other sums then secured hereby, as applicable; and (iii) the remainder, if any, to Trustor.
c. Trustee may postpone sale of all or any portion of the Security by public announcement at such time and place of sale, and from time to time thereafter, and without furthe r notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale.
12. Trustor’
s Right to Reinstate . Notwithstanding Beneficiary ’s acceleration of the sums secured by this Deed of Trust, or other actions taken in response to any Event of Default of Trustor, Trustor shall have the right to have any proceedings commenced by Beneficiary , to enforce this Deed of Trust, discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if:
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d. Trustor pays Beneficiary all sums which would be then due under this Deed of Trust, or the Note, as applicable;
e. Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust, or the Note, as applicable f. Trustor pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies, including, but not limited to, reasonable attorney’s fees, as applicable; and g. Trustor takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary’s interest in the Security and Trustor’s obligation to pay the sums secured by this Deed of Trust shall continue unimpaired.
Upon such payment and cure by Trustor , this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.
13. Forbearance by Beneficiary N ot a Waiver . Any forbearance by Beneficiary in exercising any right or remedy shall not be a waiver of the exercise of any such right or remedy, nor shall acceptance by Beneficiary of any payment provided for in the Note constitute a waiver of Beneficiary’s right to require prompt payment of any remaining amounts owed. The procurement of insurance or the payment of taxes or other liens or charges by Beneficiary shall not be a waiver of Beneficiary ’s right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
14. Remedies Cumulative. Al l remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, including the Note, or afforded by law or equity, and may be exercised concurrently, independently or successively at the discretion of Beneficiary.
15. Reconveyance. Upon payment of all sums secured by this Deed of Trust, as set forth in the Note, Beneficiary shall request Trustee to reconvey the Security and shall surrender this Deed of Trust and the Note to Trustee. Trustee shall reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any.
16. Substitute Trustee . B eneficiary, at its option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee shall succeed to all the title, power and duties conferred upon Trustee herein and by applicable law.
17. Notice. Al
l notices, demands and requests which may be given, or which are required to be given by any party to this Deed of Trust, and any exercise of a right of termination provided by this Deed of Trust, shall be in writing and shall be deemed effective either: (1) on the third (3rd) business day after being sent, by certified or registered mail, return receipt requested, addressed to the intended recipient at the address specified below; (2) on the first (1st) business
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day after being deposited into the custody of a nationally recognized overnight delivery service (i.e., FedEx Corporation, UPS, or DHL) addressed to such party at the address specified below; or (3) on the business day sent via electronic mail in Portable Document Format (PDF) with confirmation of receipt, in which case notice shall be deemed delivered upon receipt of confirmation of receipt. For purposes of this section, the addresses of the parties for all notices are as follows:
If to Trustor: Cottage Industries LLC
Attn.: Linda Sadeghi
696 Randolph Avenue, Suite A
Costa Mesa, CA 92626
If to Beneficiary: Garden Grove Housing Authority
Attn.: Executive Director
11222 Acacia Parkway
Garden Grove, CA 92840
18. Governing Law. This Deed of Trust shall be governed by the laws of the State of California.
19. Severability. Eve ry provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust.
20. Captions. The
captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof.
21. Exhibits. Any e xhibits referred to in this Deed of Trust are incorporated in this Deed of Trust by such reference.
22. Subordination. This Deed of Trust shall be automatically subordinate to a deed of trust, to be executed by Trustor or Trustor’ s successor in interest and recorded in Orange County, California, to secure a loan (hereafter referred to as a “Project Financing Loan ”) obtained for the purpose of the construction, permanent, or so- called “take-out” financing or refinancing of the acquisition, development, construction, maintenance, repair, and operation of the Cottage Industries project that is the subject of that certain Disposition and Development Agreement entered into by and between LAB Holding LLC (whose interest was subsequently assigned to Trustor) and the City of Garden Grove and dated as of May 10, 2016, as the same may be amended from time to time (the “DDA”). For purposes of this Deed of Trust, a Project Financing Loan shall include any advance of funds to Trustor (or successor in interest) by the lender for the purpose of
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acquiring, developing, constructing, maintaining, repairing, and operating the Cottage Industries project consistent with the DDA, whether in the form of a mortgage, deed of trust, or other security instrument in favor of the lender. The following are the conditions to this subordination:
a. At the time of recordation of the deed of trust securing the Project Financing Loan, no unrescinded Notice of Default of this Deed of Trust appears of record.
b. Any funds derived from the Project Financing Loan shall be used only for the acquisition, development, construction (including both so-called “hard” and “soft” costs) , maintenance, repair, and operation of the Cottage Industries project that is the subject of the DDA , including without limitation for the payment of loan fees, interest, or charges directly connected with the Project Financing Loan.
c. The total amount of the Project Financing Loan shall not exceed eighty percent (80%) of the anticipated value of the entire Cottage Industries project (including all parcels subject to the DDA, including but not limited to the Property ) after completion of the construction of the Cottage Industries project or, if the Project Financing Loan is to be issued after completion of construction, within ninety (90) days prior to the date of issuance of the Project Financing Loan. For example, if the value of the Cottage Industries project is estimated at $4 million after completion of construction and the Project Financing Loan is issued prior to completion, the principal amount of the Project Financing Loan shall not exceed $3.2 million.
d. No portion of the Project Financing Loan shall be used to pay loan fees, interest, or other charges not directly connected with the acquisition, development, construction, maintenance, repair, and operation of the Cottage Industries project.
e. The proceeds of any Project Financing Loan issued prior to completion of construction of the Cottage Industries project shall be disbursed by the lender either through its own offices or through a bonded disbursement control agency only after inspection of the work completed and presentation of vouchers signed by Trusto r or its successor in interest for the cost of work, labor, or materials actually performed or used in the acquisition, development, and construction of improvements comprising the Cottage Industries project.
f. The remaining terms and provisions of the construction loan shall be as required by the lender.
Beneficiary shall, within fifteen ( 15) days after receipt of a written request therefor from Trustor, execute a separate agreement of subordination, in recordable form, in favor of the lender for any Project Financing Loan to which this Deed of Trust is hereby subordinated, and deliver the
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subordination agreement to the lender or the lender’s title company designated by Trustor. The terms of any such subordination agreement shall prevail over the subordination provisions provided for in this Deed of Trust. Beneficiary’s Executive Director shall have authority to approve and execute such subordination agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above.
COTTAGE INDUSTRIES LLC
a California ·limited liability company
By:_____________________________
Printed Name: Linda Sadeghi, as agent and manager
Date: December __, 2022
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EXHIBIT “A” TO DEED OF TRUST
LEGAL DE SCRIPTION OF THE PROPERTY
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-15 (12951 7th Street, Garden Grove)
LOT 18 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-07 (11421 Garden Grove Blvd., Garden Grove) THE EAST 111.00 FEET OF THE WEST 121.00 FEET OF THE SOUTH 125.00 FEET, IN BLOCK 6 OF GARDEN GROVE HOME TRACT, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
3. APN 090- 174-06 (12942 8th Street, Garden Grove)
THAT PORTION OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WEST LINE OF SAID BLOCK 6, WHICH POINT IS 185.36 FEET SOUTHERLY FROM THE INTERSECTION OF SAID WEST LINE WITH THE WESTERLY EXTENSION OF THE SOUTH LINE OF LOT 8 OF TRACT NO. 631, AS SHOWN ON A MAP RECORDED IN BOOK 20, PAGE 26 OF SAID MISCELLANEOUS
MAPS, SAID POINT BEING THE SOUTHWEST CORNER OF THE LAND CONVEYED TO JOHN MATTHEWS AND WIFE BY DEED RECORDED JULY 12, 1958 IN BOOK 1668, PAGE 32 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY;
THENCE SOUTH ALONG THE WEST LINE OF SAID BLOCK 6 A DISTANCE OF 55.80 FEET TO A POINT 125.00 FEET NORTH OF THE SOUTHWEST CORNER OF SAID BLOCK 6;
THENCE EAST 10.00 FEET TO THE NORTHWEST CORNER OF LAND CONVEYED TO C.
LOWELL CLARKE AND WIFE BY DEED RECORDED JULY 21, 1943 IN BOOK 1197, PAGE 472 OF SAID OFFICIAL RECORDS;
THENCE CONTAINING EAST ALONG THE NORTH LINE OF SAID LAND CONVEYED TO CLARKE AND THE EASTERLY EXTENSION THEREOF, 135.66 FEET;
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THENCE NORTH 55.80 FEET TO THE SOUTHEAST CORNER OF SAID LAND CONVEYED TO JOHN MATTHEWS AND WIFE;
THENCE WEST ALONG THE SOUTH LINE OF SAID LAND CONVEYED TO MATTHEWS AND WIFE 145.66 FEET TO THE POINT OF BEGINNING.
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EXHIBIT G
FORM OF CITY PARCELS GRANT DEED
[On following pages]
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RECORDING REQUESTS BY
AND WHEN RECORDED RETURN TO:
Cottage Industries LLC
709 Randolph Ave.
Costa Mesa, CA 92626
Attention: Linda Sadeghi
APNs: 090-172-31 and 090-174-19
[SPACE ABOVE FOR RECORDER’S USE ONLY
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF GARDEN GROVE, a California municipal corporation (Grantor) hereby grants to COTTAGE INDUSTRIES LLC the real property located in the City of Garden Grove, County of Orange, State of California, that is described on “Exhibit A ” attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth bel
ow.
Dated: December __, 2022
CITY:
City Manager
Attest:
City Clerk
112/036217-0005
18601380.4 a12/21/22 -5-
EXHIBIT A TO GRANT DEED
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-31 (11301 Garden Grove Blvd., Garden Grove)
LOTS 19 AND 20 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-19 (11461 Garden Grove Blvd., Garden Grove) THE EAST 90 FEET OF THE SOUTH 125 FEET OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
112/036217-0005
18601380.4 a12/21/22 -6-
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the f
oregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (S eal)
112/036217-0005
18601380.4 a12/21/22 -7-
EXHIBIT H
FORM OF AUTHORITY PARCELS GRANT DEED
[On following pages]
112/036217-0005
18601380.4 a12/21/22 -8-
RECORDING REQUESTS BY
AND WHEN RECORDED RETURN TO:
Cottage Industries LLC
709 Randolph Ave.
Costa Mesa, CA 92626
Attention: Linda Sadeghi
APNs: 090-172-15, 090-174-07, and 090-174-06
[SPACE ABOVE FOR RECORDER’S USE ONLY
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the GARDEN GROVE HOUSING AUTHORITY, a public agency, corporate and politic (Grantor) hereby grants to COTTAGE INDUSTRIES LLC, the real property located in the City of Garden Grove, County of Orange, State of California, that is described on “Exhibit A” attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth bel
ow.
Dated: December __, 2022
CITY:
Executive Director
Attest:
City Clerk
112/036217-0005
18601380.4 a12/21/22 -9-
EXHIBIT “A” TO GRANT DEED
LEGAL DE SCRIPTION OF THE PROPERTY
That certain real property located in the City of Garden Grove, County of Orange, State of California more particularly described as follows:
1. APN 090-172-15 (12951 7th Street, Garden Grove)
LOT 18 OF TRACT NO. 431, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 49 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
2. APN 090-174-07 (11421 Garden Grove Blvd., Garden Grove) THE EAST 111.00 FEET OF THE WEST 121.00 FEET OF THE SOUTH 125.00 FEET, IN BLOCK 6 OF GARDEN GROVE HOME TRACT, IN THE CITY OF GARDEN GROVE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
3. APN 090- 174-06 (12942 8th Street, Garden Grove)
THAT PORTION OF BLOCK 6 OF THE GARDEN GROVE HOME TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 57 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WEST LINE OF SAID BLOCK 6, WHICH POINT IS 185.36 FEET SOUTHERLY FROM THE INTERSECTION OF SAID WEST LINE WITH THE WESTERLY EXTENSION OF THE SOUTH LINE OF LOT 8 OF TRACT NO. 631, AS SHOWN ON A MAP RECORDED IN BOOK 20, PAGE 26 OF SAID MISCELLANEOUS
MAPS, SAID POINT BEING THE SOUTHWEST CORNER OF THE LAND CONVEYED TO JOHN MATTHEWS AND WIFE BY DEED RECORDED JULY 12, 1958 IN BOOK 1668, PAGE 32 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY;
THENCE SOUTH ALONG THE WEST LINE OF SAID BLOCK 6 A DISTANCE OF 55.80 FEET TO A POINT 125.00 FEET NORTH OF THE SOUTHWEST CORNER OF SAID BLOCK 6;
THENCE EAST 10.00 FEET TO THE NORTHWEST CORNER OF LAND CONVEYED TO C.
LOWELL CLARKE AND WIFE BY DEED RECORDED JULY 21, 1943 IN BOOK 1197, PAGE 472 OF SAID OFFICIAL RECORDS;
THENCE CONTAINING EAST ALONG THE NORTH LINE OF SAID LAND CONVEYED TO CLARKE AND THE EASTERLY EXTENSION THEREOF, 135.66 FEET;
112/036217-0005
18601380.4 a12/21/22 -10-
THENCE NORTH 55.80 FEET TO THE SOUTHEAST CORNER OF SAID LAND CONVEYED TO JOHN MATTHEWS AND WIFE;
THENCE WEST ALONG THE SOUTH LINE OF SAID LAND CONVEYED TO MATTHEWS AND WIFE 145.66 FEET TO THE POINT OF BEGINNING.
112/036217-0005
18601380.4 a12/21/22 -11-
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the for
egoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (S eal)
October 2, 2023
Lisa Kim, City Manager
City of Garden Grove
11222 Acacia
Garden Grove, CA 92886
Re: Cottage Industries – Loan Maturity Request – via email [email protected]
Hello, Lisa:
Per our letter of March 14th, we’d like to restate our request for a maturity date extension on the loan originating December 2022 between Cottage Industries LLC and the City of Garden Grove for 5 parcels (11301 Garden Grove Blvd., 12951 7th, 12942 8th, 11421 Garden Grove Blvd., 11461 Garden Grove Blvd.)
The request is, first and foremost, to conjoin the 2022 loan to the maturity date of December 30, 2029 to coincide with our original Promissory Note on the 12 initial parcels. Currently the 2022 loan carries a balloon payment due in December of this year, 2023, two months hence.
As the City is aware, the purchase of the 5 leased parcels in December 2022 offers parking amenities which support the entitlement of the Cottage project (Phase I and II) and have already been improved by Cottage Industries. To enable future permanent financing of the project it is practical to wrap loan maturity notes to the same expiry date of December 30, 2029; all parcels being of one project.
Cottage Industries has been making monthly mortgage payments on all 17 parcels according to our agreements and will continue to do so. We are not asking for a deferred interest or payment schedule.
We thank you in advance for your consideration. Phase I, after facing delays and interruptions including an historical pandemic, supply chain issues, SCE lead times, banking volatility, etc. awaits tenant TI work and we intend to keep momentum by continuing Phase II improvements asap.
Regards,
Linda Sadeghi
[email protected]
Cc via email: Omar Sandoval, Greg Blodgett, Grace Lee
GARDEN GR2VE, CA
Agenda Item - 3.b.
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To: Lisa L. Kim From: William E. Murray
Dept.: City Manager Dept.: Public Works
Subject: Adoption of a Resolution
authorizing submittal of
applications for grant
opportunities offered by the
California Department of
Resources Recycling and
Recovery (CalRecycle).
(Action Item)
Date: 10/24/2023
OBJECTIVE
To request approval of a Resolution to authorize participation in various grants offered by the California Department of Resources Recycling and Recovery (CalRecycle).
BACKGROUND
CalRecycle offers various grants for cities and other government agencies to apply for and receive funding. These grants include Used Oil Recycling, Rubberized Asphalt Pavement, and others that relate to reducing, recycling and reusing solid waste generated in the state.
DISCUSSION
In the past, CalRecycle has required that resolutions be adopted for each grant application or a resolution with no end date. CalRecycle has changed their resolution requirements and now accepts the adoption of one resolution every five years to cover most grant applications.
Staff was notified in September 2023 that the City is eligible for up to $298,000 in CalRecycle Local Assistance Grant funds related to Senate Bill (SB) 1383. If successful, the funding will be used to help meet the City's procurement requirements under the regulations adopted pursuant to SB 1383 pertaining to organics recycling.
The attached resolution authorizes the Public Works Director to sign applications and all other agreements and required documentation necessary to apply for, and
implement any approved CalRecycle grant project for a term of five years.
FINANCIAL IMPACT
There is no impact to the General Fund. Grant funds will be used to meet SB 1383 requirements.
RECOMMENDATION
It is recommended that the City Council:
Approve the attached Resolution authorizing the submittal of grants to the Department of Resources Recycling and Recovery (CalRecycle).
By: Mark Ladney, Senior Program Specialist
ATTACHMENTS:
Description Upload Date Type File Name
City of Garden Grove
CalRecycle Resolution 10/12/2023 Resolution City_of_Garden_Grove_CalRecycle_Resolution.pdf
•
GARDEN GROVE CITY COUNCIL
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE
AUTHORIZING SUBMITTAL OF APPLICATION(S) FOR ALL CALRECYCLE GRANTS FOR
WHICH CITY OF GARDEN GROVE IS ELIGIBLE
WHEREAS, Public Resources Code sections 48000 et seq. authorize the Department of Resources Recycling and Recovery (CalRecycle) to administer various grant programs (grants) in furtherance of the State of California’s (state) efforts to reduce, recycle and reuse solid waste generated in the state thereby preserving landfill capacity and protecting public health and safety and the environment; and
WHEREAS, in furtherance of this authority CalRecycle is required to establish procedures governing the application, awarding, and management of the grants; and
WHEREAS, CalRecycle grant application procedures require, among other things, an applicant’s governing body to declare by resolution certain authorizations related to the administration of CalRecycle grants.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Garden Grove authorizes the submittal of application(s) to CalRecycle for all grants for which City of Garden Grove is eligible; and
1. The Public Works Director, or his/her designee, is hereby authorized and empowered to execute all grant documents, including but not limited to, applications, agreements, amendments and requests for payment, necessary to secure grant funds and implement the approved grant project.
2. That these authorizations are effective for five (5) years from the date of adoption of this resolution.
Agenda Item - 3.c.
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To: Lisa Kim From: Amir El-Farra
Dept.: City Manager Dept.: Police Chief
Subject: Adoption of a Resolution
approving signing authority
for a grant agreement with
the California Board of State
and Community Corrections.
(Action Item)
Date: 10/24/2023
OBJECTIVE
To request the City of Garden Grove City Council adopt a resolution authorizing the City Manager to sign the grant agreement with the California Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant Program (the Program).
BACKGROUND
The Program, established in the 2022 State Budget Act (Assembly Bill 154, Chapter 43, Statutes of 2022), provides approximately $242M for city police departments, sheriff departments, and probation departments to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, and/or cargo theft.
DISCUSSION
The California Board of State and Community Corrections Organized Retail Theft Prevention Grant Program eligible activities include three “Program Purpose Areas” (PPA):
PPA 1: Organized Retail Theft
PPA 2: Motor Vehicle or Motor Vehicle Accessory Theft
PPA 3: Cargo Theft
The Police Department’s successful grant application focused on Organized Retail Theft and Motor Vehicle/Motor Vehicle Accessory Theft, and the City was awarded approximately $1.3M for a License Plate Reader (LPR) program and monthly directed enforcement operations related to the grant purpose areas.
•
• •
FINANCIAL IMPACT
Acceptance of the grant provides the City approximately $1.3M for a License Plate Reader (LPR) program and monthly directed enforcement operations related to the grant purpose areas. There is no additional funding needs or matching requirements from the City.
RECOMMENDATION
It is recommended that the City Council:
Adopt a resolution authorizing the City Manager, or her designee, to sign the grant agreement with the California Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant Program, including any amendments thereof.
By: Courtney Cibosky, Fiscal Analyst
ATTACHMENTS:
Description Upload Date Type File Name
ORT Grant - Draft
Resolution 10/12/2023 Resolution
ORT_Grant-
BSCC_Resolution_signing_authority_CC_10-
12-2023_DRAFT.docx
•
GARDEN GROVE CITY COUNCIL
RESOLUTION NO. ****-23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE
AUTHORIZING THE CITY MANAGER TO SIGN THE GRANT AGREEMENT WITH THE
BOARD OF STATE AND COMMUNITY CORRECTIONS FOR THE ORGANIZED RETAIL
THEFT PREVENTION GRANT PROGRAM
WHEREAS, the City of Garden Grove desires to participate in the Organized Retail Theft Prevention (ORT) Grant Program funded through the State Budget Act and administered by the Board of State and Community Corrections ( BSCC);
WHEREAS, the City of Garden Grove is eligible to receive funds made available through the BSCC;
WHEREAS, BSCC ORT funding is available to California city police departments, sheriff departments, and probation departments to support local law enforcement agencies in preventing and responding to organized r etail theft, motor vehicle or motor vehicle accessory theft, or cargo theft. Inc.;
WHEREAS, it is necessary to execute Agreements and authorization to enter into extensions if approved by the BSCC;
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF GARDEN GROVE:
1. Does hereby authorize the City Manager of the City of Garden Grove or her designee to sign the Grant Agreement with the BSCC, including any amendments thereof.
2. Grant funds received under the Program shall not be used to supplant expenditures controlled by this body.
3. The City of Garden Grove agrees to abide by the terms and conditions of the Grant Agreement as set forth by the BSCC.
Adopted this *** day of **** 2023.
Agenda Item - 3.d.
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To: Lisa L. Kim From: William E. Murray
Dept.: City Manager Dept.: Public Works
Subject: Approval of the First
Amendment to Willowick
Golf Course Management
Agreement to extend the
term for three years. (Action
Item)
Date: 10/24/2023
OBJECTIVE
To obtain City Council approval for the first three-year extension of the Management Agreement for the operation of the Willowick Golf Course.
BACKGROUND
On April 8, 2019, the City Council approved a Management Agreement (“Agreement”) with Billy Casper Golf to operate the Willowick Golf Course for a term of five years, through June 30, 2024.
Section 2 of the Agreement stipulates that the parties can renew the Agreement for two successive periods of three years upon mutual consent of the parties.
In addition, on May 16, 2019, Billy Casper Golf assigned the Agreement with the City’s consent to Willowick Golf Management, LLC (“WGM”).
DISCUSSION
WGM has requested that the City approve the first three-year extension of the Agreement. The attached First Amendment would extend the Agreement for three years through June 30, 2027.
The First Amendment would further remove the termination fee that was understood to be applicable for the first term of the Agreement.
FINANCIAL IMPACT
There is no impact to the General Fund. The payment terms of the Agreement will remain as stipulated in the original Agreement.
RECOMMENDATION
It is recommended that the City Council:
Approve the First Amendment to the Willowick Golf Course Management Agreement; and
Authorize the City Manager to execute the Agreement, approve minor revisions as needed, and approve subsequent extensions of the Agreement.
By: Dan Candelaria, P.E., T.E., City Engineer
ATTACHMENTS:
Description Upload Date Type File Name
Amendment No. 1 10/12/2023 Backup Material
2023_Willowick_-
__First_Amendment-
Management_Agreement.pdf
•
•
1 FIRST AMENDMENT
TO
WILLOWICK GOLF COURSE
MANAGEMENT AGREEMENT
This FIRST AMENDMENT TO WILLOWICK GOLF COURSE MANAGEMENT AGREEMENT (the "First Amendment") is effective as of the 24th day of October, 2023, by and between The City of Garden Grove, a California municipal corporation, (“Owner”), and Willowick Golf Management, L.L.C., a Virginia limited liability company (“WGM”).
RECITALS:
A. Owner and WGM (pursuant to that certain Assignment and Assumption Agreement dated May 16, 2019 between Billy Casper Golf, LLC and Willowick Golf Management, LLC) are parties to that certain Management Agreement dated May 15, 2019 (the “Management Agreement”), concerning operation and management of that certain 18-hole golf course and related improvements known as “Willowick Golf Course” located in Santa Ana, California (the “Club”).
B. Owner and WGM have agreed to modify the Management Agreement, all in accordance with the terms and conditions herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS:
1. Recitals. The foregoing recitals are incorporated herein by this reference. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Management Agreement.
2. Effective Date. Notwithstanding anything to the contrary contained in the Management Agreement, the effective date of this First Amendment is August 1, 2023 (the "Effective Date").
3. Term. Notwithstanding anything to the contrary contained in the Management Agreement, pursuant to Section 3 of the Management Agreement, the parties agree to renew the Management Agreement for the first extension term of three (3) years (the “First Extension Term”). For the avoidance of doubt, the First Extension Term shall extend the expiration date of the Management Agreement to June 30, 2027.
4. Termination Fee; Owner’s Termination for Convenience. Notwithstanding anything to the contrary contained in the Management Agreement, Section 11D shall be amended by removing reference to the “Termination Fee.” For the avoidance of doubt, Owner shall not be req uired to pay a Termination Fee if the Agreement is terminated by Owner for convenience.
5. General.
(a) This First Amendment shall be governed by and construed in accordance with the laws of the State of California.
2 (b) Each person signing below represents and warrants that he or she is fully authorized to execute and deliver this First Amendment in the capacity set forth beneath his or her signature.
(c) This First Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. (d) This writing constitutes the entire agreement of the parties with respect to the subject matter hereof and may be amended only by written agreement signed by each party. (e) This First Amendment may be executed in two or more counterparts (including facsimile), each of which shall be deemed to be an original and all of which together shall be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the Golf Course Management Agreement to be executed on the day and year first written above.
OWNER:
CITY OF GARDEN GROVE
By: _________________________________
Its: _________________________________
Date: _______________________________
WGM:
Willowick Golf Management, L.L.C.
By: ___________________________________
Its: ___________________________________
Date: _________________________________
Agenda Item - 3.e.
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To: Lisa L. Kim From: Niki Wetzel
Dept.: City Manager Dept.: Community Development
Subject: Approval of Amendment No.
4 to agreements with Scott
Fazekas & Associates, Inc.,
CSG Consultants, Inc., and
The Code Group, Inc., for
on-call plan review and
Building Contractual Services
on an “as-needed” basis.
(Cost: $250,000 each
amendment) (Action Item)
Date: 10/24/2023
OBJECTIVE
For the City Council to approve Amendment No. 4 with: 1) Scott Fazekas & Associates, Inc. (SFA), 2) CSG Consultants, Inc. (CSG), and 3) The Code Group, Inc. (VCA) for the City’s on-call plan review or building contractual and related services on an “as-needed” basis.
BACKGROUND
The Community Development Department (CDD) utilizes third party services to supplement in-house staff or to fill temporary vacancies with contractual services on an “as-needed” basis. The intent is to achieve acceptable turnaround time and maintain expected levels of customer service.
At the beginning of the 23/24 fiscal year, CDD had nine (9) vacant budgeted positions of which three (3) were building inspectors. Since July, CDD has successfully conducted two (2) recruitments such that one (1) building inspector position is filled, and two (2) additional candidates are in background including a Code Enforcement Supervisor and a Senior Planner. Staff anticipates completing recruitments for a Code Enforcement Officer and two (2) building inspectors in the next six (6) months. In addition, contract staff are assisting at the building permit counter, a contract planner is assisting the Planning Division where there are currently three (3) vacancies, and overflow plan checks are being sent to a consultant for review given the many large projects currently planned and underway in the City.
DISCUSSION
For CDD, Building Inspectors have maintained a forty-eight (48) hour response time for inspections since August 2023. To maintain this service delivery level, staff is requesting amendments to three (3) consultant contract for additional funds to augment contract staff until recruitments are completed. CDD currently uses SFA for building plan review services; CSG for building permit counter, code enforcement, and planning services; and VCA for building inspection, building permit counter, and code enforcement services.
Based on the current and on-going needs, staff requests an increase in each contract during the current contract term to maintain acceptable service levels. This necessitates a contract amendment to increase each contract by $250,000 for a total not to exceed compensation in the amount of $500,000 each.
The cost of contract services are offset by salary savings experienced while budgeted positions remain vacant, and staff estimates salary savings of approximately $500,000 for this fiscal year. The cost of contract services are also offset by the collection of revenue through fees paid by applicants for plan review, entitlements, building inspection, and building permits. In addition, contract staff will be diminished over time should positions be filled more quickly, such that the fully authorized contract amount may not be expended.
CONCLUSION
In summary, CDD staff requests a contract amendment for $250,000 for each of three (3) firms (SFA, CSG, and VCA) used to conduct its core services to maintain service levels while recruitments are completed for budgeted positions.
FINANCIAL IMPACT
Amendment No. 4 would authorize an additional $750,000 across three (3) contracts for building contractual and related services. Funds would only be expended as necessary. The additional contract amount would be offset by $500,000 in salary savings from temporary vacant positions as well as fees paid for plan review, entitlement processing, building inspections, and building permits as collected from applicants.
RECOMMENDATION
It is recommended that the City Council:
Approve Amendment No. 4 for on-call Plan Review and Building Contractual Services to agreements with 1) Scott Fazekas & Associates, Inc., 2) CSG Consultants, Inc., and 3) The Code Group, Inc. to increase the compensation for each agreement in the amount of $250,000 per Agreement;
Approve appropriation of an additional $250,000 from the General Fund to the Building Plan Check/Permits GL (111-212-1195);
•
•
Authorize the City Manager, or her designees, to execute Amendment No. 4, and make minor modifications as appropriate thereto, on behalf of the City; and
Authorize the City Manager, or her designees, to exercise option year amendment terms, for the current year and available option years.
By: Kenneth Le, Administrative Analyst
ATTACHMENTS:
Description Upload Date Type File Name
SFA - Amendment No.
4 10/17/2023 Agreement [DRAFT]_Scott_Fazekas___Assoc__Inc_- _Amendment_No._4.doc
CSG - Amendment No.
4 10/17/2023 Agreement [DRAFT]_CSG_-_Amendment_No._4.doc VCA - Amendment No.
4 10/17/2023 Agreement [DRAFT]_The_Code_Group_Inca_(VCA)_- _Amendment_No._4.doc
•
•
1 CITY OF GARDEN GROVE
AMENDMENT NO. 4
This Amendment No. 4 is made and entered into this ________ of ________, 2023, by and between the CITY OF GARDEN GROVE , hereinafter referred to as "CITY", and SCOTT FAZEKAS & ASSOCIATES, INC hereinafter referred to as "CONTRACTOR".
WHEREAS, CONTRACTOR an d CITY entered into Contract No. B220293, dated September 28, 2021 for On-Call Building and Planning Contractual Services, as needed (the “Existing Contract”).
WHEREAS, CONTRACTOR and CITY desire to amend the Ex isting Contract as provided herein.
Now, therefore, it is mutually agreed, by and between the parties as follows:
Section 3.1., COMPENSATION - shall be amended as follows:
Contractor shall be compensated in accordance with the Rate and Services Structure set forth in Attachment “A” of the Existing Contract. The contract price is hereby increased by Two-Hundred Fifty Thousand dollars and 00/100 cents ($250,000.00), for a total not to exceed compensation amount of $1,000,000.00 to cover increased services requested by CITY.
Except as expressly amended hereby, all of the terms and conditions in the Existing Contract remain in full force and effect as originally executed.
[SIGNATURE PAGE FOLLOWS]
2 IN WITNESS WHEREOF, the parties have caused this Amendment No. 4 to the Existing Contract to be executed by their respective officers duly authorized on the date first written above.
Date: _____________ "CITY"
CITY OF GARDEN GROVE
By: ____________________________
City Manager
ATTESTED:
____________________________
City Clerk
Date: _______________________
"CONTRACTOR"
SCOTT FAZEKAS & ASSOCIATES, INC
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
If CONTRACTOR is a corporation, a
Corporate Resolution and/or
Corporate Seal are required. If a
partnership, Statement of
Partnership must be submitted to
CITY.
APPROVED AS TO FORM:
____________________________
Garden Grove City Attorney
________________________
Date
1 CITY OF GARDEN GROVE
AMENDMENT NO. 4
This Amendment No. 4 is made and entered into this ________ of ________, 2023, by and between the CITY OF GARDEN GROVE , hereinafter referred to as "CITY", and CSG Consultants, Inc., hereinafter referred to as "CONTRACTOR".
WHEREAS, CONTRACTOR an d CITY entered into Contract No. B220292, dated September 28, 2021 for On-Call Building and Planning Contractual Services, as needed (the “Existing Contract”).
WHEREAS, CONTRACTOR and CITY desire to amend the Existing Co ntract as provided herein.
Now, therefore, it is mutually agreed, by and between the parties as follows:
Section 3.1., COMPENSATION - shall be amended as follows:
Contractor shall be compensated in accordance with the Rate and Services Structure set forth in Attachment “A” of the Existing Contract. The contract price is hereby increased by Two-Hundred Fifty Thousand dollars and 00/100 cents ($250,000.00), for a total not to exceed compensation amount of $1,250,000.00 to cover increased services requested by CITY.
Except as expressly amended hereby, all of the terms and conditions in the Existing Contract remain in full force and effect as originally executed.
[SIGNATURE PAGE FOLLOWS]
2 IN WITNESS WHEREOF, the parties have caused this Amendment No. 4 to the Existing Contract to be executed by their respective officers duly authorized on the date first written above.
Date: _____________ "CITY"
CITY OF GARDEN GROVE
By: ____________________________
City Manager
ATTESTED:
____________________________
City Clerk
Date: _______________________
"CONTRACTOR"
CSG Consultants, Inc.
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
If CONTRACTOR is a corporation, a
Corporate Resolution and/or
Corporate Seal are required. If a
partnership, Statement of
Partnership must be submitted to
CITY.
APPROVED AS TO FORM:
____________________________
Garden Grove City Attorney
________________________
Date
1 CITY OF GARDEN GROVE
AMENDMENT NO. 4
This Amendment No. 4 is made and entered into this ________ of ________, 2023, by and between the CITY OF GARDEN GROVE , hereinafter referred to as "CITY", and THE CODE GROUP, INC. dba VCA CODE hereinafter referred to as "CONTRACTOR".
WHEREAS, CONTRACTOR an d CITY entered into Contract No. B220209, dated September 28, 2021 for On-Call Building and Planning Contractual Services, as needed (the “Existing Contract”).
WHEREAS, CONTRACTOR and CITY desire to amend the Existing Contract as provided herein.
Now, therefore, it is mutually agreed, by and between the parties as follows:
Section 3.1., COMPENSATION - shall be amended as follows:
Contractor shall be compensated in accordance with the Rate and Services Structure set forth in Attachment “A” of the Existing Contract. The contract price is hereby increased by Two-Hundred Fifty Thousand dollars and 00/100 cents ($250,000.00), for a total not to exceed compensation amount of $1,250,000.00 to cover increased services requested by CITY.
Except as expressly amended hereby, all of the terms and conditions in the Existing Contract remain in full force and effect as originally executed.
[SIGNATURE PAGE FOLLOWS]
2 IN WITNESS WHEREOF, the parties have caused this Amendme nt No. 4 to the Existing Contract to be executed by their respective officers duly authorized on the date first written above.
Date: _____________ "CITY"
CITY OF GARDEN GROVE
By: ____________________________
City Manager
ATTESTED:
____________________________
City Clerk
Date: _______________________
"CONTRACTOR"
THE CODE GROUP, Inc. dba VCA CODE
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
If CONTRACTOR is a corporation, a
Corporate Resolution and/or
Corporate Seal are required. If a
partnership, Statement of
Partnership must be submitted to
CITY.
APPROVED AS TO FORM:
____________________________
Garden Grove City Attorney
________________________
Date
Agenda Item - 3.f.
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To: Lisa L. Kim From: William E. Murray
Dept.: City Manager Dept.: Public Works
Subject: Award a contract to Ocean
Blue Environmental Services,
Inc., for the removal of
hazardous and biological
materials. (Cost: $190,000)
(Action Item)
Date: 10/24/2023
OBJECTIVE
To request City Council to award a contract to Ocean Blue Environmental Services, Inc. for the handling and removal of hazardous and non-hazardous biological waste (hazmat) on public properties.
BACKGROUND
The Public Works and Police Department continue to have an operational need for on-call environmental services to contain and mitigate any hazardous and non- hazardous waste and spills in accordance with environmental laws and regulations.
The City requires on-call emergency response services to be performed by a certified contractor that is available 24 hours a day, 365 days of the year for hazmat. On-call or scheduled coverage allows the City to maintain compliance with regulations regarding the clean-up of hazardous waste, such as: paint, oil, acid, spill clean-ups, bio-waste, and miscellaneous chemicals. The City has an existing agreement with Ocean Blue Environmental Services, Inc. that will expire on October 31, 2023.
DISCUSSION
The City of Los Angeles issued a public bid this year and subsequently awarded a contract with Ocean Blue Environmental Services, Inc. as the successful bidder on September 20, 2023. Ocean Blue Environmental Services, Inc. has agreed to enter into a piggyback agreement based on the City of Los Angeles procurement, for a period of three years. Ocean Blue Environmental Services, Inc has been a responsive contractor and has performed at an above average level of service. The City will benefit from the economy of scale.
FINANCIAL IMPACT
Cost for the service will not exceed $190,000 per year, and is included in the Public Works and Police departments' annual operating budget. The agreement will be in effect for three years.
RECOMMENDATION
It is recommended that City Council:
Award a contract to Ocean Blue Environmental Services, Inc., for hazardous materials and biological clean-ups within the City, for three (3) years, in the amount not to exceed $190,000 per year; and
Authorize the City Manager to sign the contract on behalf of the City, making minor modifications thereto as necessary.
By: Samuel Kim, P.E., Public Works Deputy Director / Water Services Manager
ATTACHMENTS:
Description Upload Date Type File Name
Agreement 10/16/2023 Agreement Ocean_Blue_Agreement_2023.docx Los Angeles Contract 10/16/2023 Backup Material 10-24-23_230000_-_POLA_- _Contract.pdf
•
•
1 PROFESSIONAL SERVICES AGREEMENT
(Ocean Blue Environmental Services, Inc.)
THIS AGREEMENT is made this day of , 2023, by the CITY OF GARDEN GROVE, a municipal corporation, ("CITY") and Ocean Blue Environmental Services, Inc., herein after referred to as “CONTRACTOR”.
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to Garden Grove C i t y Council authorization, dated October 24, 2023.
2. CITY desires to utilize the services of CONTRACTOR to furnish all materials, equipment, and labor for biological waste clean-up for the City of Garden Grove.
3. The services and prices provided by Contractor to City are in accordance with the services, equipment and the prices provided by Contractor in its successful public bid to the City of Los Angeles. Contractor agrees to honor the same pricing schedule that was originally submitted to the City of Los Angeles for the services outlined in this Agreement, which was adopted by the Los Angeles Board of Harbor Commissioners. A copy of the City of Los Angeles’ Agreement, Contract Number 23-9976 is attached as Attachment A and incorporated herein by reference.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term and Termination. The initial term of the agreement shall be from full execution through September 30, 2024, with an option to extend said agreement an additional two (2) years, for a total performance period of three (3) years.
Option years shall be exercised one (1) year at a time, at the sole option of the CITY. This agreement may be terminated by the CITY without cause. In such event, the CITY will compensate CONTRACTOR for work performed to date in accordance with the City of Los Angeles Agreement which is attached as Attachment A and is hereby incorporated by reference. Contractor is required to present evidence to support performed work.
2. Services to be Provided. The services to be performed and equipment to be provided by CONTRACTOR shall consist of as-needed services for the consolidated handling of hazardous and non-hazardous waste, including transportation, storage, recycling, and disposal of said waste, in compliance with state and federal hazardous waste, health and safety regulations and performing services that are in accordance with the services set forth in the City of Los
2 Angeles Agreement which is attached hereto as Attachment A and incorporated herein by reference.
3. Compensation. CONTRACTOR shall be compensated as follows:
3.1 AMOUNT. Total Compensation under this agreement shall not exceed (NTE) One Hundred Ninety Thousand Dollars ($190,000.00), per year, payable in arrears and in accordance with the rates set forth in the City of Los Angeles Agreement (Attachment A).
3.2 Payment. For work under this Agreement, payment shall be made per invoice for work completed. For extra work not a part of this Agreement, a written authorization by CITY will be required, and payment shall be based on schedule included in Attachment A.
3.3 Records of Expenses. CONTRACTOR shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to CITY.
3.4 Termination. CITY and CONTRACTOR shall have the right to terminate this agreement, without cause, by giving thirty (30) days written notice of termination. If the Agreement is terminated by CITY, then the provisions of paragraph 3 would apply to that portion of the work completed.
4. Insurance requirements.
4.1 COMMENCEMENT OF WORK. CONTRACTOR/CONSULTANT
shall not commence work under this Agreement until all certificates and endorsements have been received and approved by the CITY. All insurance required by this Agreement shall contain a Statement of Obligation on the part of the carrier to notify the CITY of any material change, cancellation, or termination at least thirty (30) days in advance.
The insurers shall waive their rights of subrogation against the CITY, its officers, officials, agents, employees, and volunteers.
4.2 WORKERS COMPENSATION INSURANCE. During the duration of this Agreement, CONTRACTOR and all subcontractors shall maintain Workers Compensation Insurance in the amount and type required by law, if applicable. The insurer shall waive its rights of subrogation against the CITY, its officers, officials, agents, employees, and volunteers.
4.3 INSURANCE AMOUNTS. CONTRACTOR shall maintain the following insurance for the duration of this Agreement:
3 (a) Commercial general liability in an amount of $5,000,000.00 per occurrence (claims made and modified occurrence policies are not acceptable); Insurance companies must be acceptable to CITY and have a Best’s Guide Rating of A-, Class VII or better, as approved by the CITY.
(b) Automobile liability in an amount of $5,000,000.00 combined single limit (claims made and modified occurrence policies are not acceptable); Insurance companies must be acceptable to CITY and have a Best’s Guide Rating of A-, Class VII or better, as approved by the CITY.
(c) Pollution/environmental liability (including remediation and cleanup costs, and mold, and asbestos) in the amount not less than $5,000,000; ( claims made and modified occurrence
policies are not acceptable ); Insurance companies must be acceptable to CITY and have AM Best’s Guide Rating of A -, Class VII or better, as approved by the CITY.
(d) Auto Pollution in an amount no less than $5,000,000; ( claims made and modified occurrence policies are not acceptable); Insurance companies must be acceptable to CITY and have AM Best’s Guide Rating of A -, Class VII or better, as approved by the CITY.
(e) Professional liability in an amount not less than $1,000,000.
Insurance companies must be admitted and licensed In
California and have a Best’s Guide Rating of A-Class VII or better, as approved by the City. If the policy is written on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of the agreement, and for a period of three (3) years from the date of the completion of services provided. In the event of termination, cancellation, or material change in the policy, professional/consultant shall obtain continuing insurance coverage for t he prior acts or omissions of professional/consultant during t he course of performing services under the term of the agreement. The coverage shall be evidenced either by a new policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the present or new carrier.
An On-Going and Completed Operations Additional I nsured Endorsement for the policy under section 4.3 (a) shall designate CITY, it’s officers, officials, employees, agents, and volunteers as additional insureds for liability arising out of work or operations performed by or on behalf of the CONTRACTOR. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s
4 requirements, as approved by the CITY.
An Additional Insured Endorsement for the policy under section 4.3 (b) shall designate CITY, it’s officers, officials, employees, agents, and volunteers as additional insureds for automobiles, owned, leased, hired, or borrowed by the CONTRACTOR. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY.
An Additional Insured Endorsement for the policy under section 4.3 (c) shall designate CITY, its officers, officials, employees, agents, and volunteers as additional insured under the
environmental/pollution/asbestos liability policy. CONTRACTOR shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY.
An MCS-90 for the policy under for the policy under section 4.3 (d) shall designate City, its officers, officials, employees, agents, and volunteers as additional insureds.
In the event any of CONTRACTOR’s underlying policies do not meet policy limits within the insurance requirements, CONTRACTOR shall provide, for the policy under 4.3 (f), the schedule of underlying policies for a follows f orm excess liability policy, states that the excess policy follows form on the insurance certificate, and an additional insured endorsement for the excess liability policy designating CITY, its officers, officials, employees, agents, and volunteers as additional insureds.
For any claims related to this Agreement, CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents, and volunteers. Any insurance or self - insurance maintained by the CITY, it s officers, officials, employees, agents, and volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
5. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable to CONTRACTOR in the event of any default or breach by CITY, or for any amount which may become due to CONTRACTOR.
6. Non-Discrimination. CONTRACTOR covenants there shall be no discrimination against any person or group due to race, color, creed, religion, sex, marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Agreement.
7. Independent Contractor. It is agreed to that CONTRACTOR shall act and be an independent contractor and not an agent or employee of the CITY, and shall
5 obtain no rights to any benefits which accrue to CITY'S employees.
8. Compliance with Law. CONTRACTOR shall comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local government.
9. Notices. All notices shall be personally delivered or mailed to the below listed address, or to such other addresses as may be designated by written notice.
These addresses shall be used for delivery of service of process.
a. (Address of Contractor)
Ocean Blue Environmental Services, Inc.
925 W. Esther Street
Long Beach, CA 90813
b. (Address of CITY) (with a copy to):
City of Garden Grove Garden Grove City Attorney
11222 Acacia Parkway 11222 Acacia Parkway
Garden Grove, CA 92840 Garden Grove, CA 92840
10. CONTRACTOR'S PROPOSAL. Contractor shall be bound by all the terms, conditions and specifications set forth in the Port of Los Angeles Agreement attached as Attachment A hereto. In the event of any inconsistency between the terms of the Port of Los Angeles Agreement and the Agreement, the Agreement shall govern.
11. Licenses, Permits, and Fees. At its sole expense, CONTRACTOR shall obtain a Garden Grove Business License, all permits, and licenses as may be required by this Agreement.
12. Familiarity with Work. By executing this Agreement, CONTRACTOR warrants that: (1) it has investigated the work to be performed; (2) it has investigated the site of the work and is aware of all conditions there; and (3) it understands the facilities, difficulties, and restrictions of the work under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY of this and shall not proceed, except at CONTRACTOR'S risk, until written instructions are received from CITY.
13. Time of Essence. Time is of the essence in the performance of this Agreement.
14. Limitations Upon Subcontracting and Assignment. The experience , knowledge, capability, and reputation of CONTRACTOR, its principals and employees were a substantial inducement for CITY to enter into this Agreement.
CONTRACTOR shall not contract with any other entity to perform the services required without written approval of the CITY. This Agreement may not be assigned voluntarily or by operation of law, without the prior written approval of CITY. If CONTRACTOR is permitted to subcontract any part of this Agreement,
6 CONTRACTOR shall be responsible to CITY for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and CITY. All persons engaged in the work will be considered employees of CONTRACTOR. CITY will deal directly with and will make all payments to CONTRACTOR.
15. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the parties are formally bound.
16. Indemnification. CONTRACTOR agrees to protect, defend, and hold harmless CITY and its elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damage to property, or interference with use of property, arising out of, or in any way connected with performance of the Agreement by CONTRACTOR, CONTRACTOR'S agents, officers, employees, subcontractors, or independent contractors h ired by CONTRACTOR. The only exception to CONTRACTOR'S responsibility to protect, defend, and hold harmless CITY, is due to the sole negligence of CITY, or any of its elective or appointive boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR.
17. Appropriations. This Agreement is subject to and contingent upon funds being appropriated therefor by the Garden Grove City Council for each fiscal year covered by the term of this Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the CITY.
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(Agreement Signature Block On Next Page)
7 IN WITNESS THEREOF, these parties have executed this Agreement on the day and year shown below.
Date:
ATTESTED:
"CITY"
CITY OF GARDEN GROVE
By:
City Manager
City Clerk
Date:
"CONTRACTOR"
Ocean Blue Environmental Services, Inc.
By:
Name:
Title:_
Date:
Tax ID No.
APPROVED AS TO FORM:
Contractor’s License:
Expiration Date:
Garden Grove City Attorney
Date
If CONTRACTOR is a corporation, a
Corporate Resolution and/or Corporate
Seal is required. If a partnership,
Statement of Partnership must be
submitted to CITY.
AGREEMENT NO. 23- qq7c;,
BETWEEN THE CITY OF LOS ANGELES
AND
OCEAN BLUE ENVIRONMENTAL SERVICES, INC.
THIS AGREEMENT ("Agreement") is made and entered into by and between the CITY OF LOS ANGELES, a municipal corporation ("City") acting by and through its Board of Harbor Commissioners ("Board"), and OCEAN BLUE ENVIRONMENTAL SERVICES, INC., a California corporation, whose address is 925 West Esther Street, Long Beach, CA 90813. ("Consultant").
WHEREAS, City requires professional, scientific, expert or technical services of a temporary and occasional character, including as-needed services for consolidated handling of hazardous waste through full-service waste disposal companies for the transportation, storage, recycling, and disposal of City waste; and WHEREAS, Consultant services will assure compliance with state and federal hazardous waste and health and safety regulations; and
WHEREAS, Consultant, by virtue of training and experience, is well-qualified to provide such services to the City; and
WHEREAS, by reason of the nature and length of the services required by City, it is not economical or feasible for City to have such services performed by its own employees;
NOW, THEREFORE, in consideration of the covenants, terms and conditions hereinafter contained to be kept and performed by the respective parties hereto, it is mutually agreed as follows:
1. Incorporation of Recitals.
1.1 The recitals to this Agreement above are incorporated herein and made a part hereof.
2. Services To Be Performed By Consultant.
2.1 All of the services Consultant shall perform for City are set forth in Exhibit "A" hereto and hereinafter shall be referred to as "Scope of Work."
2.2 Consultant's performance of Tasks and, as applicable, Subtasks shall occur as follows:
a. The Director of the Environmental Management Division of City's Harbor Department ("Director") shall issue a written document in the form attached hereto as Exhibit "B" that has been signed by the Deputy Executive Director of Marketing & Customer Relations for the City's Harbor Department and that specifies, without limitation: the Task or Subtask to be performed; the 1
specific services required in connection with such Task or Subtask; the deliverables required in the performance of such Task or Subtask; the schedule for the performance of such Task or Subtask; authorized personnel who may perform the Task or Subtask; authorized compensation for such Task or Subtask; and MBE/WBE/SBENSBE /DVBE/OBE utilization ("Directive"). b. Consultant, to reflect its agreement with all the terms of such Directive, shall sign, date and return such Directive to Director. c. Following Director's receipt of the Directive signed by Consultant, Director shall issue a written document in the form attached hereto as Exhibit "C" that has been signed by Director and that authorizes Consultant to commence performance of the services contemp lated by such Directive ("Notice to Proceed").
2.3 Consultant acknowledges and agrees that it lacks authority to perform and that Director lacks authority to request the performance of any services outside the Scope of Work. Consultant further acknowledges and agrees that any services it performs outside the Scope of Work or a Directive, or in the absence of both a Directive and a Notice to Proceed, are performed as a volunteer and shall not be compensable under this Agreement.
2.4 The Scope of Work shall be performed by personnel qualified and competent in the sole reasonable discretion of Director, whether performance is undertaken by Consultant or third-parties with whom Consultant has contracted on the effective date of this Agreement, whom Director may subsequently approve in writing ("Subconsultants"), or as listed on Project Directives. Obligations of this Agreement, whether undertaken by Consultant or Subconsultants, are and shall be the responsibility of Consultant. Consultant acknowledges and agrees that this Agreement creates no rights in Subconsultants with respect to City and that obligations that may be owed to Subconsultants, including, but not limited to, the obligation to pay Subconsultants for services performed, are those of Consultant alone. Upon Director's written request, Consultant shall supply City's Harbor Department with all agreements between it and its Subconsultants.
2.5 Consultant, at its sole cost and expense, shall furnish all services, materials, equipment, subsistence, transportation and all other items necessary to perform the Scope of Work. As between City and Consultant, Consultant is solely responsible for any taxes or fees which may be assessed against it or its employees resulting from performance of the Scope of Work, whether social security, payroll or other, and regardless of whether assessed by the federal government, any state, the City, or any other governmental entity. City shall pay applicable state or local fees necessary to obtain approval, plan checks, permits and variances for the Project.
2.6 Director shall resolve in his or her sole reasonable discretion any issues or questions which may arise during the term of this Agreement as to the quality or acceptability of Consultant's performance of the Scope of Work, the manner of performance, the interpretation of direction given to Consultant, the acceptable completion of a Directive, and the amount of compensation due. Upon written notice from Director, Consultant shall assign replacement personnel and/or shall remedy any deficient services or work product to Director's reasonable satisfaction and at 2
Consultant's sole cost and expense. Compliance with the requirements of this Section
2.6 is a condition to payment by City of compensation to Consultant pursuant to this Agreement.
2.7 Consultant's representative responsible for administering this Agreement, Manny Ramirez ("Project Manager"), shall not be changed without Director's written approval. Director may, for any reason in his or her sole reasonable discretion, require Consultant to substitute a new Project Manager. If City requests such a substitution, the substitute Project Manager shall expend whatever time and costs necessary to become familiar with the Project and any portions of the Scope of Work already performed at Consultant's sole cost and expense.
2.8 If the law requires Consultant, in performing the Scope of Work, to follow a different standard of care than the ordinary standard of care applied to a reasonable person, Consultant shall perform such services with the degree of diligence, skill, judgment, and care applicable to Consultant's profession ("professional standard").
Consultants not required to follow a professional standard shall exercise the degree of care required of ordinary persons.
2.9 For portions of the Scope of Work to be performed on a time and material basis, Consultant shall assign personnel, whether employees or Subconsultants, with the lowest applicable hourly rate who are fully competent to provide the services required. If Consultant finds it necessary to have any portion of the Scope of Work, which this Section 2.9 would require to be performed by personnel at a lower rate, to be performed by personnel at a higher rate, Consultant shall, nevertheless, invoice City at the lower rate.
2.10 Consultant shall promptly consider and implement, to the reasonable satisfaction of Director, any written comments of Director.
2.11 Consultant shall review information provided by City's Harbor Department.
Any such information reasonably believed by Consultant to be inaccurate, incomplete or inapplicable shall be brought promptly to the attention of Director in writing.
2.12 Consultant shall perform the Scope of Work as expeditiously as possible and at the time or times required by the Director. Time is of the essence in the performance of the Scope of Work. Consultant's failure to conform to the schedule set forth in a project directive shall entitle City to have services completed by others, shall obligate Consultant to pay City City's cost to undertake completion of such services, and shall authorize City to withhold such amounts from any payments otherwise due to Consultant. Consultant's failure to timely perform in accordance with the schedule set forth in a project directive shall result in economic losses to the City, including, but not limited to, the timely bidding and awarding of contracts, completion of the project in connection with which Consultant's services are rendered and the use of such project by City's Harbor Department, its tenants and the public.
2.13 Consultant and all its personnel working on-site in the Harbor District will be required to watch a training video and submit a sign-in sheet. Exhibit "J." 3
3. Services To Be Performed By City.
3.1 City's Harbor Department shall provide Consultant with available and/or necessary horizontal and vertical survey data in the form of field notes or electronic format as maintained by City's Harbor Department, access to public records, prints of existing aerial photos, existing planimetric maps, environmental documents, existing oceanographic studies and existing soil reports in the vicinity, previous specifications and other information which, in the sole reasonable discretion of Director, shall assist in completing the Scope of Work.
3.2 Consultant shall provide Director with reasonable advance written notice if it requires access to premises of City's Harbor Department. Subsequent access rights, if any, shall be granted to Consultant at the sole reasonable discretion of Director, specifying conditions Consultant must satisfy in connection with such access.
Consultant acknowledges that such premises may be occupied or used by tenants or contractors of City and that access rights granted by City's Harbor Department to Consultant shall be consistent with any such occupancy or use.
3.3 City shall not be obligated to provide information and/or services except as specified in this Agreement.
4. Effective Date and Term.
4.1 After approval by City in accordance with Section 245 of City's Charter, the effective date of this Agreement shall be the date of its execution by City's Harbor Department Executive Director ("Executive Director"). Consultant acknowledges that Section 245 of City's Charter furnishes to the City Council of City ("Council") the right to review this Agreement and that this Agreement shall not become effective until after the expiration of the fifth Council meeting day after approval of this Agreement by Board, or the date of Council's approval of the Agreement.
4.2 The term of this Agreement shall not exceed three (3) years, commencing on the Agreement's effective date. This Agreement shall be in full force and effect until:
a. Director determines that Consultant has completed the Scope of Work and provides Consultant written notice thereof; or b. Board, in its sole discretion, terminates this Agreement, which termination shall become effective five (5) calendar days following Executive Director's transmittal of written notice advising Consultant of such action by Board. Upon receipt of such written notice, Consultant shall cease the performance of the Scope of Work. Consultant shall be entitled to compensation only for services actually performed prior to such termination. Director, in his or her sole reasonable discretion, shall determine the amount of services actually performed and shall allocate a portion of the total compensation due Consultant accordingly. If Board so terminates this Agreement, Consultant shall deliver all drawings, specifications, plans, reports, stu_dies, calculations, estimates, 4
documents and other work product produced pursuant to this Agreement to City in an organized, usable form with all items properly labeled to the degree of detail specified by the Director. No compensat ion shall be due Consultant until it complies with the requirements of this paragraph; or
c. Three (3) years has elapsed from the effective date of the Agreement.
4.3. Notwithstanding the foregoing, this Agreement is subject to the provisions of City's Charter which, among other things, precludes City from making any expenditure of funds or incurring any liability, including contractual commitments, in excess of the amount appropriated therefor. Board, in awarding this Agreement, is expected to appropriate sufficient funds to meet the estimated expenditure of funds through June 30 of the current fiscal year and to make further appropriations in each succeeding fiscal year during the life of the Agreement. However, Board is under no legal obligation to do so. City, its boards, officers, and employees are not bound by the terms of this Agreement or obligated to make payment thereunder in any fiscal year in which the Board does not appropriate funds therefor. Consultant is not entitled to any compensation in any fiscal year in which funds have not been appropriated for the Agreement by Board.
Although Consultant is not obligated to perform any services required by the Scope of Work in any fiscal year in which no appropriation for the Agreement has been made, Consultant shall resume performance of the Scope of Work on the same terms and conditions for a period of sixty (60) days after the end of the fiscal year if an appropriation therefor is approved by Board within that sixty (60) day period. Consultant is responsible for maintaining all insurance and bonds during this sixty (60) day period.
The time for performance shall be extended during this period until the appropriation is made; however, such extension of time is not compensable.
If in any subsequent fiscal year funds are not appropriated by Board for this Agreement, this Agreement shall be terminated. However, such termination shall not relieve the parties of liability for any obligation previously incurred.
5. Compensation.
5.1 For the full and satisfactory performance of the Scope of Work, City shall pay Consultant and Consultant shall accept a sum not to exceed Three Million Two Hundred Fifty Thousand Dollars ($3,250,000.00). The total sum payable under this Agreement shall be determined by Project Directives and Consultant acknowledges that final compensat ion may not reach the maximum sum allowed for herein.
5.2 Compensation payable under this Agreement for payment for labor, travel, per diem, materials, supplies, transportation, and all other direct and indirect costs and expenses incurred by Consultant ("Expenses") are listed in Exhibit "D." No markups or premiums shall be applied to services performed by Subconsultants unless Exhibit "D" expressly so allows.
5
5.3 Compensation payable under this Agreement shall be on a (1) Fixed Fee, (2) Time and Materials, (3) Equal Payment or (4) any combination of the three, as may be more particularly specified in a Project Directive.
a. Fixed Fee. Lump sum compensation for satisfactory performance as may be specified in a particular Project Directive.
b. Time and Materials Fee. Consultant shall be paid based on the actual time expended in the performance of Tasks using the applicable rates set forth in Exhibit "D." Consultant will also be reimbursed for materials and other out-of-pocket expenses at cost. The rates identified in Exhibit "D" state the maximum rates Consultant shall charge under this Agreement. No premium rates, including, but not limited to, overtime or hazardous duty premiums, shall be charged unless authorized in Exhibit "D."
c. Equal Payment Fee. Consultant shall be paid equal amounts over time throughout a particular Project Directive, up to the stated fixed amount. d. Prevailing Wage. Projects that are subject to prevailing wage will be identified in the Project Directive. For such projects, Consultant, Subconsultants, and/or suppliers shall provide no less than the prevailing wage, working conditions and practices generally observed in private industries in the Consultant's, Subconsultant's, or supplier's geographical area for such work.
5.4 Each month during the term of this Agreement, as a prerequisite to payment for services, Consultant shall submit a written invoice to City's Harbor Department for services performed during the prior month, accompanied by such records and receipts as may be required by Section 5.5. Each such invoice shall bear a City Business Tax Registration Number and a Taxpayer Identification Number. Each invoice shall identify all services performed by Subconsultants. If payments are to be based on the performance of established milestones, Consultant shall bill as each milestone is completed, but not more often than once a month.
Consultant shall submit invoices for payment in the format that contains the information specified in Exhibit "E," and that includes the following certification:
"I certify under penalty of perjury that the above bill is just and correct according to the terms of Agreement No. ___ and that payment has not been received. I further certify that I have complied with the provisions of the City's Living Wage Ordinance.
"
(signed)
5.5 Consultant shall submit supporting documents with each invoice, which may include, but not be limited to, provider invoices, receipts, payrolls, and time sheets.
Consultant is not required to submit support for direct costs items of $25 or less. 6
5.6 If Consultant utilizes Subconsultants to perform aspects of the Scope of Work, Consultant shall submit to City, with each monthly invoice, a Monthly Subconsultant Monitoring Report in the form attached hereto as Exhibit "F." Consultant shall provide an explanation for any item that does not meet or exceed the participation levels required by a particular Directive, with specific plans and recommendations for improved subconsultant utilization. Invoices will not be paid without a completed Monthly Subconsultant Monitoring Report form.
5. 7 All sums due and payable to Consultant shall be paid as soon as, in the ordinary course of City business, the same may be reviewed and approved.
For payment and processing, all invoices shall be submitted electronically, as directed in the Notice to Proceed and Project Directive.
6. Recordkeeping and Audit Rights.
6.1 Consultant shall keep and maintain full, complete and accurate books of accounts and records of the services performed under this Agreement in accordance with generally accepted accounting principles consistently applied. Consultant's books and records shall be readily accessible to and open for inspection and copying at the premises by City, its auditors or other authorized representatives. Notwithstanding any other provision of this Agreement, failure to do so shall constitute a conclusive waiver of any right to compensation for such services as are otherwise compensable hereunder.
Such books and records shall be maintained by Consultant for a period of three (3) years after completion of services to be performed under this Agreement or until all disputes, appeals, litigation or claims arising from this Agreement have been resolved.
6.2 During the term of this Agreement, City may audit, review and copy any and all writings (as that term is defined in Section 250 of the California Evidence Code) of Consultant and Subconsultants arising from or related to this Agreement or performance of the Scope of Work, whether such writings are (a) in final form or not, (b) prepared by Consultant, Subconsultants or any individual or entity acting for or on behalf of Consultant or a Subconsultant, and (c) without regard to whether such writings have previously been provided to City. Consultant shall be responsible for obtaining access to and providing writings of Subconsultants. Consultant shall provide City at Consultant's sole cost and expense a copy of all such writings within fourteen (14) calendar days of a written request by City. City's right shall also include inspection at reasonable times of the Consultant's office or facilities which are engaged in the performance of the Scope of Work. Consultant shall, at no cost to City, furnish reasonable facilities and assistance for such review and audit. Consultant's failure to comply with this Section 6.2 shall constitute a material breach of this Agreement and shall entitle City to withhold any payment due under this Agreement until such breach is cured.
7. Consultant Is An Independent Contractor.
Consultant, in the performance of the Scope of Work, is an independent contractor and not an agent or employee of City. Consultant shall not represent itself as 7
an agent or employee of the City and shall have no power to bind the City in contract or otherwise.
8. Business Tax Registration Certificate.
City's Office of Finance requires the implementation and enforcement of Los Angeles Municipal Code Section 21.09 et seq. This section provides that every person, other than a municipal employee, who engages in any business within City, is required to obtain the necessary Business Tax Registration Certificate and pay business taxes.
The City Controller has determined that this Code Section applies to consulting firms that are doing work for City's Harbor Department. See https://finance.lacity.org/how reg ister-btrc .
9. Indemnification.
Except for the sole negligence or willful misconduct of the City, or any of its Boards, Officers, Agents, Employees, Assigns and Successors in Interest, Consultant undertakes and agrees to defend, indemnify and hold harmless the City and any of its Boards, Officers, Agents, Employees, Assigns, and Successors in Interest from and against all suits and causes of action, claims, losses, demands and expenses, including, but not limited to, attorney's fees (both in house and outside counsel) and cost of litigation (including all actual litigation costs incurred by the City, including but not limited to, costs of experts and consultants), damages or liability of any nature whatsoever, for death or injury to any person, including Consultant's employees and agents, or damage or destruction of any property of either party hereto or of third parties, arising in any manner by reason of the negligent acts, errors, omissions or willful misconduct incident to the performance of this Agreement by Consultant or its subcontractors of any tier. Rights and remedies available to the City under this provision are cumulative of those provided for elsewhere in this Agreement and those allowed under the laws of the United States, the State of California, and the City.
10. Insurance.
10.1 Insurance procured by Consultant on Behalf of Consultant In addition to and not as a substitute for, or limitation of, any of the indemnity obligations imposed by Section 9, Consultant shall procure and maintain at its sole cost and expense and keep in force at all times during the term of this Agreement the following insurance:
(a) Commercial General Liability Insurance
Commercial general liability insurance covering personal and advertising injury, bodily injury, and property damage providing contractual liability, independent contractors, products and completed operations, and premises/operations coverage written by an insurance company authorized to do business in the State of California rated VII, A- or better in Best's Insurance Guide (or an alternate guide acceptable to City if Best's is not available) within Consultant's normal limits of liability but not less than Five Million Dollars ($5,000,000.00) combined single limit for injury or claim. Said 8
limits shall provide first dollar coverage except that Executive Director may permit a self insured retention or self-insurance in those cases where, in his or her judgment, such retention or self-insurance is justif ied by the net worth of Consultant. The retention or self-insurance provided shall provide that any other insurance maintained by the Harbor Department shall be excess of Consultant's insurance and shall not contribute to it. In all cases, regardless of any deductible or retention, said insurance shall contain a defense of suits provision and a severability of interest clause. Each policy shall name the City of Los Angeles Harbor Department, its officers, agents and employees as Primary additional insureds.
Where Consultant's operations involve work within 50 feet of railroad track, Consultant's Commercial General Liability coverage shall have the railroad exclusion deleted.
(b) Automobile Liability Insurance
Automobile liability insurance written by an insurance company authorized to do business in the State of California rated VII, A- or better in Best's Insurance Guide (or an alternate guide acceptable to City if Best's is not available) within Consultant's normal limits of liability but not less than Five Million Dollars ($5,000,000.00) covering damages, injuries or death resulting from each accident or claim arising out of any one claim or accident. Said insurance shall protect against claims arising from actions or operations of the insured, or by its employees. Coverage shall contain a defense of suits provision and a severability of interest clause. Each policy shall name the City of Los Angeles Harbor Department, its officers, agents and employees as Primary additional insureds.
(c) Workers' Compensation and Employer's Liability
Consultant shall certify that it is aware of the provisions of Section 3700 of the California Labor code which requires every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and that Consultant shall comply with such provisions before commencing the performance of the tasks under this Agreement. Coverage for claims under U.S. Longshore and Harbor Workers' Compensation Act shall be included.
Consultant shall submit Workers' Compensation policies whether underwritten by the state insurance fund or private carrier, which provide that the public or private carrier waives its right of subrogation against the City in any circumstance in which it is alleged that actions or omissions of the City contributed to the accident. Such Worker's Compensation and occupat ional disease requirements shall include coverage for all employees of Consultant, and for all employees of any subcontractor or other vendor retained by Consultant.
(d) Professional Liability Insurance
Consultant is required to provide Professional Liability insurance with respect to negligent or wrongful acts, errors or omissions, or failure to render services in connection with the professional services to be provided under this Agreement. This insurance shall protect against claims arising from professional services of the insured, or by its 9
employees, agents, or contractors, and include coverage (or no exclusion) for contractual liability.
Consultant certifies that it now has profess ional liability insurance in the amount of Five Million Dollars ($5,000,000.00), which covers work to be performed pursuant to this Agreement and that it will keep such insurance or its equivalent in effect at all times during performance of said Agreement and until two (2) years following the completed term of this Agreement.
Notice of occurrences of claims under the policy shall be made to the Risk Manager of City's Harbor Department with copies to the City Attorney's office. (e) Ocean Marine Liability Insurance
Consultant shall procure and maintain insurance against claims for injuries to persons or damages to property which may arise from or in connections with Consultant's operations. The cost of the insurance shall be borne by Consu ltant. The coverage shall be written by an insurance company authorized to do business in the State of California rated VII, A- or better in Best's Insurance Guide (or an alternate guide acceptable to City if Best's Rating is not available). Coverage shall include, but not be limited to:
(i) Hull and machinery coverage up to the value of the vessel(s); (ii) Protection and Indemnity coverage with combined single limits of One Million Dollars ($1,000,000.00) per occurrence for bodily injury, illness, death, loss of or damage to the property of another, and Jones Act risks or equivalent thereto internationally.
(iii) Ship repairers legal liability to cover loss, damage or expenses to any property temporarily in the Consultant's care, custody or control.
Coverage shall contain a defense of suits provision and a severability of interest clause. Each policy shall name the City of Los Angeles Harbor Department, its officers, agents and employees as Primary additional insureds.
(f) Pollution Liability Insurance or Environmental Impairment Liability Consultant shall procure and maintain throughout the term of this Agreement, at its cost, Pollution Liability coverage written by an insurance company authorized to do business in the State of California rated VII, A- or better in Best's Insurance Guide (or an alternate guide acceptable to City if Best's Rating is not available), with Consultant's normal limits of liability but not less than Five Million Dollars ($5,000,000) combined single limit for injury or death or property damage arising out of each accident or occurrence covering Consultant's services under this Agreement. Said limits shall provide first dollar coverage except that Executive Director may permit a self-insured retention or self-insurance in those cases where, in his or her judgment, such retention or self-insurance is justified by the net worth of Consultant. Consultant's pollution liability shall include coverage for losses caused by pollution conditions that arise from 10
the operation of Consultant described under the scope of services of this Agreement and include: (a) on-site and off-site coverage for bodily injury, sickness, disease, mental anguish or shock sustained by a person, including death; (b) on-site and off-site property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean up costs, and the loss of use of tangible property that has not been physically injured or destroyed; (c) on-site and off-site defense including costs, charges and expenses incurred in the investigation adjustment or defense of claims for such compensatory damages.
Non-owned disposal site coverage shall also be provided if Consultant is handling, storing or generating hazardous materials or any material/substance otherwise regulated under governmental laws/regulations.
The insurance provided shall contain a severability of interest clause and shall provide that any other insurance maintained by the Harbor Department shall be excess of Consultant's insurance and shall not contribute with it. In all cases, regardless of any deductible or retention, said insurance shall contain a defense of suits provision and severability of interest clause, have no exclusions for Contractual Liability, have no restrictions for Sole Liability of Consultant, and shall not contain any other exclusions contrary to this Agreement.
Each policy shall name the City of Los Angeles Harbor Department, its officers, agents and employees as Primary and Non-Contributory additional insureds.
10.2 Insurance Procured by Consultant on Behalf of City In addition to and not as a substitute for, or limitation of, any of the indemnity obligations imposed by Section 9, and where Consultant is required to name the City of Los Angeles Harbor Department, its officers, agents and employees as Primary additional insureds on any insurance policy required by this Agreement, Consultant shall cause City to be named as an additional insured on all policies it procures in connection with this Section 10. Consultant shall cause such additional insured status to be reflected in the original policy or by additional insured endorsement (CG 2010 or equivalent) substantially as follows:
"Notwithstanding any inconsistent statement in the policy to which this endorsement is attached, or any endorsement or certificate now or hereafter attached hereto, it is agreed that City, Board, their officers, agents and employees, are additional insureds hereunder, and that coverage is provided for all contractual obligations, operations, uses, occupations, acts and activities of the insured under Agreement No. _, and under any amendments, modificat ions, extensions or renewals of said Agreement regardless of where such contractua l obligations, operations, uses, occupations, acts and activities occur.
"The policy to which this endorsement is attached shall provide a 10-days notice of cancellation for nonpayment of premium, and a 30-days notice of cancellation for any other reasons to the Risk Manager.
"The coverage provided by the policy to which this endorsement is attached is 11
primary coverage and any other insurance carried by City is excess coverage; "In the event of one of the named insured's incurring liability to any other of the named insureds, this policy shall provide protection for each named insured against whom claim is or may be made, including claims by other named insureds, in the same manner as if separate policies had been issued to each named insured. Nothing contained herein shall operate to increase the company's limit of liability; and "Notice of occurrences or claims under the policy shall be made to the Risk Manager of City's Harbor Department with copies to the City Attorney's Office."
10.3 Required Features of Coverages
Insurance procured by Consultant in connection with this Section 10 shall include the following features:
(a) Acceptable Evidence and Approval of Insurance
Electronic submission is the required method of submitting Consultant's insurance documents. Consultant's insurance broker or agent shall register with the City's online insurance compliance system KwikComply at https://kwikcomply.org/ and submit the appropriate proof of insurance on Consultant's behalf.
Upon request by City, Consultant shall furnish a copy of the binder of insurance and/or a full certified policy for any insurance policy required herein. This obligation is intended to, and shall, survive the expiration or earlier termination of this Agreement. (b) Carrier Requirements
All insurance which Consultant is required to provide pursuant to this Agreement shall be placed with insurance carriers authorized to do business in the State of California and which are rated A-, VII or better in Best's Insurance Guide. Carriers without a Best's rating shall meet comparable standards in another rating service acceptable to City.
(c) Notice of Cancellation
For each insurance policy described above, Consultant shall give a 10-day prior notice of cancellation or reduction in coverage for nonpayment of premium, and a 30- day prior notice of cancellation or reduction in coverage for any other reason, by written notice via registered mail and addressed to the City of Los Angeles Harbor Department, Attn: Risk Manager and the City Attorney's Office, 425 S. Palos Verdes Street, San Pedro, California 90731.
(d) Modification of Coverage
Executive Director, at his or her sole reasonable discretion, based upon recommendation of independent insurance consultants to City, may increase or decrease amounts and types of insurance coverage required hereunder at any time during the term hereof by giving ninety (90) days' prior written notice to Consultant. 12
(e) Renewal of Policies
At least thirty (30) days prior to the expiration of any policy required by this Agreement, Consultant shall renew or extend such policy in accordance with the requirements of this Agreement and direct their insurance broker or agent to submit to the City's online insurance compliance system KwikComply at https://kwikcomply.org/ a renewal endorsement or renewal certificate or, if new insurance has been obtained, evidence of insurance as specified above. If Consultant neglects or fails to secure or maintain the insurance required above, Executive Director may, at his or her own option but without any obligation, obtain such insurance to protect City's interests. The cost of such insurance shall be deducted from the next payment due Consultant. (f) Limits of Coverage
If Consultant maintains higher limits than the minimums required by this Agreement, City requires and shall be entitled to coverage for the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
10.4 Right to Self-Insure
Upon written approval by the Executive Director, Consultant may self-insure if the following conditions are met:
1. Consultant has a formal self-insurance program in place prior to execution of this Agreement. If a corporation, Consultant must have a formal resolution of its board of directors authorizing self insurance.
2. Consultant agrees to protect the City, its boards, officers, agents and employees at the same level as would be provided by full insurance with respect to types of coverage and minimum limits of liability required by this Agreement.
3. Consultant agrees to defend the City, its boards, officers, agents and employees in any lawsuit that would otherwise be defended by an insurance carrier.
4. Consultant agrees that any insurance carried by Department is excess of Consultant's self-insurance and will not contribute to it.
5. Consultant provides the name and address of its claims administrator.
6. Consultant submits its most recently filed 10-Q and its 10-K or audited annual financial statements for the three most recent fiscal years prior to Executive Director's consideration of approval of self insurance and annually thereafter.
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7. Consultant agrees to inform Department in writing immediately of any change in its status or policy which would materially affect the protection afforded Department by this self-insurance.
8. Consultant has complied with all laws pertaining to self-insurance.
10.5 Accident Reports
Consultant shall report in writing to Executive Director within fifteen (15) calendar days after it, its officers or managing agents have knowledge of any accident or occurrence involving death of or injury to any person or persons, or damage in excess of Five Hundred Dollars ($500.00) to property, occurring upon the premises, or elsewhere within the Port of Los Angeles if Consultant's officers, agents or employees are involved in such an accident or occurrence. Such report shall contain to the extent available ( 1) the name and address of the persons involved, (2) a general statement as to the nature and extent of injury or damage, (3) the date and hour of occurrence, (4) the names and addresses of known witnesses, and (5) such other information as may be known to Consultant, its officers or managing agents.
11. Personal Services Agreement.
11.1 During the term of this Agreement, Consultant agrees that it will not enter into other contracts or perform any work without the written permission of the Executive Director where the work may conflict with the interests of City's Harbor Department.
11.2 Consultant acknowledges that it has been selected to perform the Scope of Work because of its experience, qualifications and expertise. Any assignment or other transfer of this Agreement or any part hereof shall be void provided, however, that Consultant may permit Subconsultant(s) to perform portions of the Scope of Work in accordance with Section 2.3. All Subconsultants whom Consultant utilizes, however, shall be deemed to be its agents. Subconsultants' performance of the Scope of Work shall not be deemed to release Consultant from its obligations under this Agreement or to impose any obligation on the City to such Subconsultant(s) or give the Subconsultant(s) any rights against the City.
12. Confidentiality.
Consultant shall not disclose any proprietary or confidential information of City to any third party or parties during or after the term of this Agreement without the prior written consent of City. The data, documents, reports, or other materials which contain information relating to the review, documentat ion, analysis and evaluation of the Scope of Work and any recommendat ions made by Consultant relative thereto shall be considered confidential and shall not be reproduced, altered, used or disseminated by Consultant or its employees or agents in any manner except and only to the extent necessary in the performance of the work under this Agreement. In addition, Consultant is required to safeguard such information from access by unauthorized personnel.
13. Affirmative Action.
Consultant shall not discriminate in its employment practices against any employee or applicant for employment because of employee's or applicant's race, 14
religion, national origin, ancestry, sex, age, sexual orientation, disability, marital status, domestic partner status, or medical condition. The provisions of Section 10.8.4 of the Los Angeles Administrative Code are incorporated herein by this reference and made a part of this Agreement. All subcontracts awarded shall contain a like nondiscrimination provision. See Exhibit "G."
14. SmallNery Small Business Enterprise Program and Local Business Preference Program.
It is the policy of City's Harbor Department to provide Small Business Enterprises (SBE), Very Small Business Enterprises (VSBE), and Minority-Owned, Women-Owned, Disabled Veteran Business Enterprises and all Other Business Enterprises (MBE/WBE/DVBE/OBE) an equal opportunity to participate in the performance of all City contracts in all areas where such contracts afford such participation opportunities.
Consultant shall assist City's Harbor Department in implementing this policy and shall use its best efforts to afford the opportunity for SBEs, VSBEs, MBEs, WBEs, DVBEs, and OBEs to achieve participation in subcontracts where such participation opportunities present themselves and attempt to ensure that all available business enterprises, including SBEs, VSBEs, MBEs, WBEs, DVBEs, and OBEs, have equal participation opportunities which might be presented under this Agreement. See Exhibit "H.H
It is also the policy of the Department to support an increase in local and regional jobs. The Department's Local Business Preference Program aims to benefit the Southern California region by increasing jobs and expenditures within the local and regional private sector. Consultant shall assist the City in implementing this policy and· shall use its best efforts to afford the opportunity for Local Business Enterprises to achieve participation in subcontracts where such participation opportunities present themselves.
NOTE: Prior to being awarded a contract with the City, Consultant and all Subconsultants must be registered on the City's Contracts Management and Opportunities Database, Regional Alliance Marketplace for Procurement (RAMP), at http://www.RAMPLA.org .
15. Conflict of Interest.
Consultant has reviewed and understands the provisions of Section 1090 et seq. and Section 87100 et seq. of the California Government Code relating to conflict of interest of public officers and employees, as well as the Los Angeles Municipal Code ("LAMC") Municipal Ethics and Conflict of Interest provisions of Section 49.5.1 et seq. and the Conflict of Interest Codes of the City and City's Harbor Department. All parties hereto agree that they are unaware of any financial or economic interest of any public officer or employee of City relating to this Agreement. Notwithstanding any other provision of this Agreement, it is further understood and agreed that if such financial interest does exist at the inception of this Agreement, City may immediately terminate this Agreement by giving written notice thereof. Consultant's signature of this Agreement constitutes its affirmation that any former employees of City or City's Harbor Department that are employed by Consultant and that assist in performing the Scope of Work shall be free of any conflicts of interest with respect to City and City's Harbor Department.
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During the term of this Agreement, Consultant shall inform the Department in writing when Consultant, or any of its Subconsultants, employs or hires in any capacity, and for any length of time, a person who has worked for the Department as a Commissioner, officer or employee. Said notice shall include the individual's name and current position and their prior position and years of employment with the Department.
Written notice shall be provided by Consultant to the Department within thirty (30) days of the employment or hiring of the individual.
16. Compliance with Applicable Laws.
Consultant's activities under this Agreement, including its performance of the Scope of Work, shall comply with all federal, state, municipal, local and departmental laws, ordinances, rules, regulations, and orders. If in any instance a City standard is more stringent than a state, federal or other requirement, the City standard shall be followed unless the Director notifies the Consultant otherwise in writing, in which case the requirements of said notification shall apply.
17. Trademarks, Copyrights and Patents.
Consultant shall promptly and fully inform Director in writing of any patents, trademarks or copyrights related to services provided under this Agreement or patent trademark or copyright disputes, existing or potential, which Consultant has knowledge of, relating to any idea, design, method, material, equipment or other matter connected to this Agreement. Consultant agrees to save, keep, hold harmless, protect and indemnify City and any of its officers or agents from any damages, cost, or expenses in law or equity from infringement of any patent, trademark, service mark or copyright of any person or persons, or corporations in consequence of the use by City of any materials supplied by Consultant in the performance of this Agreement.
18. Proprietary Information.
Writings, as that term is defined in Section 250 of the California Evidence Code (including, without limitation, drawings, specifications, estimates, reports, records, reference material, data, charts, documents, renderings, computations, computer tapes or disks, submittals and other items of any type whatsoever, whether in the form of writing, figures or delineations), which are obtained, generated, compiled or derived in connection with this Agreement (collectively hereafter referred to as "property"), are owned by City as soon as they are developed, whether in draft or final form. City has the right to use or permit the use of property and any ideas or methods represented by such property for any purpose and at any time without compensation other than that provided in this Agreement. Consultant hereby warrants and represents that City at all times owns rights provided for in this section free and clear of all third-party claims whether presently existing or arising in the future, whether or not presently known.
Consultant need not obtain for City the right to use any idea, design, method, material, equipment or other matter which is the subject of a valid patent, unless such patent is owned by Consultant or one of its employees, or its Subconsultant or the Subconsultant's employees, in which case such right shall be obtained without additional compensation. Whether or not Consultant's initial proposal or proposals made during this Agreement are accepted by City, it is agreed that all information of any 16
nature whatsoever connected with the Scope of Work, regardless of the form of communication, which has been or may be given by Consultant, its Subconsultants or on either's behalf, whether prior or subsequent to this Agreement becoming effective, to the City, its boards, officers, agents or employees, is not given in confidence.
Accordingly, City or its designees may use or disclose such information without liability of any kind, except as may arise under valid patents.
19. Royalty-Free License.
If research or development is furnished in connection with this Agreement and if, in the course of such research or development, patentable work product is produced by Consultant, its officers, agents, employees, or Subconsultants, the City shall have, without cost or expense to it, an irrevocable, non-exclusive royalty-free license to make and use, itself or by anyone on its behalf, such work product in connection with any activity now or hereafter engaged in or permitted by City. Upon City's request, Consultant, at its sole cost and expense, shall promptly furnish or obtain from the appropriate person a form of license satisfactory to the City. It is expressly understood and agreed that, as between City and Consultant, the referenced license shall arise for City's benefit immediately upon the production of the work product, and is not dependent on the written license specified above. City may transfer such license to its successors in the operation or ownership of any real or personal property now or hereafter owned or operated by City.
20. City's Disclosure Obligations.
Consultant acknowledges that City is subject to laws, rules and/or regulations generally requiring it to disclose records upon request, which laws, rules and/or regulations include, but are not limited to, the California Public Records Act (California Government Code Sections 6250 et seq.) ("Disclosure Laws").
21. Notices.
In all cases where written notice is to be given under this Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail, postage prepaid. When so given, such notice shall be effective from the date of mailing of the same. For the purpose hereof, unless otherwise provided by notice in writing from the respective parties, notice to City's Harbor Department shall be addressed to Executive Director, Los Angeles Harbor Department, P.O. Box 151, San Pedro, California 90733- 0151, and notice to Consultant shall be addressed to it at the address set forth above.
Nothing herein contained shall preclude or render inoperative service of such notice in the manner provided by law.
22. Taxpayer Identification Number ("TIN").
The Internal Revenue Service (IRS) requires that all consultants and suppliers of materials and supplies provide a TIN to the party that pays them. Consultant declares that it has an authorized TIN which shall be provided to the Department prior to payment under this Agreement. No payments will be made under this Agreement without a valid TIN.
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23. Service Contractor Worker Retention Policy and Living Wage Requirements.
The Board of Harbor Commissioners of the City of Los Angeles adopted Resolution Nos. 19-8419 and 19-8420 on January 24, 2019, adopting the provisions of Los Angeles City Ordinance No. 185356 relating to Service Contractor Worker Retention ("SCWR"), Section 10.36 et seq. of the Los Angeles Administrative Code, as the policy of City's Harbor Department. Further, Charter Section 378 requires compliance with the City's Living Wage requirements as set forth by ordinance, Section
10.37 et seq. of the Los Angeles Administrative Code. Consultant shall comply with the policy wherever applicable. Violation of this provision, where applicable, shall entitle City to terminate this Agreement and otherwise pursue legal remedies that may be available.
24. Wage and Earnings Assignment Orders/Notices of Assignments.
Consultant and Subconsultants shall comply with all applicable state and federal employment reporting requirements for employees.
Consultant and Subconsultants shall certify that the principal owner(s) are in compliance with any Wage and Earnings Assignment Orders and Notices of Assignments applicable to them personally. Consultant and Subconsultants shall fully comply with all lawfully served Wage and Earnings Assignment Orders and Notices of Assignments in accordance with Section 5230 et seq. of the California Family Code.
25. Equal Benefits Policy.
Board adopted Resolution No. 6328 on January 12, 2005, agreeing to adopt the provisions of Los Angeles City Ordinance No. 172,908, as amended, relating to Equal Benefits, Section 10.8.2.1 et seq. of the Los Angeles Administrative Code, as a policy of City's Harbor Department. Consultant shall comply with the policy wherever applicable.
Violation of this policy shall entitle the City to terminate any agreement with Consultant and pursue any and all other legal remedies that may be available. See Exhibit "I."
26. Compliance With Los Angeles City Charter Section 470(c)(12).
The Consultant, Subconsultants, and their Principals are obligated to fully comply with City of Los Angeles Charter Section 470(c)(12) and related ordinances, regarding limitations on campaign contributions and fundraising for certain elected City officials or candidates for elected City office if the agreement is valued at $100,000 or more and requires approval of a City elected official. Additionally, Consultant is required to provide and update certain information to the City as specified by law. Any Consultant subject to Charter Section 470(c)(12), shall include the following notice in any contract with a subconsultant expected to receive at least $100,000 for performance under this Agreement:
Notice Regarding Los Angeles Campaign Contribution and Fundraising Restrictions
As provided in Charter Section 470(c)(12) and related ordinances, you are a subconsultant on Harbor Department Agreement No.
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_ _ __ . Pursuant to City Charter Section 470(c)(12), subconsultant and its principals are prohibited from making campaign contributions and fundraising for certain elected City officials or candidates for elected City office for 12 months after the Agreement is signed. Subconsultant is required to provide to Consultant names and addresses of the subconsultant's principals and contact information and shall update that information if it changes during the 12 month time period. Subconsultant's information must be provided to Consultant within 10 business days. Failure to comply may result in termination of the Agreement or any other available legal remedies including fines. Information about the restrictions may be found at the City Ethics Commission's website at http://ethics.lacity.org/ or by calling 213-978-1960.
Consultant, Subconsultants, and their Principals shall comply with these requirements and limitations. Violation of this provision shall entitle the City to terminate this Agreement and pursue any and all legal remedies that may be available.
27. State Tidelands Grants.
This Agreement is entered into in furtherance of and as a benefit to the State Tidelands Grant and the trust created thereby. Therefore, this Agreement is at all times subject to the limitations, conditions, restrictions and reservations contained in and prescribed by the Act of the Legislature of the State of California entitled "An Act Granting to the City of Los Angeles the Tidelands and Submerged Lands of the State Within the Boundaries of Said City," approved June 3, 1929 (Stats. 1929, Ch. 651), as amended, and provisions of Article VI of the Charter of the City of Los Angeles relating to such lands. Consultant agrees that any interpretation of this Agreement and the terms contained herein must be consistent with such limitations, conditions, restrictions and reservations.
28. Construction of Agreement.
This Agreement shall not be construed against the party preparing the same, shall be construed without regard to the identity of the person who drafted such and shall be construed as if all parties had jointly prepared this Agreement and it shall be deemed their joint work product; each and every provision of this Agreement shall be construed as though all of the parties hereto participated equally in the drafting hereof; and any uncertainty or ambiguity shall not be interpreted against any one party. As a result of the foregoing, any rule of construction that a document is to be construed against the drafting party shall not be applicable.
29. Titles and Captions.
The parties have inserted the section titles in this Agreement only as a matter of convenience and for reference, and the section titles in no way define, limit, extend or describe the scope of this Agreement or the intent of the parties in including any particular provision in this Agreement.
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30. Modification in Writing.
This Agreement may be modified only by written agreement of all parties. Any such modifications are subject to all applicable approval processes required by, without limitation, City's Charter and City's Administrative Code.
31. Waiver.
A failure of any party to this Agreement to enforce the Agreement upon a breach or default shall not waive the breach or default or any other breach or default. All waivers shall be in writing.
32. Governing Law.
This Agreement is made and entered into in the State of California and shall in all respects be construed, interpreted, enforced and governed under and by the laws of the State of California, without reference to choice of law rules.
33. Severability.
Should any part, term, condition or provision of this Agreement be declared or determined by any court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law, public policy, or city charter, the validity of the remaining parts, terms, conditions or provisions of this Agreement shall not be affected thereby, and such invalid, illegal or unenforceable part, term, condition or provision shall be treated as follows: (a) if such part, term, condition or provision is immaterial to this Agreement, then such part, term, condition or provision shall be deemed not to be a part of this Agreement; or (b) if such part, term, condition or provision is material to this Agreement, then the parties shall revise the part, term, condition or provision so as to comply with the applicable law or public policy and to effect the original intent of the parties as closely as possible.
34. Jurisdiction.
The parties hereto consent to the jurisdiction of the State of California for the enforcement of this Agreement.
35. Integrated Agreement.
This Agreement contains the entire understanding and agreement between the parties hereto with respect to the matters referred to herein. No other representations, covenants, undertakings, or prior or contemporaneous agreements, oral or written, regarding such matters which are not specifically contained, referenced, and/or incorporated into this Agreement by reference shall be deemed in any way to exist or bind any of the parties. Each party acknowledges that it has not been induced to enter into the Agreement and has not executed the Agreement in reliance upon any promises, representations, warranties or statements not contained, referenced, and/or incorporated into the Agreement. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT IS INTENDED TO BE, AND IS, AN INTEGRATED AGREEMENT. 20
36. Exhibits: Sections.
All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement, whether or not actually attached. To the extent the terms of an exhibit conflict with or appear to conflict with the terms of the body of the Agreement, the terms of the body of the Agreement shall control. References to sections are to sections of this Agreement unless stated otherwise.
37. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute together one and the same instrument.
II II/
II I II
II I II
I II II
(Signature page follows)
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date next to their signatures.
Date: 07/25 2023
APPROVED AS TO FORM AND LEGALITY
___ _ ri._ ~_)-_1 ____ _ ,2023
HYDEE SOTO FELDSTEIN, City Attorney
STEVEN Y. OTERA, General Counsel
- -~
By _ __..=---------
MINAH PARK, Deputy
22 THE CITY OF LOS ANGELES
HARBOR D eARTMENT
Attest:~Y\. 9-"::)0 ~
ecretary ~ -
OCEAN BLUE ENVIRONMENTAL
SERVICES, INC.
By: d ~
Name: JUSTIN LEE
Title: PRESIDENT
Attest: ~(_
Name: MOONHO LEE
Title: VICE PRESIDENT, CFO
FUNDS AVAILABLE STAMP
OCEAN BLUE ENVIRONMENTAL SERVICES, INC.
EMERGENCY RESPONSE AND HAZARDOUS WASTE MANAGEMENT SERVICES Verified by:
Budget FY: 54260-0330 54260-lO00s
23/24 $ 330,000 $ 392,000
24/25 $ 361,000 $ 542,000
25/26 $ 361,000 $ 452,000
26/27 $ 361 000 $ 451 000
TOTAL $ 1 413 000 $ 1 837 000
Agreement Total: $3,250,000
For Acct/Budget Div. Use Only
ff'
Digitally signed by Joanna
Ames
Date: 2023.0 7.24 09:38:44
-07'00'
Ofgitally signed by Frank
u,
Verified Funds Available:
Date: 2023.07.24 13~52:40
--07'00'
Date Approved: 7/24/23
Scope of Work
The Emergency Response and Hazardous Waste Management program responds to both emergency and non-emergency chemical spills, releases of regulated and/or hazardous materials, and abandoned wastes within the Port of Los Angeles. In this function, EMO responds to requests for services from other Harbor Department divisions, State, and Federal agencies, including · the United States Coast Guard (USCG), Department of Fish & Wildlife, United States Environmental Protection Agency (USEPA), and the Regional Water Quality Control Board.
The Harbor Department requires the services of qualified contractors to support and perform all phases of on-site waste management, such as containment of spills, and cleanup of releases or abandoned waste on an as-needed basis in the following categories:
A. Emergency Response
Emergency Response is the ability to respond to a spill or uncontrolled release of a hazardous or regulated material on an emergency basis at any time, 24 hours per day, 7 days per week (including holidays), and provide containment and cleanup as required by local, state and federal regulatory agencies, and as directed by the Harbor Department.
The contractor should have the ability to arrive on-scene within 30 to 45 minutes of notification. These spills may involve containment and cleanup operations in storm drains, pipelines, groundwater, and in other water bodies, including navigable waters of the state, such as the ocean, harbors, lakes, reservoirs, streams, canals, and rivers.
B. Unidentified Waste
Unidentified wastes are unlabeled containers with unknown substances deposited on Harbor Department property that require removal.
1. The contractor must have the ability to identify, package, and transport the unidentified wastes deposited on Harbor Department properties or right-of-way for recycling, treatment, or disposal.
2. Response to this waste stream will usually be required during normal working hours.
C. Waste Management
Waste Management is the ability to identify, categorize, remove, package and recycle, or dispose of hazardous, non-hazardous, and regulated waste that are generated through the normal work process of maintaining Harbor Department property or equipment.
1. Response to this waste stream will usually be required during normal working hours.
1 EXHIBIT A
2. The contractor will be required to be on-site at a Harbor Department facility at a mutually agreed-upon time with an authorized Department employee.
3. Waste management services may include, but are not limited to:
a. Removal and excavation of contaminated debris;
b. Laboratory packing of chemicals;
c. Packaging and consolidating hazardous materials;
d. Identifying and packaging unidentified materials;
e. Characterizing and profiling of waste prior to disposal; and f. Transporting waste for disposal.
4. For the purpose of this Agreement, regulated and/or hazardous materials include, but are not limited to:
a. Asbestos, crude oil and petroleum products, including fuel oil, mineral oil, gasoline, diesel;
b. Corrosive liquids, including acid, alkaline, and ammonia solutions, c. Polychlorinated Biphenyl's (PCB) and PCB-contaminated materials; d. Mercury, lead, and other metals;
e. Ferric Chloride;
f. Chlorine;
g. Waste tires;
h. Treated wood;
i. Bio-hazard waste;
j. Sewage; and
k. Other environmental regulated media.
D. Miscellaneous Services
In addition to emergency response, EMO routinely assists other divisions with:
• Management and disposal of both hazardous and non-hazardous wastes generated by Harbor Department maintenance operations and construction projects;
• Collection and disposal of waste oil from collection sheds set up for commercial fishing boats;
• Abatement of lead-based paint and asbestos-containing materials in/on Harbor Department structures;
• Cleaning of facilities contaminated by biological wastes; • Pickup and disposal of dead marine mammals from harbor waters; • Storm drain cleaning and maintenance;
• Support the Harbor Department's Derelict Boat Removal program by providing removal and disposal of hazardous or regulated waste; • Pressure-washing/steam cleaning;
• Mold abatement;
• Assist Construction and Maintenance staff on projects that involve confined space;
2
• Remove and dispose of Underground Storage Tanks (UST); and • Waste management prior to and during Harbor Department sponsored events.
Required Equipment
The contractor must have, or have immediate access to, the following equipment and services:
• TWIC/24-7 Emergency response;
• Stainless steel vacuum truck;
• Black iron vacuum trucks steel - 20 BBL, 70 BBL, 120 BBL; • Emergency response unit - Level B;
• Blood & Bio cleanup;
• Registered waste tire hauler; and
• Boat(s) for waterside spills.
It is recommended that the contractor have, or have immediate access to, the following equipment and services:
• Roll-off bins and trailer;
• Tandem roll-off trailer;
• Flat bed box van;
• Self-powered work barge;
• Booming vessel and work skiff - w/ Hull & Machinery Insurance; • Portable containment boom system - 1000' of boom with hydraulic power pack;
• Oil spill skimmers - drum style, mop style;
• Skim packs;
• Mercury vapor analyzer and Organic Vapor Analyzer (calibrated); • Haz Mat kit - chemical identification;
• Sufficient amount/length of containment boom (at least 10,000 feet); • Super sucker/jetter combos;
• Salvage and diving services; and
• Trauma scene practitioner with license to haul medical waste.
General Requirements
The Contractor shall perform all tasks in accordance with all applicable local, state, and federal regulations. Proposer must also perform activities in compliance with all appropriate elements of Harbor Department policies, tariffs, and programs (e.g., Construction and Maintenance Division's Environmental Management System (EMS), storm water control measures, Water Resources Action Plan, Clean Air Action Plan, etc.).
The Contractor must be capable of responding to regulated and/or hazardous materials discharge to inland, river/canal, and coastal/ocean environments.
A. Laboratory Services
3
The Contractor must have access to the services of a California State Certified environmental laboratory equipped to perform waste characterization analyses mandated by the Code of Federal Regulations (CFR) 40 and Code of California Regulations (CCR) Title 22 and in accordance with USEPA Solid Waste (SW)-846 test methods of evaluation of solid wastes, physical/chemical methods. The capabilities of the lab must include, but are not limited to, analysis by Atomic Absorption (AA), AA - flame, AA Spectroscopy - Graphite furnace, Fluorescence, Gas Chromatography (GC), and GC-Mass Spectrometry for all regulated organics, X-ray Fluorescence, Organic Vapor Analyzer, Inductively Coupled Plasma/Atomic Emission Spectroscopy, pH, and flash-point testing.
B. Disposal and Transportation
The Contractor shall provide disposal services of a fully permitted waste disposal facility or facilities capable of handling non-hazardous and hazardous wastes, including California regulated wastes, Resource Conservation and Recovery Act (RCRA) Federal regulated wastes, and liquid/solid waste under the Toxic Substances Control Act.
All subcontractors and all identified hazardous or regulated waste recycling and disposal sites must be reviewed and approved for environmental acceptability and regulatory compliance with applicable state and federal laws, at the sole discretion of EMO. All recycling, treatment, storage, and/or disposal facilities must operate under Federal and State licenses/permits.
The Contractor shall ensure that all wastes handled, stored or transported are properly contained and labeled for shipment in accordance with all applicable State and Federal regulations.
The Contractor shall provide transportation of hazardous waste to a treatment, storage or disposal facility by a licensed and permitted hazardous waste transporter.
The Contractor shall furnish all labor, materials, and equipment as well as technical expertise, supervision, and management to effectively identify, package, clean up, and transport the various regulated, non-hazardous and hazardous waste for recycling, treatment, and/or disposal.
C. Manifest Documents
The Contractor shall provide properly prepared non-hazardous and hazardous waste manifest documents for waste to be transported to disposal or treatment facilities.
On non-emergency or routine jobs, the Contractor shall coordinate with Harbor Department staff and hazardous waste disposal or treatment facilities to provide hazardous waste profiles and manifests to the Harbor Department. 4
Project Management
Selected Contractors will work directly under the supervision of a Project Manager from the Environmental Management Division.
Project Deliverables
The Contractor must submit a monthly summary report describing all work assignments, including a running total of costs. The report must be cumulative. EMO will provide the format for the report.
5
Exhibit B
Sample Form of Directive
(Date)
(Consultant)
(Consultant address)
(City, State, Zip)
Attention: (Project Manager)
Subject: Directive No. 1
Project Name
Pursuant to Section 2.2(a) of Agreement No. ___ , after receipt of a written Notice to Proceed signed by the Director of the Environmental Management Division, Consultant shall proceed with the following:
Task Services Authorized Amount
Consultant shall provide all required task, services, and deliverables in accordance with Exhibit "A" to Agreement No. __
Consultant shall complete the work within _ calendar days from City's transmittal of its written Notice to Proceed.
Consultant shall undertake the following MBE/WBE/SBENSBE/DVBE/OBE utilization in connection with its performance of this Directive No. _ .
Consultant acknowledges that the terms and conditions of Agreement No. _ govern this Directive and that its signature below reflects its agreement with the terms and conditions of this Directive No.
If you have any questions, please contact ____ _ at (310) 732-__ _ ACCEPTED:
(Consultant Name)
Consultant
Date:
Michael DiBernardo
Deputy Executive Director
Date:
EXHIBIT B
(Date)
(Consultant)
(Consultant address)
(City, State, Zip)
Exhibit C
Form of Notice to Proceed
Attention: (Project Manager)
Subject: Notice to Proceed - Directive No. _
Project Name
This is to notify and direct you to commence performance of the subject Directive.
Enclosed is your set of the executed Directive documents.
If you have any questions, please contact ____ at (310) 732-__ Very truly yours,
Director, Environmental Management Division
Enclosure: Directive No.
EXHIBIT C
~
ocEn;UoLuE
ENVIRONMENTRL. SERVICES. INC.
FOR PORT OF LOS ANGELES ONL V
1. EFFECTIVE JANUARY 2023
HOURLY RATE
STRAIGHT OVER- PREMIUM
CLASSIFICATION TIME TIME TIME
0001 PROJECT MANAGER 107.80 136.60 136.50
0002 HEAL TH & SAFETY MANAGER 107.80 136.60 136.60
0003 SUPERVISOR 100.60 129.40 129.40
0004 CHEMIST/ INDUSTRIAL HYGIENIST 100.60 129.40 129.40 0005 LEAD TECHNICIAN 71.90 100.60 100.60
0006 EQUIPMENT OPERA TOR 71.90 100.60 100.60
0007 TECHNICIAN 1 69.60 91.70 91.70
0008 TECHNICIAN 2 (ILWU) 98.00 147.00 147.00
2. CERTIFIED HAZARDOUS WASTE TRANSPORTATION VEHICLES
HOURLY RATE
0009 UTILITY TRUCK WITRAFFIC CONTROL LIGHTS 57.50
0010 GEAR TRUCK W/LIFTGATE 57.50
0011 EMERGENCY RESPONSE UNIT 136.60
0012 CREW VAN 28.80
0013 DUMP TRAILER 10,000 GVW 57.50
DAILY RATE
0014 BACKHOE/EXTENDHOE "4X4" 310 610.70
0015 FORKLIFT 5,000LB WITH TRAILER 287.40
0016 FRONT END LOADER 4 CUBIC YD BUCKET 1,041.80
0017 EXCAVATOR JD 220 1,041.80
0018 HEAVY EQUIPMENT TRAILER 25' 359.30
0019 4X4 ATV HONDA 400cc 287.40
0020 HEAVY EQUIPMENT MOBILIZATION ONE WAY 359.30
3. CERTIFIED HAZARDOUS WASTE TRANSPORTATION VEHICLES WITH DRIVERS/OPERATOR
HOURLY RATE
0021 VACUUM TRAILER - 20 BBL 79.10
0022 HYDRO EXCAVATOR 1000 CFM* - SIT 129.40
0023 HYDRO EXCAVATOR 1000 CFM* - OIT 189. 70
0024 HYDRO EXCAVATOR 1000 CFM* - P/T 189. 70
0025 WATER TRUCK - 2500 GALLON * SIT 129.40
0026 WATER TRUCK - 2500 GALLON * OIT 189.70
0027 WATER TRUCK - 2500 GALLON * P/T 189.70
0028 VACUUM TRUCK - 70 BBL W/ ROPER PUMP* SIT 129.40
0029 VACUUM TRUCK - 70 BBL W/ ROPER PUMP* OIT 189.70
0030 VACUUM TRUCK - 70 BBL W/ ROPER PUMP* PIT 189. 70
0031 VACUUM TRUCK - 120 BBL* SIT 150.20
0032 VACUUM TRUCK - 120 BBL* O/T 197.60
0033 VACUUM TRUCK - 120 BBL* PIT 197.60
0034 VACUUM TRUCK -120 BBL STAINLESS STEEL* SIT 166.00
0035 VACUUM TRUCK - 120 BBL STAINLESS STEEL* OIT 213.40 0036 VACUUM TRUCK - 120 BBL STAINLESS STEEL* PIT 213.40 0037 ROLL-OFF TRUCK* SIT Page 2 of 9 142.30
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
EXHIBITD
~
OCEH;~DLUE
ENVIRONMENTAL. SERVICES. INC.
0038 ROLL-OFF TRUCK* OIT
0039 ROLL-OFF TRUCK* PIT
0040 TRASH TRUCK* S/T
0041 TRASH TRUCK* OIT
0042 TRASH TRUCK* P/T
0043 ROLL-OFF TRUCK AND TRAILER* SIT
0044 ROLL-OFF TRUCK AND TRAILER* OIT
0045 ROLL-OFF TRUCK AND TRAILER* PIT
0046 END DUMP TRUCK - 24 TON* SIT
0047 END DUMP TRUCK - 24 TON* OIT
0048 END DUMP TRUCK - 24 TON* PIT
0049 40' BOX VAN W/ TRACTOR* SIT
0050 40' BOX VAN W/ TRACTOR* OIT
0051 40' BOX VAN W/ TRACTOR* P/T
0052 40' FLATBED W/ TRACTOR* SIT
0053 40' FLATBED W/ TRACTOR* OIT
0054 40' FLATBED W/ TRACTOR* PIT
0055 JETTER/ SUPERSUCKER COMBO* SIT
0056 JETTER/ SUPERSUCKER COMBO* OIT
0057 JETTER/ SUPERSUCKER COMBO* P/T
0058 OMNI VAC* SIT
0059 OMNI VAC* OIT
0060 OMNI VAC* PIT
0061 HYDRO EXCAVATOR 52000 CFM* S/T
0062 HYDRO EXCAVATOR 52000 CFM* OIT
0063 HYDRO EXCAVATOR 52000 CFM* PIT
• * • DENOTES WITH OPERA TOR.
4. RESPIRATORY/ CONFINED SPACE ENTRY EQUIPMENT
0064 SELF-CONTAINED BREATHING APPARATUS (30 MIN.) 122.20 0065 6-PACK BREATHING AIR BOTTLES 287.40
0066 5-MINUTE EGRESS AIR BOTTLE 21.60
0067 TRIPOD W/DOUBLE WINCHES 273.10
0068 FULL BODY HARNESS W/SHOCK ABSORBER 21.60
0069 COPPUS BLOWER 136.60
0070 4-GAS AIR MONITOR 179.70
0071 PERSONAL 4-GAS METER 179.70
0072 OVA MONITOR 287.40
0073 MERCURY VAPOR ANALYZER 610.70
5. TRAFFIC CONTROL
0074 DELINEATOR/REFLECTIVE, EACH NO CHARGE
0075 TRAFFIC CONE/REFLECTIVE, EACH NO CHARGE
0076 ARROW BOARD 215.60
0077 PERSONNEL SAFETY VEST/ REFLECTIVE NO CHARGE
0078 TRAFFIC CONTROL SIGNS 48"X48" / REFLECTIVE NO CHARGE
189.70
189.70
142.30
189.70
189.70
166.00
213.40
213.40
166.00
213.40
213.40
150.20
197.60
197.60
150.20
197.60
197.60
205.50
237.10
237.10
359.30
402.40
402.40
359.30
402.40
402.40
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
~~ OCEH~DLUE
ENVIRONMENTRI.. SERVICES. INC.
6. CLEANING EQUIPMENT (INCLUDING HOSES)
0079 STEAM MACHINE 1,000 PSI 22 GPM 64.70
0080 STEAM MACHINE 3,500 PSI 6 GPM 64.70
0081 HYDRO BLASTER 64.70
0082 AIR COMPRESSOR 50.30
0083 DIAPHRAGM PUMP 107.80
0084 TRASH PUMP 3" 215.60
0085 TRASH PUMP 4" TRAILER MOUNTED 402.40
0086 TRASH PUMP 6" TRAILER MOUNTED 517.30
0087 PORTABLE DECON STATION - 3 SHOWER STALLS 431.10
0088 DECON PAD 1 0'X50'X10" 215.60
0089 ELECTRIC 12 VOLT DIESEL TRANSFER PUMP 83.40
7. PORTABLE STORAGE UNITS
0090 500-BBL VAPOR TIGHT EZ CLEAN TANK 93.40
0091 SECONDARY CONTAINMENT ON 500-BBL TANK 50.30
0092 550-BBL MOBILIZATION 503.00
0093 20 YARD OPEN/CLOSED TOP 21.60
0094 40 YARD OPEN/CLOSED TOP 24.50
0095 VACUUM BIN - 20 YD 143.70
0096 DE-WATERING BIN - 20YD 143.70
0097 DE-WATERING BIN FILTER 107.80
0098 BIN LINER 71.90
8. OIL SPILL EQUIPMENT
0099 RAPID BOOM DEPLOYMENT SYSTEM 215.60
0100 BOOM TRAILER (STANDBY) W/1600' OF 8" x 18" 143.70
0101 BOOM TRAILER {STANDBY) W/1600' OF 8" x 18" 2,155.40 0102 BOOM 8" x 18" (DEPLOYED) 2.20
0103 GROUND TACKLE FOR BOOM 25 LB ANCHOR/ BUOY SET 71 .90 0104 SPILL CONTROL BOAT -14' W/40HP OUTBOARD 71.90
0105 TOW/SPILL CONTROL BOAT 19' W/90HP 122.20
0106 TOW/SPILL CONTROL BOAT 22' W/2000HP 136.60
0107 22' X 8' SELF POWERED BARGE 129.40
0108 12' PUNT WITH 5 HP OUTBOARD 33.10
0109 12' PUNT 18.70
0110 PUNT TRAILER NO CHARGE
0111 45' BOX VAN EQUIPMENT FOR EMERG. RESPONSE 309.00
0112 ROPE MOP SKIMMER 76.20
0113 DRUM SKIMMER TDS-136 WI POWER PACK 115.00
0114 SKIM-PAK SERIES 4000 W/ CONTROL SYSTEM 107.80
0115 INFLATABLE PLUGS 6" TO 12" 93.40
0116 IN FLAT ABLE PLUGS 12" TO 24" 143.70
HOURLY
HOURLY
HOURLY
HOURLY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
DAILY
ONE WAY
DAILY
DAILY
DAILY
DAILY
EACH
EACH
DAILY
DAILY
MONTHLY
PER FT/DAY
EA/DAY
HOURLY
HOURLY
HOURLY
HOURLY
HOURLY
HOURLY
DAILY
HOURLY
HOURLY
DAILY
DAILY
DAILY
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
~
ocEn;UnLuE
ENVIRONMENTRL SERVICES. INC.
9. TOOLS AND OTHER EQUIPMENT
0117 BETTS VALVUE 215.60
0118 BROOMS NO CHARGE
0119 BROOMS HAZ-MA T NO CHARGE
0120 CELLULAR PHONE (CALLS INCL.) NO CHARGE
0121 CHEST WADERS 28.80
0122 CUTTING TORCH 215.60
0123 DRUM VACUUM - 55 GALLON 115.00
0124 EXPLOSION-PROOF FLASH LIGHT NO CHARGE
0125 EYEWASH STATION NO CHARGE
0126 FLASHLIGHT NO CHARGE
0127 HAZ-CAT KIT 36.00
0128 HEAW DUTY JETTER NOZZLE 326.60
0129 HEDGE TRIMMERS NO CHARGE
0130 HEPA VACUUM (DRY) 201.20
0131 HIP WADERS NO CHARGE
0132 HUDSON SPRAYER NO CHARGE
0133 GAS POWERED AGITATOR W/EXT. & BLADES 326.60
0134 GENERATOR 5 KW (SMALL PORTABLE) 107.80
0135 LIFE JACKETS NO CHARGE
0136 LIGHT STAND 36.00
0137 LIGHT TOWER (4 BULB) 273.10
0138 MACHETES NO CHARGE
0139 MERCURY VACUUM 230.00
0140 NEG AIR MACHINE 2000 CFM 230.00
0141 PALLET JACK NO CHARGE
0142 REPLACEMENT HEPA FILTERS FOR NEG AIR 287.40
0143 12" FLEXABLE INLET/EXHAUST DUCTING 36.00
0144 12" DISPOSABLE EXHAUST DUCTING 230.00
0145 PER DIEM ALLOWANCE ON TRAVEL NO CHARGE
0146 POGO PUMP 36.00
0147 PORT ABLE RESTROOM 71.90
0148 PORTABLE RESTROOM W/WASH AND TRAFFIC CONTROL 287.40 0149 PROFILING FEE (PER WASTE STREAM) NO CHARGE
0150 INTRINSICALLY SAFE RADIO 2-WAY 43.20
0151 RAKES NO CHARGE
0152 RIVET BUSTER 215.60
0153 RIVET BUSTER BIT SET 57.50
0154 SAWZALL 93.40
0155 SHOVELS NO CHARGE
0156 SHOVELS/HAZ-MAT NO CHARGE
0157 SQUEEGEES NO CHARGE
0158 VENTILATION FAN 93.40
0159 VAPOR TIGHT DROP LIGHTS 17.30
0160 WATER TANK TRAILER W/PUMP 510.10
DAILY
DAILY
DAILY
DAILY
PERTEST
DAILY
DAILY
DAILY
DAILY
DAY
DAILY
DAILY
DAILY
DAILY
EACH
DAILY
ROLL
EACH
EACH
DAILY
DAILY
DAILY
DAILY
EACH
DAILY
DAILY
DAILY
DAILY
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
~
0CEn;L.1nLUE
ENVIRONMENTRL SERVICES. INC.
10. MATERIALS
0161 5-GAL DOT DRUM, POLY 31.70
0162 10-GAL DOT DRUM, STEEL 31.70
0163 15-GAL DOT DRUM, STEEL 31.70
0164 15-GAL DOT DRUM, POLY 31.70
0165 20-GAL DOT DRUM, STEEL 31.70
0166 30-GAL DOT DRUM, STEEL 31.70
0167 30-GAL DOT DRUM, POLY 31.70
0168 55-GAL DOT DRUM, STEEL 71.90
0169 55-GAL DOT DRUM, POLY 71.90
0170 85-GAL DRUM, OVERPAK 265.90
0171 ACID SPILFYTER NEUTRALIZER ER GALLON 112.20
0172 BASE SPILFYTER NEUTRALIZER ER GALLON 112.20
0173 BLEACH 6.50
0174 BOOT COVER NO CHARGE
0175 CAUTION / BARRICADE TAPE 36.00
0176 DIESEL FUEL (FOR EQUIPMENT) 6.50
0177 DRINKING WATER- 24 BOTTLE CASE NO CHARGE
0178 DRUM LABEL NO CHARGE
0179 DUCT TAPE 10.10
0180 EAR MUFFS NO CHARGE
0181 EAR PLUGS 200/BOX NO CHARGE
0182 FACE SHIELD NO CHARGE
0183 HAND CLEANER NO CHARGE
0184 HARD HATS NO CHARGE
0185 MANIFEST FORMS NO CHARGE
0186 OIL SORBENT POMPOMS 129.40
0187 PLASTIC BAGS 8 MIL 115.00
0188 PLASTIC SHEETING 8 MIL 115.00
0189 RAGS - 50 POUND BOX 79.10
0190 ROPE 1 /2 POLY 100' 32.70
0191 SAMPLE JARS - 1 QT 5.80
0192 SAND BAGS 5.80
0193 SIMPLE GREEN 19.20
0194 SODA ASH 8.90
0195 SORBENT BOOM 8" x 1 O" 69.00
0196 SORBENT PADS 18"x18"x1/2" (100/BALE) 132.20
0197 SUPERFINE (33 LBS) 27.40
0198 TRIWALL BOXES 201.20
0199 VACTOR FLEX HOSE 4" DISPOSABLE 2.70
0200 VACTOR FLEX HOSE 6" DISPOSABLE 4.00
EACH
EACH
EACH
EACH
EACH
EACH
EACH
EACH
EACH
EACH
EACH
EACH
GALLONS
PER ROLL
GALLONS
PER ROLL
BALE
PER BOX
PER BOX
PER BOX
PER FOOT
EACH
EACH
GALLONS
GALLONS
EACH
BALE
PER BAG
EACH
FOOT
FOOT
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
~
ocEn;UoLuE
ENVIRONMENTRI.. SERVICES. INC.
11. PERSONAL PROTECTIVE EQUIPMENT (PPE)
0201 LEVEL "A" - FULLY ENCAPSULATED GAS-TIGHT SUIT
WITH SCBA
0202 LEVEL "B" - POL YTYVEK THROUGH FULLY ENCAPSU
LATED SUIT, BUT NOT GAS-TIGHT, W/SCBA
0203 LEVEL "C" - TYVEK THROUGH SARANEX SUIT W/ AIR
PURIFYING RESPIRATOR
0204 LEVEL "D" - TYVEK, POL YTYVEK, COVERALL OR
RAINGEAR SUIT WITH GLOVES, BOOTS,
HARDHAT AND SAFETY GLASSES
Haz and Non-Haz Waste Disposal Fee
A. BULK DISPOSAL PRICING
Liquids
0205 Non-Hazardous Liquids
0206 Suspended Solid Surcharge
0207 Non-RCRA Haz Waste Liquid
0208 Suspended Solid Surcharge
0209 Washout Fee
0210 Chemical Cleaning of Vacuum Trailer
0211 Certified Scale Weight of a Truck
Solids
0212 Treated Wood Waste
0213 Asbestos containing debris
0214 Friable Asbestos
0215 Waste Tires
0216 Empty containers less than 55 gallons
0217 Non-Hazardous Waste debris
0218 Non-Haz Soil
0219 Non-Haz Soil Thermal treated
0220 Non-RCRA Soil Landfill
B. DRUM DISPOSAL PRICING
0221 Non-Haz Water
0222 Non-Haz Solid
0223 Non-Haz Sludge
0224 Non-RCRA sludge
0225 Non-RCRA Oily water
0226 Non-RCRA liquids (hard to treat)
0227 Non-RCRA Solids >250 lbs (Oily Debris)
0228 Non-RCRA Solids <250 lbs (Oily Debris)
0229 Non-RCRA grease
0230 RCRA liquids
0231 RCRA Solids (stabilization landfill)
0232 Pesticides Solid, Toxic 6.1
0233 Hypochlorite, 8
0234 Waste Fusee, 4.1
0235 Waste Oil Non-chlorinated
0236 Waste Oil with <50 ppm PCB
215.60 PERSET
136.60 PER SET
64.70 PER SET
36.00 PER SET
Minimum Bulk Charge
0.90 GALLONS 786.50
2.60 GALLONS
1.60 GALLONS 786.50
3.30 GALLONS
786.50 EACH
929.50 EACH
35.80 EACH
Minimum Bulk Load Charge Per Bin
193.10 TONS 715.00
286.00 TONS 715.00
286.00 TONS 715.00
385.00 TONS 715.00
250.30 TONS 715.00
250.30 TONS 1,215.50
128.70 TONS 1,215.50
128.70 TONS 1,215.50
250.30 TONS 1,215.50
Triwall 55 gallon 30 gallon
201.90 187.80
230.30 214.30
288.70 276.30
487.10 416.20
258.60 230.30
529.60 458.70
975.90 288.70 276.30
915.70 258.60 230.30
517.20 458.70
800.80 640.70
1,491.20 529.60 478.20
1,869.40 924.30 743.60
1,701.70 622.70 547.30
1,869.40 924.30 743.60
258.60 230.30
517.20 487.10
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624 -4120
Fx: (562) 624 -4127
15 gallon 5 gallon
143.50 115.20
187.80 131.10
230.30 201.90
331.20 258.60
201.90 173.60
375.50 230.30
202.00 173.60
202.00 173.60
331.20 258.60
410.10 328.00
403.80 258.60
503.10 314.60
336.70 200.20
503.10 314.60
201.90 173.60
357.80 276.30
0237 Waste Oil with >50 ppm PCB 9.40 per pound with 4400.00 minimum
~
ocEn~LlnLuE
ENVIRONMENTRL SERVICES. INC.
0238 Waste Antifreeze 487.10
0239 Waste Latex paint 517.20
0240 Waste gas and water (0001) 430.40
0241 Waste Flammable Liquid 1,023.70
0242 Waste Corrosive Liquids ( no metals) acidic 933.40 0243 Waste Corrosive Liquids ( no metals) Caustic 933.40 0244 Lead Base Paint Chips 750.80
0245 Waste Asbestos NON Friable 350.40
0246 Waste Asbestos Friable 450.50
430.40
444.60
387.90
879.60
804.10
804.10
600.60
280.30
360.40
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
343.60 249.80
299.30 201.90
368.80 230.30
685.40 444.60
634.10 403.80
634.10 403.80
384.40 307.60
179.40 143.50
230.70 184.60
0247 Ballasts with PCB 4.20 per pound with $720 minimum 0248 Ballasts with without PCB 750.80 600.60 384.40 307.60 Note: all the over pack of 55 gallons drums into 85 gallon drums will be charged $250.30 Surcharge. lncinerables excluding D003 and Rx
minimum charge
0249 Flammable sludges/Solids 4.70 LBS 1,022.50
0250 Oxidizers Solids / Liquids 8.80 LBS 1,859.00
0251 Waste Aerosols 7.00 LBS 855.20
0252 Elemental Mercury 83.70 LBS 2,230.80
0253 Mercury related 17.70 LBS 1,487.20
0254 Empty metal drums 55.00 DRUM
0255 Empty poly drums 93.50 DRUM
Lab Packs
Triwall 55 gallon 30 gallon 15 gallon 5 gallon
0256 Non-RCRA Liquids 1,434.60 529.60 471.10 387.90 258.60 0257 Non-RCRA Solids 1,434.60 529.60 471.10 387.90 258.60 0258 Flammable Liquids (d003) 1,592.20 774.00 703.10 464.10 258.60 0259 Flammable Solids (4.1) 3,405.70 1,317.70 1,071.50 743.90 375.50 0260 Hazardous Waste Liquids (9) 2,787.60 933.40 832.40 517.20 331.20 0261 Hazardous Waste Solids (9) 2,787.60 933.40 832.40 517.20 331.20 0262 Oxidizing minimum price drum pricing 4,187.10 3,703.20 2,006.60 687.20 0263 Corrosive Liquids/Solids (8) 2,376.70 892.00 804.10 517.20 331.20 0264 Toxic Liquids (organic/ inorganic 6.1) 2,594.20 1,317.70 1,067.10 743.90 487.10 0265 toxic Solids (organic/ inorganic 6.1) 1,860.90 1,317.70 956.00 739.50 487.10 0266 Flammable/toxic Liquids (3,6.1) 1,860.90 1,317.70 956.00 739.50 487.10 0267 Flammable/toxic Solids (4.1,6.1) 1,860.90 1,317.70 956.00 739.50 487.10 0268 Flammable/ corrosive Liquid/Solids 1,860.90 1,317.70 956.00 739.50 487.10 Bio hazardous, blood borne pathogen, medical waste, sharps 0269 BIO HAZARDOUS WASTE STERILIZATION 128.70 55 GALLON TUB 0270 BIO HAZARDOUS WASTE STERILIZATION 71.50 30 GALLON TUB 0271 BIO HAZARDOUS WASTE STERILIZATION 66.00 16 GALLON TUB 0272 BIO HAZARDOUS WASTE STERILIZATION 55.00 5 GALLON TUB
UNIVERSAL WASTE
55 gallon 30 gallon 15 gallon 5 gallon
0273 BATTERIES -ALKALINE 995.50 613.80 379.50 192.50
0274 BATTERIES - LITHIUM 3,000.00 2,000.00 1,500.00 1,000.00 0275 BATTERIES - NICAD 995.50 613.80 379.50 192.50
0276 FLOURESCENT BULBS - LOOSE PACK 550.00 330.00 220.00 110.00 0277 FLOURESCENT BULBS - CRUSHED / BROKEN 550.00 440.00 330.00 275.00 0278 LIGHT BULBS - HIGH PRESSURE SODIUM 330.00 220.00 110.00 38.50
0279
0280
0281
0282
0283
0284
0285
0286
0287
0288
0289
0290
0291
0292
~
OCEH~OLUE
ENVIRONMENTAL. SERVICES. INC.
FLOURESCENT TUBES 1 '-4' - PER TUBE 2.00 EACH
FLOURESCENT TUBES 6'-8' - PER TUBE 3.10 EACH
FLOURESCENT TUBES CFL - PER TUBE 4.20 EACH
FLOURESCENT BULBS - U - SHARE - PER BULB 3.50 EACH
FLOURESCENT BULBS - CIRCULAR - PER BULB 3.50 EACH
LIGHT BULBS - INDUCTION - PER BULB 4.30 EACH
LIGHT BULBS - LOW PRESSURE - PER BULB 10.60 EACH
LED - LINEAR 6.60 EACH
LED - MEDIUM BASE 3.30 EACH
LED- SMALL 0.90 EACH
E-WASTE 0.60 LBS
CYLINDERS 40.00 EACH
FIRE EXTINGUISHERS 30.00 EACH
LEAD ACID BATTERIES 0.80 LBS
925 West Esther St.
Long Beach, CA 90813
Ph: (562) 624-4120
Fx: (562) 624-4127
Accounts Payable Section
Harbor Department, City of Los Angeles
P.O. Box 191
San Pedro, CA 90733-0191
Attention:
Prnject Title:
Agreement No.:
Directive No.:
EXHIBIT E
Company Name & Logo
Address
Invoice No.:
Invoice Date:
Invoice Period:
Federal ID No.:
City Business Tax No.:
Consultant Contact:
Telephone:
Task Description Fee Type Contract Amount Authorized %Comp Amount Paid to Prior Invoices No. Amount Date I $ $ #DIV/0! $ - $ -
2 $ - $ #DJV/0! $ - $ -
3 $ $ #DIV/0! $ $ -
4 $ - $ #DJV/0! $ - $
GRAND TOTAL $ - $ - #DfV/0! $ - $ -
"I certify under penalty ofperjwy that the above bill isjust and correct according to the terms of Agreement No. ___ and that payment has not been received. I further certify that I have complied with the provisions of the City's Living Wage Ordinance."
Project Manager
c:/officc/sample invoice Page 1 of 1
Current Invoice Remaining Balance
$ - $
$ $ -
$ $
$ - $ -
$ - $ -
EXHIBIT E
AS-NEEDED/ON-CALL SERVICES
MONTHLY SUBCONTRACTOR MONITORING REPORT
!Blue Cells - Enter$ Amounts I
Please indicate the subconsultant participation levels achieved for the period of:
Contract No.
Consultant Name
Contract Amount
Division
Group
~'e"~l~~~ r~4- I • ••• ~1 .. ~. :.~•~ ~ ;·~j-~ f Committed MBE
Contract Administrator
Contract Title/Project
Start Date
WBE OBE
Consultant Amount
Committed to-date ·. -:: . ... _.·.~. - "\ : ... -;"" .. : .... --~ Amount $ - $ - $ - [II
1 2
3 4
5 6
7 9
10 11
12 13
1 15
16 17
Consultant Amount
Invoiced to-date
Subconsultant Name
Group = MBE/WBE/OBE/SBE/DBE
II
Committed Amount= Amount authorized by PD's
Type of Work Performed
Committed Percent= % sub commitment of Prime commitment Percent invoiced to-date = % invoiced of sub committed amount % 0.00% 0.00% 0.00%
Invoiced $ - $ - $ -
% 0.00% 0.00% 0.00%
PROPOSED
10 Group Committed PD# (MBE/WBE/OBE
. /SBE/DBE) Amount
TOTALS
Committed
Percent
End Date
SBE
$ -
0.00%
$ -
0.00%
DBE
$ -
0.00%
$ -
0.00%
ACTUALS
Amount
Invoiced to Percent invoice
to-date
Date --¥-------v 0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0.00%
0. %
.00%
EXHIBIT F
l lnrl:::itP.rl· fi/4/07
AFFIRMATIVE ACTION PROGRAM PROVISIONS
Sec. 10.8.4 Affirmative Action Program Provisions.
Every non-construction contract with or on behalf of the City of Los Angeles for which the consideration is $100,000 or more and every construction contract with or on behalf of the City of Los Angeles for which the consideration is $5,000 or more shall contain the following provisions which shall be designated as the AFFIRMATIVE ACTION PROGRAM provisions of such contract:
A. During the performance of City contract, the contractor certifies and represents that the contractor and each subcontractor hereunder will adhere to an affirmative action program to ensure that in its employment practices, persons are employed and employees are treated equally and without regard to or because of race, religion, ancestry, national origin, sex, sexual orientation, age, disability, marital status, domestic partner status, or medical condition.
1. This provision applies to work or services performed or materials manufactured or assembled in the United States.
2. Nothing in this section shall require or prohibit the establishment of new classifications of employees in any given craft, work or service category.
3. The contractor shall post a copy of Paragraph A hereof in conspicuous places at its place of business available to employees and applicants for employment.
B. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to their race, religion, ancestry, national origin, sex, sexual orientation, age, disability, marital status, domestic partner status, or medical condition.
C. As part of the City's supplier registration process, and/or at the request of the awarding authority or the Office of Contract Compliance, the contractor shall certify on an electronic or hard copy form to be supplied, that the contractor has not discriminated in the performance of City contracts against any employee or applicant for employment on the basis or because of race, religion, ancestry, national origin, sex, sexual orientation, age, disability, marital status, domestic partner status, or medical condition.
D. The contractor shall permit access to and may be required to provide certified copies of all of its records pertaining to employment and to its employment practices by the awarding authority or the Office of Contract Compliance, for the purpose of investigation to ascertain compliance with the Affirmative Action Program provisions of City contracts, and on their or either of their request to provide evidence that it has or will comply therewith.
1 EXHIBIT G
AFFIRMATIVE ACTION PROGRAM PROVISIONS
E. The failure of any contractor to comply with the Affirmative Action Program provisions of City contracts may be deemed to be a material breach of contract.
Such failure shall only be established upon a finding to that effect by the awarding authority, on the basis of its own investigation or that of the Board of Public Works, Office of Contract Compliance. No such finding shall be made except upon a full and fair hearing after notice and an opportunity to be heard has been given to the contractor.
F. Upon a finding duly made that the contractor has breached the Affirmative Action Program provisions of a City contract, the contract may be forthwith cancelled, terminated or suspended, in whole or in part, by the awarding authority, and all monies due or to become due hereunder may be forwarded to and retained by the City of Los Angeles. In addition thereto, such breach may be the basis for a determination by the awarding authority or the Board of Public Works that the said contractor is an irresponsible bidder or proposer pursuant to the provisions of Section 371 of the Los Angeles City Charter. In the event of such determination, such contractor shall be disqualified from being awarded a contract with the City of Los Angeles for a period of two years, or until he or she shall establish and carry out a program in conformance with the provisions hereof.
G. In the event of a finding by the Fair Employment and Housing Commission of the State of California, or the Board of Public Works of the City of Los Angeles, or any court of competent jurisdiction, that the contractor has been guilty of a willful violation of the California Fair Employment and Housing Act, or the Affirmative Action Program provisions of a City contract, there may be deducted from the amount payable to the contractor by the City of Los Angeles under the contract, a penalty of TEN DOLLARS ($10.00) for each person for each calendar day on which such person was discriminated against in violation of the provisions of a City contract.
H. Notwithstanding any other provisions of a City contract, the City of Los Angeles shall have any and all other remedies at law or in equity for any breach hereof.
I. The Public Works Board of Commissioners shall promulgate rules and regulations through the Office of Contract Compliance and provide to the awarding authorities electronic and hard copy forms for the implementation of the Affirmative Action Program provisions of City contracts, and rules and regulations and forms shall, so far as practicable, be similar to those adopted in applicable Federal Executive Orders. No other rules, regulations or forms may be used by an awarding authority of the City to accomplish this contract compliance program.
J. Nothing contained in City contracts shall be construed in any manner so as to require or permit any act which is prohibited by law.
K. The Contractor shall submit an Affirmative Action Plan which shall meet the requirements of this chapter at the time it submits its bid or proposal or at the time it 2
AFFIRMATIVE ACTION PROGRAM PROVISIONS
registers to do business with the City. The plan shall be subject to approval by the Office of Contract Compliance prior to award of the contract. The awarding authority may also require contractors and suppliers to take part in a pre registration, pre-bid, pre-proposal, or pre-award conference in order to develop, improve or implement a qualifying Affirmative Action Plan. Affirmative Action Programs developed pursuant to this section shall be effective for a period of twelve months from the date of approval by the Office of Contract Compliance. In case of prior submission of a plan, the contractor may submit documentation that it has an Affirmative Action Plan approved by the Office of Contract Compliance within the previous twelve months. If the approval is 30 days or less from expiration, the contractor must submit a new Plan to the Office of Contract Compliance and that Plan must be approved before the contract is awarded.
1. Every contract of $5,000 or more which may provide construction, demolition, renovation, conservation or major maintenance of any kind shall in addition comply with the requirements of Section 10.13 of the Los Angeles Administrative Code.
2. A contractor may establish and adopt as its own Affirmative Action Plan, by affixing his or her signature thereto, an Affirmative Action Plan prepared and furnished by the Office of Contract Compliance, or it may prepare and submit its own Plan for approval.
L. The Office of Contract Compliance shall annually supply the awarding authorities of the City with a list of contractors and suppliers who have developed Affirmative Action Programs. For each contractor and supplier the Office of Contract Compliance shall state the date the approval expires. The Office of Contract Compliance shall not withdraw its approval for any Affirmative Action Plan or change the Affirmative Action Plan after the date of contract award for the entire contract term without the mutual agreement of the awarding authority and the contractor.
M. The Affirmative Action Plan required to be submitted hereunder and the pre registration, pre-bid, pre-proposal or pre-award conference which may be required by the Board of Public Works, Office of Contract Compliance or the awarding authority shall, without limitation as to the subject or nature of employment activity, be concerned with such employment practices as:
1. Apprenticeship where approved programs are functioning, and other on-the job training for non-apprenticeable occupations;
2. Classroom preparation for the job when not apprenticeable;
3. Pre-apprenticeship education and preparation;
3
AFFIRMATIVE ACTION PROGRAM PROVISIONS
4. Upgrading training and opportunities;
5. Encouraging the use of contractors, subcontractors and suppliers of all racial and ethnic groups, provided, however, that any contract subject to this ordinance shall require the contractor, subcontractor or supplier to provide not less than the prevailing wage, working conditions and practices generally observed in private industries in the contractor's, subcontractor's or supplier's geographical area for such work;
6. The entry of qualified women, minority and all other journeymen into the industry; and
7. The provision of needed supplies or job conditions to permit persons with disabilities to be employed, and minimize the impact of any disability.
N. Any adjustments which may be made in the contractor's or supplier's workforce to achieve the requirements of the City's Affirmative Action Contract Compliance Program in purchasing and construction shall be accomplished by either an increase in the size of the workforce or replacement of those employees who leave the workforce by reason of resignation, retirement or death and not by termination, layoff, demotion or change in grade.
0. Affirmative Action Agreements resulting from the proposed Affirmative Action Plan or the pre-registration, pre-bid, pre-proposal or pre-award conferences shall not be confidential and may be publicized by the contractor at his or her discretion.
Approved Affirmative Action Agreements become the property of the City and may be used at the discretion of the City in its Contract Compliance Affirmative Action Program.
P. This ordinance shall not confer upon the City of Los Angeles or any Agency, Board or Commission thereof any power not otherwise provided by law to determine the legality of any existing collective bargaining agreement and shall have application only to discriminatory employment practices by contractors or suppliers engaged in the performance of City contracts.
Q. All contractors subject to the provisions of this section shall include a like provision in all subcontracts awarded for work to be performed under the contract with the City and shall impose the same obligations, including but not limited to filing and reporting obligations, on the subcontractors as are applicable to the contractor.
Failure of the contractor to comply with this requirement or to obtain the compliance of its subcontractors with all such obligations shall subject the contractor to the imposition of any and all sanctions allowed by law, including but not limited to termination of the contractor's contract with the City. 4