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Ordinance No. 1264 ORDINANCE NO . 1264 AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND THE SOUTHERN CALIFORNIA CURLING CENTER, INC. WHEREAS, in November 2019, the Southern California Curling Center, Inc. ("Southern California Curling") approached the City about locating their dedicated curling facility in Vernon; and WHEREAS, the City and Southern California Curling have negotiated and prepared the form of the attached Development Agreement for the development of Southern California Curling' s operations in the City (the "Development Agreement" or the `Agreement") ; and WHEREAS, the planned development project will benefit the City through positive public relations and media exposure, as well as the generation of additional revenues in the form of a development fee, which will be derived from gross receipts generated by Southern California Curling' s operations; and WHEREAS, the City Council has held a duly noticed public hearing on the proposed Development Agreement, and has considered the testimony presented at such public hearing; and WHEREAS, the City Council of the City of Vernon desires to approve the Agreement . NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VERNON HEREBY ORDAINS: SECTION 1 : Recitals. The City Council of the City of Vernon hereby finds and determines that all of the foregoing recitals are true and correct . SECTION 2 : Purpose and Authority. The purpose of this Ordinance is to approve a Development Agreement with Southern California Curling. This ordinance is authorized pursuant to Government Code Section 65864 through 65860 . 5. SECTION 3: Findings. In adopting this ordinance, the City Council of the City of Vernon makes the following findings: a) Approval of the Development Agreement is categorically exempt from review under the California Environmental Quality Act ("CEQA") because it is a continuing administrative activity that will not result in direct or indirect physical changes in the environment, and therefore does not constitute a "project" as defined by CEQA Guidelines section 15378, and to the extent Southern California Curling seeks to engage in actual physical construction or development, such would be subject to separate and independent CEQA review and analysis; and b) The proposed Development Agreement is consistent with the objectives, policies, and general land uses and programs of the City of Vernon General Plan; and c) The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located; and d) The proposed Development Agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, or detrimental to the general welfare of residents of the City as a whole; and e) The associated project will further important citywide goals and policies that have been officially recognized by the City Council; and f) The proposed Development Agreement is consistent with the provisions of Government Code Sections 65864 through 65869. 5. - 2 - SECTION 4 : Action. The City Council of the City of Vernon hereby approves the Development Agreement, in substantially the same form attached hereto as Exhibit A. SECTION 5: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Development Agreement for and on behalf of the City of Vernon, and the City Clerk is hereby authorized to attest thereto. SECTION 6: The City Council of the City of Vernon hereby instructs the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Ordinance and the transactions herein approved or authorized, including but not limited to, any non-substantive changes to the Agreement attached herein. SECTION 7 : Severability. If any chapter, article, section, subsection, subdivision, paragraph, sentence, clause, phrase, or word in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted this Ordinance and each chapter, article, section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more chapters, articles, sections, subsections, subdivisions, paragraphs, sentences, clauses, phrases or words be declared unconstitutional, or invalid, or ineffective. SECTION 8 : Book of Ordinances. The City Clerk shall attest and certify to the adoption of this Ordinance and shall cause this - 3 - Ordinance and the City Clerk' s certification to be entered in the Book of Ordinances of the Council of this City. The City Clerk shall cause this ordinance to be published or posted as required by law. SECTION 9: This Ordinance shall go into effect and be in full force and effect at 12 : 01 a.m. on the thirty-first (31st) day after its passage. APPROVED AND ADOPTED this 7th day of April, 2020. ,7,q ef,..4,(Le„ ioax,,2_ , Name: Melissa A V Ybarra Title(5ayor Mayor Pre Tcnr ATTEST: SAP Lisa Pope, C ty Clerk APPROVED AS T FO . Arnold M. Alv rez-Glasman, Interim City Attorney - 4 - STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES ) I, Lisa Pope , City Clerk of the City of Vernon, do hereby certify that the foregoing Ordinance, being Ordinance No. 1264 was duly and regularly introduced at a regular meeting of the City Council of the City of Vernon, held in the City of Vernon on Tuesday, March 17, 2020, and thereafter adopted at a meeting of said City Council held on Tuesday, April 7, 2020, by the following vote: AYES : Councilmembers : Mayor Ybarra, Mayor Pro-Tem Lopez, Davis, Gonzales, Menke NOES : Councilmembers : None ABSENT: Councilmembers : None And thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. tiot Executed this 01 day of April, 2020, at Vernon, California. n A kik lam , Lisa Pope, City Clerk (SEAL) - 5 - EXHIBIT A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND SOUTHERN CALIFORNIA CURLING CENTER This Development Agreement ("Agreement") is dated as of , 2020 (the "Effective Date") and is made by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Southern California Curling Center, a Delaware corporation ("Company"). The City and Company are sometimes individually referred to herein as a "Party" and, together, as the"Parties." RECITALS A. The Company has identified a site at 4545 Pacific Boulevard in the City of Vernon (the "Property") where the Company will hold a lease on the site for months with the possibility of a year option to renew. The Company plans to operate an athletic training facility and corporate events facility connected to the sport of curling (together, the "Project"). B. After public notice and hearing, the Vernon City Council, by ordinance adopted on , 2020(Ordinance No. ), has found that this Agreement(i) is consistent with the General Plan objectives, policies, land uses, and implementation programs and all other adopted plans or policies applicable to the Agreement; (ii) is compatible with the uses authorized in, and the regulations prescribed for, the zone in which the real property is located; (iii) will promote the public convenience, health, interest, safety, and general welfare of the City and will not be detrimental to or cause adverse effects to adjacent property owners, residents, or the general public; (iv) will further important citywide goals and policies that have been officially recognized by the Council; and (v) is consistent with the provisions of California Government Code Section 65864 et seq. Moreover, the Agreement is of substantial benefit to the City and its residents for (a) the Company to locate the Project in the City, because it would, among other things, introduce a new, positive public relations vehicle for the City as the hub of the emerging sport of curling in the greater Los Angeles region, and (b) increase community services resources to City residents and surrounding communities. C. This agreement is exempt from California Environmental Quality Act ("CEQA") review, because it is an administrative activity that will not result in direct or indirect physical changes in the environment, and therefore does not constitute a "project" as defined by CEQA Guidelines section 15378. To the extent the Company seeks to engage in actual physical construction or development of the Project, such would be subject to and conditioned upon both discretionary permitting and separate and independent CEQA review and analysis. NOW, THEREFORE, the Parties agree as follows: Section 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Agreement. Section 2. Term and Renewal. (a) Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until , 2025 — i.e., 5 years from the Effective Date (the"Term"). (b) At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be - 1- determined or is to expire by its own terms. If the former, the Parties shall execute a written amendment to this Agreement ("Amendment"), which shall be approved by resolution of the City Council. If the Parties have agreed to enter into the Amendment prior to the expiration of the Term, then the Term shall automatically be extended to the day prior to the effective date of the Amendment. (c) If this Agreement expires on its own terms or is otherwise terminated earlier pursuant to Section 7 of this Agreement, then within thirty (30) days after the termination of this Agreement, the Company and the City shall execute a written cancellation of this Agreement which may be recorded with the County Recorder. Section 3. Company Covenants and Representations. (a) The Company represents to the City that it is authorized to conduct business in California; has the authority to enter into the Agreement and perform the requirements of this Agreement; and, to the Company's best knowledge, its performance under this Agreement shall not violate any applicable judgment, order, law or regulation. (b) The Company covenants to reference the City in media and PR initiatives related to the Company's move to the City of Vernon. During the Term, Company will reference the City of Vernon in media and PR efforts at appropriate and organic opportunities. (c) The Company covenants to participate in City of Vernon-sponsored events, as appropriate, provided that such events are not in conflict with Company's brand or stated mission. (d) The Company represents that the Property is approximately 33,360 square foot. (e) The Company will host at least two (2) charitable events per calendar year with proceeds benefitting The Vernon CommUNITY Fund. (f) The Company will host at least two (2) Community Learn to Curl events per calendar year be offered free to greater Vernon community. (g) The Company agrees to participate up four (4) times per calendar year in City hosted community events as may requested by City by providing street curling or other activities as may be mutually agreed upon. Section 4. Development Fee. The Project's regular league play and periodic spectator events to be held after hours and/or over weekends. as well as corporate team building events. will have an impact on the City's human resources — namely, personnel from the Public Works and Police Departments. Such impact is difficult to calculate. Company and the City agree that a development fee tied to gross revenues generated by Company would adequately mitigate all such impacts to the City. The Parties therefore agree that Company shall pay a development fee to the City equal to 0.51% of the sum of gross receipts (as shown in Company's annual federal tax returns). The Development Fee shall be paid to the City by July 1 of the following year. Additionally, Company agrees that Property will be assessed at the warehouse rate for property tax assessment purposes. - 2 - Section 5. Audit and Inspection Rights. (a) The City shall review this Agreement and the Project to ensure compliance at least once every twelve (12) months, at which time the Company, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of this Agreement. If, as a result of such periodic review, the City finds and determines, on the basis of substantial evidence, that the Company has not complied materially and in good faith with the terms and conditions of the Agreement, the City may terminate or modify the Agreement. (b) The Company shall provide the City access to the Property as the City deems reasonably necessary to determine whether the Project conforms to the requirements of this Agreement. The Company shall make available to the City all reasonable facilities and assistance to facilitate the performance of inspections by the City's representatives. All records relevant to the Company's obligations under this Agreement shall be and remain available at the Company's place of business at all reasonable times during the Term of this Agreement and for two (2) years after the termination of this Agreement. The City shall be allowed to audit, examine, and make copies, excerpts or transcripts of all data relevant to confirm the Company's compliance with this Agreement. (c) The City shall be allowed to conduct a written compliance check on the number of employees employed by the Company, at its sole discretion. The Company shall fully cooperate with the City by providing access to appropriate payroll documentation to verify the total number of employees and whether such employees are part-time or full-time. Section 7. Indemnification and Hold Harmless. (a) The Company assumes any and all risk of personal injury and property damage to the extent attributable to the intentional and negligent acts or omissions of the Company and its officers, employees, representatives and agents thereof while acting within the scope of their employment with the Company and performing the Company's requirements and obligations under the terms and conditions set forth in this Agreement. (b) The Company shall indemnify, defend and hold the City, its officers, employees, representatives (whether elected or appointed) and agents harmless from and against any and all third party claims or causes of action and liabilities, expenses, losses, costs of personal injury (including death), damages, fines, and penalties of every kind and character or incurred or suffered by the City as a result thereof, based upon events arising out of or resulting from the Company's performance of the requirements and obligations under the terms and conditions of this Agreement. (c) The obligations arising under this paragraph shall survive the expiration or termination of this Agreement, as to claims or causes of action, liabilities, expenses, losses, costs, reasonable attorneys' fees, damages, fines and penalties of every kind and character or incurred or suffered by the City as a result thereof, based upon events arising prior to the date of termination of this Agreement. Section 8. Default and Termination. (a) Event of Default. For purposes of this Agreement, "Event of Default" shall mean any of the following: -3 - (i) Any representation made by the Company herein or in any statement, application or certificate furnished to the City in connection with the performance of this Agreement proves to be untrue in a material respect as of the date of issuance of making thereof and is not corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the City. (ii) The Company materially breaches any covenant contained in this Agreement and such breach is not corrected or cured within thirty (30) days after written notice thereof to the Company by the City; provided, however, that the City may declare a lesser cure period in the event that it finds, in its sole and absolute discretion, that such lesser period is necessary to protect the public health, safety, or welfare. (iii) The Company does not operate the business according to the Project (unless otherwise agreed to in writing by the City) or moves out of the City at any time during the Term of this Agreement. The Company shall provide thirty (30) days written notice to the City of any such move-out, and the effective termination date of this Agreement will be the date of move-out, unless agreed to otherwise in writing by the Parties. If the Company fails to provide notice. the effective termination date of the Agreement will be retroactive to the date of actual move-out. (iv) The Company assigns or attempts to assign this Agreement in violation of Section 9 of this Agreement. (b) Termination. Company may terminate this Agreement, without default, in the event that the Company's underlying lease expires or is earlier terminated and Company is unable to secure a new lease on an appropriate location in the City within three (3) months following such expiration or earlier termination. (c) Remedies. Upon the occurrence of an Event of Default, The City shall provide written notice to the Company. The Company shall immediately proceed to cure or remedy such default, and in any event such default shall be cured within thirty (30) days after receipt of the notice, or such longer time as the City and the Company may agree to in writing. Upon the failure of the Company to so cure any such default, the City shall have all remedies available to it, in law or in equity including, but not limited to, the right to: termination of this Agreement, effective and retroactive to the date of Event of Default; termination of pending economic incentives; withholding of future economic incentives; or termination of any other obligation required hereunder. Section 9. General Provisions. (a) Complete Agreement. This Agreement constitutes the complete agreement of the Parties regarding the Incentives and shall supersede and nullify all prior drafts and agreements, oral or written, concerning the same. (b) Compliance with Bradley-Burns Uniform Local Sales and Use Tax Law. The Company shall carry out the operation of its Point of Sale transactions through the Project in conformity with the Sales Tax Law. -4 - (c) Relationship. This Agreement does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between the City and the Company. No Party can create any obligation or responsibility on behalf of the other or bind the other in any manner. Each Party is acting for its own account, and it has made its own independent decision to enter into this Agreement and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. Each Party acknowledges that neither of the Parties hereto is acting as a fiduciary for or an adviser to it in respect of this Agreement or any responsibility or obligation contemplated herein. The Company further represents and acknowledges that it has paid no one a fee, commission, gift or other consideration as an inducement to enter into this Agreement. (d) Personal Liability. No provision of this Agreement is intended, nor shall any be construed, as a covenant of any official (either elected or appointed), employee, representative or agent of the City in an individual capacity and neither shall any such individuals be subject to personal liability by reason of any covenant or obligation of the City hereunder. (e) Amendments. No amendment to, or modification of, this Agreement shall be effective unless and until it is in writing and is approved by both the authorized representatives of the Company and the City. (f) Notices. Any notices or other communications required or permitted to be given under this Agreement shall be in writing, and shall be deemed delivered to and received by the addressee thereof when delivered in person at the address set forth below, when delivered by reputable overnight courier at the address set forth below, or three(3) business days after deposit thereof in any main or branch United States Post Office, certified or registered mail, return receipt requested, postage prepaid, properly addressed to the Parties, respectively, as follows: For notices and communications to the City: City of Vernon Attention: City Administrator 4305 Santa Fe Avenue Vernon, California 90058 With copies to: City of Vernon Attention: City Attorney 4305 Santa Fe Avenue Vernon, California 90058 For notices and communications to the Company: Southern California Curling Center Attention: Chief Executive Officer 4545 Pacific Boulevard Vernon, California 90058 (g) Governing Law, Choice of Venue and Attorneys' Fees. This Agreement and the rights of the Parties hereunder shall be governed by, and construed, interpreted, and enforced in accordance with, the laws of the State of California, regardless of any conflict of law principles. - 5 - Should either Party initiate litigation against the other Party, both Parties agree that such litigation may only be commenced in a state or federal court of competent jurisdiction in the County of Los Angeles, State of California. In the event of any action between the City and the Company seeking enforcement of any of the terms and conditions to this Agreement. the prevailing Party in such action shall be awarded, in addition to such relief to which such Party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. (h) Interpretation. This Agreement has been negotiated by both Parties and shall not be interpreted or construed against the Party drafting the Agreement. (i) Change in Laws. Unless otherwise explicitly provided in this Agreement, any reference to laws, ordinances, rules, or regulations of any kind shall include such laws, ordinances, rules, or regulations of any kind as they may be amended or modified from time to time hereafter. (j) Headings. The headings of the sections, paragraphs, and other parts of this Agreement are for convenience and reference only and in no way define, extend, limit, or describe the meaning, scope, or intent of this Agreement, or the meaning, scope, or intent of any provision hereof. (k) Time of Essence. Time is of the essence in the performance of all terms and provisions of this Agreement. (I) Severability. It is the express intent of the Parties hereto that should any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity, or property be held void, invalid, or unenforceable by a court of competent jurisdiction, such action shall not affect the remainder of this Agreement, which shall continue in full force and effect. (m) No Third Party Beneficiaries. Nothing in this Agreement shall create, or be construed to create any third party beneficiary rights in any person or entity not a signatory to this Agreement. (n) Counterparts and Originals. This Agreement may be executed in any number of multiple identical counterparts and all of said counterparts shall, individually and taken together, constitute the Agreement. There shall be two (2) original Agreements —one held by each Party. (o) Assignment. The Company may not assign this Agreement, in whole or in part, without the City's prior written consent, which consent may be withheld in the City's sole discretion. The Parties acknowledge that this Agreement is an obligation which runs to the Company and is not a covenant running with the land. Notwithstanding the foregoing, in the event that the Company sells all of its assets, or the principals of the Company sell all or substantially all of their stock and, following the sale, the operations of Company's business remain substantially the same (according to the Project) and in conformance with all obligations of this Agreement, this Agreement will remain in full force and effect and the City will grant its approval of the assignment of the Agreement. The assignee shall be bound by all of the terms and conditions of the Agreement. In the event of the foregoing, the Company shall provide notice of such assignment to the City within three (3) days of the closing of any such sale. (p) Loss of Authority. In the event that the City's authority to enter into this Agreement or to grant the Incentives pursuant to this Agreement are repealed, become unexercisable, null -6 - and void or otherwise become invalid, then the Agreement shall be terminated, City's obligations hereunder shall cease and no further obligations shall be required of the City. (q) Living Wage. The Company, and any contractor or subcontractor(s) hired and used by the Company, shall comply with the City's Living Wage Ordinance at Vernon Municipal Code Article XVIII. The current Living Wage Standards are set forth in Exhibit A attached hereto and incorporated by reference. Upon the City's reasonable request, certified payroll records shall be promptly provided to the City. (r) The Company hereby certifies and represents that, during the Term of this Agreement, it and any other parties with whom it may subcontract, shall adhere to equal employment opportunity practices to assure that applicants, employees and recipients of service are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, sexual orientation or marital status. The Company further agree to comply with The Equal Employment Opportunity Practices provisions as set forth in Exhibit B attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. [Signatures Begin on Next Page]. -7 - CITY OF VERNON, a California charter City and California municipal corporation By: Carlos R. Fandino, Jr., City Administrator ATTEST: Lisa Pope, City Clerk APPROVED AS TO FORM: Brian Byun, Senior Deputy City Attorney Southern California Curling Center, a Delaware corporation By: Name: Title: By: Name: Title: -8- EXHIBIT "A" LIVING WAGE PROVISIONS —VMC § 2.131 et seq. Minimum Living Wages: A requirement that Employers pay qualifying employees a wage of no less than $10.30 per hour with health benefits, or $11.55 per hour without health benefits. Paid and Unpaid Days Off: Employers provide qualifying employees at least twelve compensated days off per year for sick leave, vacation, or personal necessity, and an additional ten days a year of uncompensated time for sick leave. No Retaliation: A prohibition on employer retaliation against employees complaining to the City with regard to the employer's compliance with the Living Wage Ordinance. Employees may bring an action in Superior Court against an employer for back pay, treble damages for willful violations, and attorney's fees, or to compel City officials to terminate the service contract of violating employers. -9 - EXHIBIT "B" EQUAL EMPLOYMENT OPPORTUNITY PRACTICES PROVISIONS A. The Company certifies and represents that, dtaring the performance of this Agreement. The Company, its affiliates, and each contractor or subcontractor hired thereby and serving as an agent of the Company or any of its affiliates shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. The Company further certifies that they will not maintain any segregated facilities. B. The Company agrees that it shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of the Company, state that they are "Equal Opportunity Employers" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age. C. The Company agrees that it shall, if requested to do so by the City, certify that it does not have, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class. D. The Company agrees to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of their records pertaining or relating to their employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law. - 10 - FULLY EXECUTED SIGNATURE ROUTING FORM CONTRACTOR: Southern California Curling Center CONTRACT PURPOSE: Southern California Curling Center will operate an athletic training facility and host events related to the sport of curling. CONTRACT IS: 0 FEDERAL 0 PREVAILING WAGE 0 COMPETITIVE SELECTION&NOTICED RFP ❑ COMPETITIVE BID&NOTICED INVITATION TO BID ❑ EXEMPT FROM COMPETITIVE PROCESS(APPROVAL ATTACHED) ❑ SERVICES 0 MATERIALS 0 BUDGETED 0 NOT BUDGETED TOTAL CONTRACT VALUE: $ 0.00 Charge Acct.No(s) Amendment Value$ o Contract is an Amendment to Eden Contract No. (if applicable) RESPONSIBLE DEPARTMENT PERSON: Daniel Wall PHONE:ext.305 AUTHORIZATION: Approved by Council on 04/07/2020 (Check one and attach _Resold++ n-Nrr (if applicable) supporting documentation) Ordinance No. 1264 ❑ Approved by City Administrator on ❑ Approved by Finance Director on ROUTING SEQUENCE: (Please Follow In Order) Initials Date (1)Responsible Department Person Certifies compliance with Competitive Bidding and Purchasing Ordinance, a 6 7_ obtains approval from City Council/City Administrator/Finance Director,and obtains approval as to form from the City Attorney's Office,assembles two(2)originals of contract, obtains proper signatures from contractor/consultant pursuant to the signature requirements, obtains insurance& bond documents, notifies IT to remove related RFP/bid notice from the City's website(if applicable),enters contract into Eden once routing process is complete. (2) Liability and Claims Approves insurance and sureties, if bonds required. p � f (3)Finance(Purchasing) /� ��_dyv Checks compliance with Competitive Bidding& Living Wage Ordinances and reflected in current budget. (4)City Attorney 2-0-6Approves contract as to form. (31- (S) City Signatory -36 Signs document on behalf of City. (6 Ci Clerk s %/` �) h' Attests signatures, numbers and files contract,enters contract documents (executed contract,supporting documentation, insurance and bonds,etc.) into Laserfiche, transmits duplicate original to contractor/consultant,notifies Responsible Department Person, and notifies any "consultant"of duties to file Form 700, if applicable. Rev.6/2017 EXHIBIT 10 8/2017 TRANSMITTAL COMMUNICATION 0 zit# 4.41 #1111 OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue,Vernon,California 90058 Telephone(323)583-8811 August 3, 2020 Southern California Curling Center Attn: Chief Executive Officer 4545 Pacific Boulevard Vernon, CA 90058 RE: Development Agreement Dear Sir of Madam: Transmitted herewith is a fully executed original agreement as referenced above, approved by City Council on April 7, 2020,by Ordinance No. 1264. If you have any questions, please contact Daniel Wall at(323)583-8811 extension 305. Thank you. Sincerely, Deborah R. Juarez Records Management Assistant Enclosure c: Daniel Wall Purchasing Department Agreement File No. 20-031 Tcfusivefy Industrial DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND SOUTHERN CALIFORNIA CURLING CENTER This Development Agreement ("Agreement") is dated as of May 8, 2020 (the"Effective Date") and is made by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Southern California Curling Center, a Delaware corporation ("Company"). The City and Company are sometimes individually referred to herein as a "Party" and, together, as the "Parties." RECITALS A. The Company has identified a site at 4545 Pacific Boulevard in the City of Vernon (the "Property") where the Company will hold a lease on the site for 60 months with the possibility of a 5 year option to renew. The Company plans to operate an athletic training facility and corporate events facility connected to the sport of curling (together, the "Project"). B. After public notice and hearing, the Vernon City Council, by ordinance adopted on April 7, 2020 (Ordinance No. 1264), has found that this Agreement (i) is consistent with the General Plan objectives, policies, land uses, and implementation programs and all other adopted plans or policies applicable to the Agreement; (ii) is compatible with the uses authorized in, and the regulations prescribed for, the zone in which the real property is located; (iii) will promote the public convenience, health, interest, safety, and general welfare of the City and will not be detrimental to or cause adverse effects to adjacent property owners, residents, or the general public; (iv) will further important citywide goals and policies that have been officially recognized by the Council; and (v) is consistent with the provisions of California Government Code Section 65864 et seq. Moreover, the Agreement is of substantial benefit to the City and its residents for (a) the Company to locate the Project in the City, because it would, among other things, introduce a new, positive public relations vehicle for the City as the hub of the emerging sport of curling in the greater Los Angeles region, and (b) increase community services resources to City residents and surrounding communities. C. This agreement is exempt from California Environmental Quality Act ("CEQA") review, because it is an administrative activity that will not result in direct or indirect physical changes in the environment, and therefore does not constitute a "project" as defined by CEQA Guidelines section 15378. To the extent the Company seeks to engage in actual physical construction or development of the Project, such would be subject to and conditioned upon both discretionary permitting and separate and independent CEQA review and analysis. NOW, THEREFORE, the Parties agree as follows: Section 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Agreement. Section 2. Term and Renewal. (a) Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until May 7, 2025 — i.e., 5 years from the Effective Date (the "Term"). (b) At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be - 1- determined or is to expire by its own terms. If the former, the Parties shall execute a written amendment to this Agreement ("Amendment"), which shall be approved by resolution of the City Council. If the Parties have agreed to enter into the Amendment prior to the expiration of the Term, then the Term shall automatically be extended to the day prior to the effective date of the Amendment. (c) If this Agreement expires on its own terms or is otherwise terminated earlier pursuant to Section 7 of this Agreement, then within thirty (30) days after the termination of this Agreement, the Company and the City shall execute a written cancellation of this Agreement which may be recorded with the County Recorder. Section 3. Company Covenants and Representations. (a) The Company represents to the City that it is authorized to conduct business in California; has the authority to enter into the Agreement and perform the requirements of this Agreement; and, to the Company's best knowledge, its performance under this Agreement shall not violate any applicable judgment, order, law or regulation. (b) The Company covenants to reference the City in media and PR initiatives related to the Company's move to the City of Vernon. During the Term, Company will reference the City of Vernon in media and PR efforts at appropriate and organic opportunities. (c) The Company covenants to participate in City of Vernon-sponsored events, as appropriate, provided that such events are not in conflict with Company's brand or stated mission. (d) The Company represents that the Property is approximately 33,360 square foot. (e) The Company will host at least two (2) charitable events per calendar year with proceeds benefitting The Vernon CommUNITY Fund. (f) The Company will host at least two (2) Community Learn to Curl events per calendar year be offered free to greater Vernon community. (g) The Company agrees to participate up four (4) times per calendar year in City hosted community events as may requested by City by providing street curling or other activities as may be mutually agreed upon. Section 4. Development Fee. The Project's regular league play and periodic spectator events to be held after hours and/or over weekends, as well as corporate team building events, will have an impact on the City's human resources — namely, personnel from the Public Works and Police Departments. Such impact is difficult to calculate. Company and the City agree that a development fee tied to gross revenues generated by Company would adequately mitigate all such impacts to the City. The Parties therefore agree that Company shall pay a development fee to the City equal to 0.51% of the sum of gross receipts (as shown in Company's annual federal tax returns). The Development Fee shall be paid to the City by July 1 of the following year. Additionally, Company agrees that Property will be assessed at the warehouse rate for property tax assessment purposes. Section 5. Audit and Inspection Rights. - 2 - (a) The City shall review this Agreement and the Project to ensure compliance at least once every twelve (12) months, at which time the Company, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of this Agreement. If, as a result of such periodic review, the City finds and determines, on the basis of substantial evidence, that the Company has not complied materially and in good faith with the terms and conditions of the Agreement, the City may terminate or modify the Agreement. (b) The Company shall provide the City access to the Property as the City deems reasonably necessary to determine whether the Project conforms to the requirements of this Agreement. The Company shall make available to the City all reasonable facilities and assistance to facilitate the performance of inspections by the City's representatives. All records relevant to the Company's obligations under this Agreement shall be and remain available at the Company's place of business at all reasonable times during the Term of this Agreement and for two (2) years after the termination of this Agreement. The City shall be allowed to audit, examine, and make copies, excerpts or transcripts of all data relevant to confirm the Company's compliance with this Agreement. (c) The City shall be allowed to conduct a written compliance check on the number of employees employed by the Company, at its sole discretion. The Company shall fully cooperate with the City by providing access to appropriate payroll documentation to verify the total number of employees and whether such employees are part-time or full-time. Section 7. Indemnification and Hold Harmless. (a) The Company assumes any and all risk of personal injury and property damage to the extent attributable to the intentional and negligent acts or omissions of the Company and its officers, employees, representatives and agents thereof while acting within the scope of their employment with the Company and performing the Company's requirements and obligations under the terms and conditions set forth in this Agreement. (b) The Company shall indemnify, defend and hold the City, its officers, employees, representatives (whether elected or appointed) and agents harmless from and against any and all third party claims or causes of action and liabilities, expenses, losses, costs of personal injury (including death), damages, fines, and penalties of every kind and character or incurred or suffered by the City as a result thereof, based upon events arising out of or resulting from the Company's performance of the requirements and obligations under the terms and conditions of this Agreement. (c) The obligations arising under this paragraph shall survive the expiration or termination of this Agreement, as to claims or causes of action, liabilities, expenses, losses, costs, reasonable attorneys' fees, damages, fines and penalties of every kind and character or incurred or suffered by the City as a result thereof, based upon events arising prior to the date of termination of this Agreement. Section 8. Default and Termination. (a) Event of Default. For purposes of this Agreement, "Event of Default" shall mean any of the following: (i) Any representation made by the Company herein or in any statement, application or certificate furnished to the City in connection with the performance of this Agreement proves to be untrue in a material respect as of the date of issuance of making - 3 - thereof and is not corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the City. (ii) The Company materially breaches any covenant contained in this Agreement and such breach is not corrected or cured within thirty (30) days after written notice thereof to the Company by the City; provided, however, that the City may declare a lesser cure period in the event that it finds, in its sole and absolute discretion, that such lesser period is necessary to protect the public health, safety, or welfare. (iii) The Company does not operate the business according to the Project (unless otherwise agreed to in writing by the City) or moves out of the City at any time during the Term of this Agreement. The Company shall provide thirty (30) days written notice to the City of any such move-out, and the effective termination date of this Agreement will be the date of move-out, unless agreed to otherwise in writing by the Parties. If the Company fails to provide notice, the effective termination date of the Agreement will be retroactive to the date of actual move-out. (iv) The Company assigns or attempts to assign this Agreement in violation of Section 9 of this Agreement. (b) Termination. Company may terminate this Agreement, without default, in the event that the Company's underlying lease expires or is earlier terminated and Company is unable to secure a new lease on an appropriate location in the City within three (3) months following such expiration or earlier termination. (c) Remedies. Upon the occurrence of an Event of Default, The City shall provide written notice to the Company. The Company shall immediately proceed to cure or remedy such default, and in any event such default shall be cured within thirty (30) days after receipt of the notice, or such longer time as the City and the Company may agree to in writing. Upon the failure of the Company to so cure any such default, the City shall have all remedies available to it, in law or in equity including, but not limited to, the right to: termination of this Agreement, effective and retroactive to the date of Event of Default; termination of pending economic incentives; withholding of future economic incentives; or termination of any other obligation required hereunder. Section 9. General Provisions. (a) Complete Agreement. This Agreement constitutes the complete agreement of the Parties regarding the Incentives and shall supersede and nullify all prior drafts and agreements, oral or written, concerning the same. (b) Compliance with Bradley-Burns Uniform Local Sales and Use Tax Law. The Company shall carry out the operation of its Point of Sale transactions through the Project in conformity with the Sales Tax Law. (c) Relationship. This Agreement does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between the City and the Company. No Party can create any obligation or responsibility on behalf of the other or bind the other in any manner. Each Party is acting for its own account, and it has made its own independent decision to enter -4 - into this Agreement and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. Each Party acknowledges that neither of the Parties hereto is acting as a fiduciary for or an adviser to it in respect of this Agreement or any responsibility or obligation contemplated herein. The Company further represents and acknowledges that it has paid no one a fee, commission, gift or other consideration as an inducement to enter into this Agreement. (d) Personal Liability. No provision of this Agreement is intended, nor shall any be construed, as a covenant of any official (either elected or appointed), employee, representative or agent of the City in an individual capacity and neither shall any such individuals be subject to personal liability by reason of any covenant or obligation of the City hereunder. (e) Amendments. No amendment to, or modification of, this Agreement shall be effective unless and until it is in writing and is approved by both the authorized representatives of the Company and the City. (f) Notices. Any notices or other communications required or permitted to be given under this Agreement shall be in writing, and shall be deemed delivered to and received by the addressee thereof when delivered in person at the address set forth below, when delivered by reputable overnight courier at the address set forth below, or three (3) business days after deposit thereof in any main or branch United States Post Office, certified or registered mail, return receipt requested, postage prepaid, properly addressed to the Parties, respectively, as follows: For notices and communications to the City: City of Vernon Attention: City Administrator 4305 Santa Fe Avenue Vernon, California 90058 With copies to: City of Vernon Attention: City Attorney 4305 Santa Fe Avenue Vernon, California 90058 For notices and communications to the Company: Southern California Curling Center Attention: Chief Executive Officer 4545 Pacific Boulevard Vernon, California 90058 (g) Governing Law, Choice of Venue and Attorneys' Fees. This Agreement and the rights of the Parties hereunder shall be governed by, and construed, interpreted, and enforced in accordance with, the laws of the State of California, regardless of any conflict of law principles. Should either Party initiate litigation against the other Party, both Parties agree that such litigation may only be commenced in a state or federal court of competent jurisdiction in the County of Los Angeles, State of California. In the event of any action between the City and the Company seeking enforcement of any of the terms and conditions to this Agreement, the prevailing Party in such - 5 - action shall be awarded, in addition to such relief to which such Party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. (h) Interpretation. This Agreement has been negotiated by both Parties and shall not be interpreted or construed against the Party drafting the Agreement. (i) Change in Laws. Unless otherwise explicitly provided in this Agreement, any reference to laws, ordinances, rules, or regulations of any kind shall include such laws, ordinances, rules, or regulations of any kind as they may be amended or modified from time to time hereafter. (j) Headings. The headings of the sections, paragraphs, and other parts of this Agreement are for convenience and reference only and in no way define, extend, limit, or describe the meaning, scope, or intent of this Agreement, or the meaning, scope, or intent of any provision hereof. (k) Time of Essence. Time is of the essence in the performance of all terms and provisions of this Agreement. (I) Severability. It is the express intent of the Parties hereto that should any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity, or property be held void, invalid, or unenforceable by a court of competent jurisdiction, such action shall not affect the remainder of this Agreement, which shall continue in full force and effect. (m) No Third Party Beneficiaries. Nothing in this Agreement shall create, or be construed to create any third party beneficiary rights in any person or entity not a signatory to this Agreement. (n) Counterparts and Originals. This Agreement may be executed in any number of multiple identical counterparts and all of said counterparts shall, individually and taken together, constitute the Agreement. There shall be two (2) original Agreements—one held by each Party. (o) Assignment. The Company may not assign this Agreement, in whole or in part, without the City's prior written consent, which consent may be withheld in the City's sole discretion. The Parties acknowledge that this Agreement is an obligation which runs to the Company and is not a covenant running with the land. Notwithstanding the foregoing, in the event that the Company sells all of its assets, or the principals of the Company sell all or substantially all of their stock and, following the sale, the operations of Company's business remain substantially the same (according to the Project) and in conformance with all obligations of this Agreement, this Agreement will remain in full force and effect and the City will grant its approval of the assignment of the Agreement. The assignee shall be bound by all of the terms and conditions of the Agreement. In the event of the foregoing, the Company shall provide notice of such assignment to the City within three (3) days of the closing of any such sale. (p) Loss of Authority. In the event that the City's authority to enter into this Agreement or to grant the Incentives pursuant to this Agreement are repealed, become unexercisable, null and void or otherwise become invalid, then the Agreement shall be terminated, City's obligations hereunder shall cease and no further obligations shall be required of the City. - 6 - (q) Living Wage.The Company, and any contractor or subcontractor(s) hired and used by the Company, shall comply with the City's Living Wage Ordinance at Vernon Municipal Code Article XVIII. The current Living Wage Standards are set forth in Exhibit A attached hereto and incorporated by reference. Upon the City's reasonable request, certified payroll records shall be promptly provided to the City. (r) The Company hereby certifies and represents that, during the Term of this Agreement, it and any other parties with whom it may subcontract, shall adhere to equal employment opportunity practices to assure that applicants, employees and recipients of service are treated equally and are not discriminated against because of their race, religion,color, national origin, ancestry, disability, sex, age, medical condition, sexual orientation or marital status. The Company further agree to comply with The Equal Employment Opportunity Practices provisions as set forth in Exhibit B attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written. [Signatures Begin on Next Page]. - 7 - CITY OF VER , a California charter City and Califor . m icipal orporation/ V By: Ca s R. Fandino, Jr.. . y Administrator ATTEST: YIA- Lisa Pope, City Clef* APPROVED AS TO FORM: iii,..______ ti 5 4 BMX rxAttbn* Arnold M. Alvarez-Glasman, Interim City Attorney Southern California Curling Center. a Delaware corporation 27 By: am' J Name: /11 h7 1 Title: CEO By: Name: 41 6 �^^^t'0-- Title: 1GG r'e-\--n -8 - EXHIBIT "A" LIVING WAGE PROVISIONS — VMC § 2.131 et seq. Minimum Living Wages: A requirement that Employers pay qualifying employees a wage of no less than $10.30 per hour with health benefits, or $11.55 per hour without health benefits. Paid and Unpaid Days Off: Employers provide qualifying employees at least twelve compensated days off per year for sick leave, vacation, or personal necessity, and an additional ten days a year of uncompensated time for sick leave. No Retaliation: A prohibition on employer retaliation against employees complaining to the City with regard to the employer's compliance with the Living Wage Ordinance. Employees may bring an action in Superior Court against an employer for back pay, treble damages for willful violations, and attorney's fees, or to compel City officials to terminate the service contract of violating employers. -9- EXHIBIT "B" EQUAL EMPLOYMENT OPPORTUNITY PRACTICES PROVISIONS A. The Company certifies and represents that, during the performance of this Agreement. The Company, its affiliates, and each contractor or subcontractor hired thereby and serving as an agent of the Company or any of its affiliates shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. The Company further certifies that they will not maintain any segregated facilities. B. The Company agrees that it shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of the Company, state that they are "Equal Opportunity Employers" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age. C. The Company agrees that it shall, if requested to do so by the City, certify that it does not have, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class. D. The Company agrees to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of their records pertaining or relating to their employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law. - 10- STAFF REPORT City Council Agenda Item Report Agenda Item No. COV-127-2020 Submitted by: Daniel Wall Submitting Department: Public Works Meeting Date: April 7, 2020 SUBJECT Second Reading of Ordinance No. 1264 - Development Agreement between the City of Vernon and the Southern California Curling Center, Inc. Recommendation: A. Find that the proposed action is exempt under the California Environmental Quality Act ("CEQA") review, because it is a continuing administrative activity that will not result in any direct or indirect physical changes in the environment, and therefore does not constitute a "project' as defined by CEQA Guidelines section 15378, and to the extent the Southern California Curling Center, Inc. seeks to engage in actual physical construction or development, such would be subject to separate and independent CEQA review and analysis; and B. Conduct second reading, and adopt Ordinance No. 1264 approving and authorizing the execution of a Development Agreement between the City of Vernon and the Southern California Curling Center, Inc for the purpose of facilitating the development of the Southern California Curling Centers' program and facility located at 4545 Pacific Boulevard in the City of Vernon. Background: The Southern California Curling Center (SCCC) has entered into a lease for the property located at 4545 Pacific Boulevard, Vernon, with the goal of building an ice facility for the sport of curling. Pursuant to Municipal Code Section 26.11 .2, a development agreement is required for fitness and recreational facilities. On March 17, 2020, the City Council conducted a public hearing and introduced on first reading Ordinance No 1264, approving and authorizing the execution of a Development Agreement between the City of Vernon and the Southern California Curling Center, Inc for the purpose of facilitating the development of the Southern California Curling Centers' program and facility located at 4545 Pacific Boulevard in the City of Vernon. Staff requests Council conduct second reading and adopt Ordinance No. 1264. Fiscal Impact: There is no fiscal impact associated with this report. Attachments: 1. Ordinance No. 1264