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g. Agreement, assumption of risk and waiver by the Owner that, if the <br />Operating Covenant Agreement is approved by the City prior to <br />consideration by the City of any land use, entering into the <br />Operating Covenant Agreement does not commit the City to <br />consider or undertake acts or activities requiring subsequent <br />independent exercise of discretion, including, but not limited to, the <br />approval of any development proposal, including a Hotel project, or <br />land use approval governing the site where the Hotel is proposed. <br />The Owner shall agree that the City retains discretion on potential <br />future actions to approve, deny, modify, and consider alternatives <br />to a proposed project, as well as to impose adequate mitigation <br />measures as may be required by the California Environmental <br />Quality Act. <br />h. A covenant and agreement by the Owner for itself, its successors, <br />assigns or designees, that during the term of the Operating <br />Covenant Agreement the business and any of its employees shall <br />not discriminate against any person on the basis of sex, marital <br />status, race, color, religion, ancestry, national origin, physical <br />handicap, sexual orientation, or domestic partnership status. <br />An acknowledgement by the parties that the only remedy for default <br />is specific performance and that monetary damages are not <br />available to the Owner for any City default. <br />4. Incentive Payments and Required Actions upon Completion of Hotel. <br />Further Terms to be Included in the Operating Covenant Agreement: <br />a. Confirmation that the Hotel is Operating as a four to five start <br />rated or AAA Four Diamond or above Hotel. Upon completion of <br />a Hotel with respect to which an Operating Covenant Agreement <br />has been entered into, the Owner shall provide to the City, at <br />Owner's sole cost and expense, an independent third party audit, <br />by an auditor approved by the City, confirming that the Hotel is <br />operating or will operate as a four to five star rated or AAA Four <br />Diamond or above Hotel. The City shall approve or reject the <br />results of such audit acting in its reasonable discretion. <br />b. Incentive Payments for Hotel. Upon the confirmation described in <br />subsection a. of this section 4, the City shall pay Incentive <br />Payments to an Owner of a Hotel, pursuant to an Operating <br />Covenant Agreement, in an amount equal to fifty percent (50 %) of <br />the HVT collected and remitted to the City during the Operating <br />Period based on the HVT Rate with respect to such Hotel. <br />Resolution No. 2016 -034 <br />Page 6 of 9 <br />