HomeMy WebLinkAboutSANTA ANA UNIFIED SCHOOL DISTRICT (13) -2002•
0 A-2002-101B
ESCROW DEPOSIT AND DISBURSEMENT AGREEMENT
This Escrow Deposit and Disbursement Agreement ("Agreement") is dated as of August
5, 2003 by and between Santa Ana Unified School District ("District"), a public school district
duly organized and existing under the laws of the state of California and the City of Santa Ana
("City"), a charter city and municipal corporation duly organized and existing under the
constitution and laws of the state of California.
RECITALS
WHEREAS, the City and District entered into a Joint Use Agreement and Covenant by and
Between the Santa Ana Unified School District and the City of Santa Ana dated as of June 3,
2002 ("Joint Use Agreement") wherein the City agreed to convey approximately 18.84 acres of
Centennial Park to the District for use as a site for a performing arts center and athletic facilities
("Joint Use Property") to support Hector Godinez Fundamental High School.
WHEREAS, the City and District also entered into a Ground Lease and Option Agreement dated
June 3, 2002 ("Ground Lease") for the lease of the Joint Use Property to the District subject to
certain terms and conditions.
WHEREAS, Section 6.2 of the Ground Lease requires the District to set aside in an interest
bearing escrow account an amount to be agreed upon by the City Manager and the District's
Superintendent for the estimated construction costs of the various improvements called for in
Subsections 5.1-5.4, 5.6-5.9 and 5.11 and 5.12 of the Ground Lease (the "Joint Use
Improvements") and certain sums for potential off-site channel improvements which may or may
not be required by the Orange County Flood Control District ("Channel Improvements") in an
amount agreed to by the City and District.
WHEREAS, the City and District desire to enter into this Agreement to establish the escrow
account required by Section 6.2 of the Ground Lease for the construction of the Joint Use
Improvements and the Channel Improvements, if required. Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Ground Lease.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth herein,
the City and District agree as follows:
1. Escrow Account. Pursuant to the requirements of Section 6.2 of the Ground
Lease, the District has opened an account with the Bank of the West, at 4400 Macarthur Avenue,
Suite 150, Newport Beach„ California, Account No. 748-001922, referenced as "Santa Ana
Unified High School District Escrow Account" ("Escrow Account" to be used only for the
purposes set forth in the Ground Lease and this Agreement.
2. Deposit of Funds. Pursuant to the requirements of Section 6.2 of the Ground
Lease, the District will deposit the total sum of Seven Million Four Hundred Fifty Seven
Thousand Dollars ($7,457,000) ("Escrow Funds") upon award of the construction contract by the
Board of Education of the Santa Ana Unified School District. The Escrow Funds will be used by
the District for the construction of the Joint Use Improvements and Channel Improvements, if
required. The Escrow Funds shall be allocated for the Joint Use Improvements and Channel
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Improvements as provided below. All interest on the Escrow Funds shall accrue to the District
and may be withdrawn and used by the District at any time.
2.1 Joint Use Improvements. Five Million Nine Hundred Fifty Seven Thousand
Dollars ($5,957,000) ("Joint Use Improvement Funds") shall be used by the District for payment
of the following estimated construction costs:
Section Item/Work Description
5.1 Hardscape/Parking/Other Improvements
5.2 Addition of Third Level to Parking Structure
5.3 Traffic Signal
5.4 Intersection re-striping
5.5 Fencing
5.6 Replacement of 2 softball fields (including conduit and wiring for
future lighting)
5.7 Replacement of field restroom
5.8 Replacement of existing maintenance facility/parking
5.9 Monument sign
5.11 Lighting to athletic facilities, basketball courts and fields
5.12 Addition of storage space in performing arts building
5.12 Addition of storage room in gymnasium building
5.13 Locker/Changing Facility
Total Estimated Construction Costs for Joint Use Improvements
Estimated Cost
$2,430,000
$1,378,000
$ 88,000
$ 45,000
$ 15,000
$ 446,000
$ 179,000
$ 606,000
$ 6,000
$ 576,000
$ 154,000
$ 29,000
$ 5,000
$ 5,957,000
The City and District acknowledge that the above costs are estimates only and may be subject to
change. District shall have the right, without need for further approval from the City, to
withdraw funds from the Escrow Account for payment of costs for the Joint Use Improvements
and to reallocate sums between the items noted above if necessary to complete construction of
any portion of the Joint Use Improvements, provided in the District's reasonable judgment there
are sufficient Joint Use Funds remaining to complete the remaining Joint Use Improvements. If
the total estimated construction costs for the Joint Use Improvements are greater than $5,927,000
District shall fund any excess costs necessary to complete construction of the Joint Use
Improvements.
2.2 Channel Improvement Funds. One Million Five Hundred Thousand Dollars
($1,500,000) ("Channel Improvement Funds") shall be held in the Escrow Account to be used
for the Channel Improvements, if required by the Orange County Flood Control District
("FCD"). In the event that FCD determines that the Channel Improvements are not necessary or
the cost of the Channel Improvements required to be paid by the District is less than $1,500,000,
all or a portion, as applicable, of the Channel Improvement Funds shall be immediately released
to the District. This Agreement shall be amended to acknowledge the release or reduction of the
Channel Improvements Funds and the total Escrow Funds required to be deposited by the
District.
In the event construction of the Channel Improvements is required, the District shall prepare an
estimated budget similar to the Joint Improvements Improvement budget set forth in Section 2.1
above. Disbursement of the Channel Improvement Funds shall be made under the same terms
osssz.o47iaisiand conditions as set forth in Section 2.1 above for the Joint Use Funds.
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3. Use of Escrow Funds. The District shall have the right to make withdrawals from the
Escrow Account, on a monthly or more frequent basis if required, to pay contractors,
subcontractors, suppliers, materialmen, consultants and other costs for the construction of the
Joint Use Improvements. Prior to making any payment the District shall review and approve the
invoice, obtain all appropriate lien releases and waivers, confirm that the work for which
payment is requested was performed and that any other conditions to payment set forth in the
District's contract or subcontract have been satisfied. District shall require that its general
contractor provide performance and performance bonds sufficient for completion of the Joint
Use Improvements.
4. District's Reporting Requirements.
4.1 Joint Use Improvements. The projected construction schedule for construction of the
Joint Use Improvements is attached hereto as Exhibit "A". Prior to the commencement of
construction, the District shall provide the City with an updated construction schedule and
written notice of any changes in the construction budget set forth in Section 2.1 above.
The District shall deliver to the City a quarterly progress report showing the following:
(A) Percentage of completion for each item in the construction budget,
(B) Balance of Joint Use Funds available in the Escrow Account, and
(C) Updated construction schedule showing changes from the prior quarter's
construction schedule.
The quarterly report shall be delivered to the City on or before the tenth (10th) day the month
following the end of each succeeding quarter until completion of the Joint Use Improvements
pursuant to the terms of the Ground Lease.
4.2 Channel Improvements. In the event the District is required to construct the Channel
Improvements, it shall provide to City monthly reports in the form required by Section 4.1 above
for the Channel Improvements.
5. Termination. This Agreement shall terminate upon the completion of the Joint Use
Improvements and Channel Improvements, if any, as required by the Ground Lease; provided,
however, in the event the Ground Lease is terminated by the City prior to completion of such
improvements all remaining Escrow Funds shall be released and paid to the District. Upon
termination of the Ground Lease or the completion of the Joint Use Improvements or Channel
Improvements, as applicable, the balance of any remaining Escrow Funds allocated to the Joint
Use Improvements or Channel Improvements, as applicable, together with any accrued interest
thereon, shall be released and paid to District. The Escrow Account shall be closed upon
completion of all required construction work pursuant to this Agreement.
6. Miscellaneous.
6.1 Successors and Assigns. This Agreement shall inure to the benefit or and be binding
upon the parties hereto and their successors and assigns in connection with any assignment of the
Ground Lease as provided therein.
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6.2 Notices. All written notices required to be given pursuant to the terms hereof shall be
either (i) personally delivered, (ii) deposited in the United States express mail or first class mail,
registered or certified, return receipt requested, postage prepaid, (iii) delivered by overnight
courier service, or (iv) delivered by facsimile, provided that the original of such facsimile notice,
is sent by certified U.S. Mail, postage prepaid, no later than one business day following such
facsimile. All such notices shall be deemed delivered upon actual receipt or upon the first
attempt at delivery pursuant to the methods specified in clauses (i), (ii) or (iii) above if the
intended recipient refuses to accept delivery). All such notices shall be delivered to the
following addresses, or to such other address as the receiving party may from time to time
specify by written notice to the other party.
To the District:
Santa Ana Unified School District
1601 East Chestnut Avenue
Santa Ana, California 92701
Attn: Deputy Superintendent, Operations
Telephone No.: (714) 558-5523
Facsimile No. (714) 558-5674
Email: jbennett@sausd.kl2.ca.us
With a copy to:
Carolyn M. Huestis, Esq.
Atkinson, Andelson, Loya, Ruud & Romo
17871 Park Plaza Drive, Suite 200
Cerritos, California 90703-8597
Telephone No: (562) 653-3200
Facsimile No: (562) 653-3333
Email: chuestls@aalrr.com
To the City:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Attn: Clerk of the City Council
Telephone No: (714) 647-6520
Facsimile No: (714) 647-6956
With a copy to:
Office of the City Attorney
City of Santa Ana
20 Civic Center Plaza
Santa Ana, California 92701
Telephone No: (714) 647-5201
Facsimile No: (714) 647-6515
6.3 Incorporation of Recitals and Exhibits. All of the recitals and exhibits set forth in or
attached to this Agreement by this reference incorporated in and made a part of this Agreement.
6.4 Construction. The parties acknowledge that each party and its counsel have reviewed
and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments hereto.
6.5 Governing Law. This Agreement shall be construed and interpreted in accordance with
and shall be governed and enforced in all respects according to the laws of the State of
California, without regard to conflicts of laws principles.
6.6 Entire Agreement. This Agreement, together with the Joint Use Agreement and Ground
Lease contains the entire understanding of the parties and supercedes any and all other written or
oral understanding. No alteration of or amendment to this Agreement and/or the Joint Use
Agreement and/or Ground Lease shall be effective unless given in writing and signed by the
parties sought to be charged or bound by the alteration or amendment.
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6.7 Captions. Any captions or headings to the Sections and subsections in this Agreement
are solely for the convenience of the parties hereto, are not a part of this Agreement and shall not
be used for the interpretation of validity of this Agreement, or any provision hereof.
6.8. Severability. If any one or more of the provisions contained in this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable term or provision had never been contained
herein.
6.9 Further Assurances. Each party shall cooperate with the other and shall execute such
other documents as may be reasonably necessary to carry out the provisions of this Agreement.
6.10 No Waiver. Any waiver, consent or approval by either party of any breach, default or
event of default of any provision, condition or covenant of this Agreement must be in writing
and shall be effective only to the extent set forth in writing. No waiver of any breach, default or
event of default shall be deemed a waiver of any later breach, default or event of default of the
same or any other provision of this Agreement. Any failure or delay on the part of either party in
exercising any power, right or privilege under this Agreement shall not operate as a waiver
thereof, nor shall any single or partial exercise of such power, right or privilege preclude any
further exercise thereof.
6.11 Rights and Remedies. No right or remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other right or remedy given hereunder or
hereafter existing at law or in equity. The exercise of any one or more rights or the election of
any one or more remedies by any party shall not constitute waiver of the right to exercise other
available rights or pursue other available remedies.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
above.
The District:
SANTA ANA UNIFIED SCHOOL DISTRICT,
A political subdivision of the State of California
B
The City:
CITY OF SANTA ANA,
A Charter City
B
Y cJ??
David N. Ream
City Manager
B
05382.047/415159v2
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Rosemarie Avila
President of the Board
Attest:
By Margaret Brown
Senior Director of Facilities Planning
Approved as to Form:
Atkinson, Andelson, Loya, Ruud & Romo
r ?' a
By
Carolyn . Huestis
0
Attest: -?
Patricia E. Hea y
Clerk of the C uncil
Approved as to Form:
By
W. Fletcher, City Attorney
05382.047/415159v2
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