HomeMy WebLinkAbout2010-11-23 - AGENDA REPORTS - CITY RDA ASSUMPTION AGMT (2)Agenda Item: Zo
CITY OF SANTA CLARITA
AGENDA REPORT
CONSENT CALENDAR City Manager Approval:
Item to be presented by: Armine Chaparyan
DATE: November 23, 2010
SUBJECT: CITY AND REDEVELOPMENT AGENCY ENTER INTO AN
ASSIGNMENT AND ASSUMPTION AGREEMENT FOR LAND
ACQUISITION WITH THE RELATED COMPANIES, AND AN
EXCLUSIVE NEGOTIATION AGREEMENT WITH THE
RELATED COMPANIES AND NATIONAL COMMUNITY
RENAISSANCE.
DEPARTMENT: Community Development
RECOMMENDED ACTION
City Council:
1. Authorize the City Manager to enter into an Assignment and Assumption Agreement with
The Related Companies for the acquisition of 23652 Newhall Avenue, Santa Clarita 91321, APN
2833-016-037 (commonly called the Jang parcel).
2. Authorize the transfer of $345,000 from account 13331-5161.001, Community Development
Block Grant (CDBG) - Contractual Services, to 13331-5201.004, CDBG - Land.
3. Authorize the expenditure of $293,123 from account 13331-5201.004, CDBG-Land for the
land acquisition.
4. Authorize the City Manager or his designee to execute all required documentation to complete
the land acquisition, subject to review of the City Attorney.
5. Authorize the City Manager to enter into an Exclusive Negotiation Agreement with The
Related Companies and National Community Renaissance.
Redevelopment Agency Board:
a
1. Authorize the Executive Director of the RDA to enter into an Assignment and Assumption
Agreement with The Related Companies for the acquisition of 23652 Newhall Avenue, Santa
Clarita 91321, APN 2833-016-037 (commonly called the Jang parcel).
2. Appropriate $440,877 from Low/Moderate Housing Fund Balance account 391 to account
13401-5201.004, Low/Moderate Housing -Land.
3. Authorize the expenditure of $440,877 from account 13401-5201.004, Low/Moderate
Housing -Land, for the land acquisition.
4. Authorize the Executive Director of the RDA or his designee to execute all required
documentation to complete the land acquisition, subject to review by the Agency Attorney.
5. Authorize the Executive Director of the RDA to enter into an Exclusive Negotiation
Agreement with The Related Companies and National Community Renaissance.
BACKGROUND
Assignment and Assumption Agreement (Jang parcel acquisition)
On June 22, 2010 the City Council approved the acquisition of an underutilized park and ride lot
which had been declared excess by Caltrans (APN 2833-016-900), with the intent to use it for a
future affordable housing development, commonly called the Caltrans parcel. The Jang parcel is
adjacent to the Caltrans parcel and could easily be incorporated into the same housing
development in a second phase of construction.
At the City's direction, The Related Companies negotiated the acquisition of the Jang parcel and
executed a purchase agreement for $700,000 in land costs, with maximum closing costs of
$34,000. The proposed Assignment and Assumption Agreement allows the City to assume. the
purchase agreement and complete the acquisition using Community Development Block Grant
funds and RDA affordable housing set-aside funds.
Exclusive Negotiation Agreement (ENA)
In 2006 the City issued a Request for Qualifications for developers to assist the City in
developing an affordable housing development to meet various State requirements. Two
organizations were chosen and asked to work together to help the City identify development
opportunities: The Related Companies (Related) and National Community Renaissance
(CORE). Over the last four years representatives from Related and CORE have worked
diligently with City staff to identify land acquisition opportunities, funding opportunities, and
clarify the type, size, and style of development which would be most beneficial to the residents of
Santa Clarita.
The proposed ENA provides for a 90 day period in which a formal Development and Disposition
Agreement (DDA) will be negotiated for Phase 1 of the project, which will include the
development of the Caltrans parcel as a multi -family affordable housing development. The DDA
2
will include specifics of the scope of Phase 1, including the number, type, size, and architectural
style of the residential units; affordability limits; a schedule of performance; the amount and type
of financial assistance being requested from the Agency and City; and assignability limits.
The ENA also provides for an additional 270 days to negotiate amendments to the DDA for
Phase II of the development, which will include the Jang parcel, and other such parcels as they
become available for inclusion'in the project. Phase II is envisioned as a mixed-use
retail/residential development.
ALTERNATIVE ACTIONS
Other actions as determined by the City Council or Agency Board.
FISCAL IMPACT
Funding for the acquisition of the Jang parcel comes from special funds as indicated in the
Recommended Action section of this agenda report. The acquistion has no impact to the
General Fund.
The ENA allows for certain pre -development costs to be incurred during the DDA negotiation
period. Should the DDA not be completed, the City will reimburse the developer for those costs
from RDA tax increment funds and bond proceeds. The Agency/City, upon potential
reimbursement, will own all the appropriate site plans, studies, etc. completed for the site. The
ENA has no impact to the General Fund.
ATTACHMENTS
Assignment and Assumption Agreement
Exclusive Negotiation Agreement
Site Map
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ASSIGNMENT AND ASSUMPTION AGREEMENT
Effective as of this day of November, 2010 ("Effective Date"), FOR A VALUABLE
CONSIDERATION, receipt and- sufficiency of which is hereby acknowledged, THE RELATED
COMPANIES OF CALIFORNIA LLC,. a California limited liability company ("Assignor"), hereby
assigns, transfers, and sets over to the REDEVELOPMENT AGENCY OF THE CITY OF SANTA
CLARITA ("Assignee"), without warranty or representation (except as expressly set forth below), all of
its right, title, and interest in and to that certain Purchase and Sale Agreement and Escrow Instructions
for the purchase of real property described as APN 2833-016-037,. in the City of Santa Clarita, County of
Los Angeles, State of California, more fully described in Exhibit A, attached hereto and made a part
hereof ("Property"), originally entered into by and between Assignor as "Buyer", and Kwang Su Jang,
Hwa S. Park and Yang Soon Park, collectively as "Seller", dated September 22, 2010, (the "Contract"),
a copy of which is attached hereto as Exhibit B and made a part hereof, subject to all the terms and
conditions therein and subject to the following condition:
1. Concurrently with the delivery of this assignment by Assignor, Assignee shall reimburse
Assignor the sum of $28,000 that Assignor deposited into the escrow established for the
sale of the Property as the "Deposit", as defined in the Contract.
Assignor represents and warrants to Assignee that it is not in default under the Contract and that
the Contract is in full force and effect.
IN WITNESS WHEREOF, Assignor has executed this Assignment and Assumption Agreement
as of the Effective Date.
ASNAGT90.964
1
The Related Companies of California LLC,
a California limited liability company,
By: Nicholas Real Estate Investments, LLC,.
a California limited liability company, its
managing member
By: The Nicholas Company, Inc., a
Delaware corporation, its managing
member
By:
Name: William A. Witte
Its: President
11/10/2010 " y
ACCEPTANCE OF ASSIGNMENT
Effective as of the Effective Date, the Redevelopment Agency of the City of Santa Clarita, as
Assignee, hereby accepts the foregoing assignment of the Contract_ subject to all the terms and conditions
thereof and. hereof, agrees to assume and be bound by the terms and provisions of the Contract to the
same extent as Assignor, and agrees to comply with the following condition:
1. Assignee shall pay Assignor the sum of $28,000 as reimbursement to Assignor for the
Deposit made by Assignor pursuant to the Contract, concurrently with the acceptance of
this assignment.
IN WITNESS WHEREOF, Assignee has executed this Assignment, Assumption and Agreement as
of the Effective Date.
ASNAGT90.964
2
Redevelopment Agency of the
City of Santa Clarita,
By:
Its:
City of Santa Clarita,
M
Its:
11/lo/2alo
EXHIBIT A
Legal Description of the Property
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows:
LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28, PAGE(S) 20 TO 26 INCLUSIVE
OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE OF
CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS INSTRUMENT NO.
239,
OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APM -2833-01-6=037
ASNAGT90.964 3
11/10/2010
Copy of Contract
(attached)
ASNAGT90.964 4 11/10/2010
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Escrow Instructions (the "Agreement") is made as of
September 22, 2010 (the "Effective Date") by and between Kwang Su Jang, Hwa S. Park, and Yang
Soon Park (collectively "Seller"), and The Related Companies of California LLC, a California limited
liability company, and/or assignee ("Buyer"):
RECITALS
A. Seller is the owner of certain real property located in the City Santa Clarita, Los Angeles
County, California, comprised of approximately 30,261 net square feet and identified as Los
Angeles County Assessor's Parcel No. 2833-016-037 and more particularly described on
Exhibit A attached hereto (the "Property').
B. Buyer desires to acquire the Property for the purpose of developing the Property with an
apartment project (the "Project") which qualifies for tax credits ("Tax Credits") under Section 42
of the Internal Revenue Code of 1986, as amended.
C. Seller desires to sell the Property to Buyer, and Buyer desires to purchase the Property
from Seller, in accordance with the terms and conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, 'for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable_ consideration, the receipt and adequacy of
which are hereby acknowledged, Buyer and Seller hereby agree as follows:
1. SALE OF PROPERTY. Seller hereby agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, the Property on the following terms and conditions.
2. PURCHASE PRICE FOR PROPERTY. The total purchase price ("Purchase Price') for the
Property shall be Seven Hundred Thousand and Noll 00 Dollars ($700,000), which shall be paid
by Buyer to Seller as follows:
2.1. D• eposit. On or Within five (5) business days after the opening of Escrow, Buyer shall deposit
into Escrow the sum of Twenty -Eight Thousand ($28,000) (the "Deposit"). The Deposit will be
placed in an interest bearing account for the benefit of Buyer.
2.2. Escrow Holder shall release the Deposit to Seiler and the interest earned thereon to Buyer
within five (5) business days of the satisfaction or waiver of the conditions to Buyers
obligations set forth in Paragraph 4 below. Upon its release to Seller pursuant to the terms of
this paragraph ("Release of Deposit"), the Deposit shall be non-refundable to Buyer except in
the event of a default by Seller hereunder. Notwithstanding the Release of Deposit, the
Deposit shall remain fully applicable to the Purchase Price,
2.3. Balance of Purchase Price. Buyer shall deposit in Escrow, in time to permit the close thereof,
the balance of the Purchase Price.
3. ESCROW TITLE: CLOSING DATE. Within five (5) business days after the Effective Date, Buyer
and Seller shall open an escrow with a reputable escrow company of Buyer's choice ("Escrow
Holder").
3. 1. The "Close of Escrow" shall occur when the Deed conveying the Property to Buyer is
recorded in the official records of Los Angeles County, California. The Close of Escrow shall
occur on the date which is not more than ten (10) business days (the "Closing Date") after the
date all conditions to Buyer's obligations as set forth in Sections 4.1 through 4.4 below have
been satisfied or waived by Buyer in writing as such date may be extended pursuant to
Paragraph 4.5 below.
3.2. Title. Buyer may obtain (i) a current preliminary title report for the Property from a reputable
title insurance company of Buyer's choice (the 'Title Company") (the "Preliminary Report'),
and (ii) a current ALTA survey (the "Survey's of the Property. Buyer shall have until the
expiration of the Feasibility Contingency Date below to disapprove any matters shown on the
Preliminary Report, and until thirty (30) day's prior to the Closing Date to disapprove any
matters disclosed by the Survey, in either event by giving notice to Seller specifying any
matters which are disapproved by Buyer (the "Disapproved Matters"). Buyer's failure to
disapprove in writing any matter affecting title prior to the date for such disapproval shall
constitute Buyer's approval thereof. Within five (5) business days of receipt of such notice
from Buyer, Seller shall deliver. to Buyer a notice (the "Seller Notice") setting forth the
Disapproved Matters Seller agrees to eliminate prior to the Close of Escrow. If Seller fails to
deliver the Seller Notice within such five (5) business day period, Seller shall be deemed to
have agreed to eliminate all of the Disapproved Matters prior to the Close of Escrow. If Seller
fails to eliminate any Disapproved Matter prior to Close of Escrow, Buyer may elect: (a) to
accept title to the Property subject to such Disapproved Matters; or (b) to terminate this
Agreement in accordance with Section 4.4; provided, if Seller agreed or was deemed to
agree, to remove any Disapproved Matters, and Seller failed to remove such Disapproved
Matters, Buyer may pursue its rights or remedies against Seller, including, without limitation,
specific performance. Seller shall discharge all monetary liens and encumbrances of
liquidated amounts (including any prepayment penalties) other than non -delinquent taxes
affecting the Property.
4, CONDITIONS TO BUYER'S OBLIGATIONS. Buyer's obligation to close escrow is subject to the
satisfaction of the following matters ("Contingency Items") or Buyer's express .written waiver
thereof within the time periods set forth below:
4.1. Feasibility. On or before the date which is Ninety (90) days after the Effective Date, *(the
"Feasibility Contingency Date") Buyer shall have reviewed and approved, in Buyer's sole
discretion, the condition and suitability of the property for Buyer's intended use. Items subject
to review and approval may include, but not be limited to, soils studies, engineering and
geological studies, environmental studies, market evaluations, utility availability and capacity,
title, survey, and other tests, studies, maps, plans, reports, and investigations which Buyer
deems necessary. Buyer or its agents may inspect all aspects .of the Property including, but
not limited to, the physical and the environmental condition, of the Property. Prior to the
Closing Date, and notwithstanding the expiration of the Feasibility Contingency Date, Buyer
and its agents shall have full access to the Property to conduct any investigations Buyer
deems appropriate. Buyer shall indemnify Seller from any loss, damage or expense actually
incurred by Seller as a result of Buyer's entry on the Property. Seller shall, within ten (10) .
business days after the Effective Date, deliver to Buyer true and correct copies of: (i) all
insurance policies and tax bills for the Property; (ii) all reports and studies concerning the
Property in Seller's possession or reasonably available to Seller; (iii) all leases in effect with
respect to the Property; and (iv) all other documentation reasonably requested by Buyer. On
or prior to the Feasibility Contingency Date, Buyer shall provide written notice to Seller and
Escrow Holder of the failure, satisfaction or waiver of this condition to Buyer's obligations. In
the event Buyer fails to deliver such written notice on or prior to the Feasibility Contingency
Date, this condition to Buyer's obligation shall be deemed to have failed, and this Agreement
9
shall terminate in accordance with the terms of Paragraph 4.4 below,
4.2. Governmental Approvals. On or before the date which is Ninety (90) days after the Effective
Date (the "Governmental Approval Contingency Date"), Buyer shall have obtained all
approvals from all applicable "Authorities" as may be required in connection with the purchase
of the Property and/or the assignment of Buyer's rights and obligations hereunder upon terms
and conditions satisfactory to Buyer in its sole and absolute. discretion. On or prior to the
Governmental Approval Contingency Date, Buyer shall provide written notice to Seller and
Escrow Holder of the failure, satisfaction or waiver of this condition to Buyer's obligations. In
the event Buyer fails to deliver such written notice on or prior to the Governmental Approval
Contingency Date, this condition to Buyer's. obligation shall be deemed to have failed, and this
Agreement shall terminate in accordance with the terms of Paragraph 4.4 below.
4.3. Extensions. Buyer shall have the right to extend any Contingency Date referred to above and
the Closing Date for up to two (2) consecutive periods of one month each by delivering to
Escrow Holder a written request for an extension and concurrently causing Escrow Holder to
release Fourteen Thousand dollars ($14,000) of the Deposit to Seller, (each, an "Extension
Payment"). Any such Extension Payment (a) shall be earned by Seller as consideration for
the extension of the Contingency and Closing Dates, (b) shall be non-refundable to Buyer
except in the event of a default by Seller hereunder, (c) in accordance with the terms of
Paragraph 6 below shall constitute liquidated damages to Seller in the event of a default by
Buyer hereunder and (d) shall be applicable to the Purchase Price at the Close of Escrow.
Effective upon Escrow Holder's receipt of an extension request, the contingency dates and
the Closing Date shall be extended for a period of one month.
4.4. Failure of Conditions to Close of Escrow. In the event any of the conditions set forth in
Paragraphs 4.1, 4.2, 4.3 or 4.4 above are not timely satisfied or waived for any reason other
than the default of Buyer or Seller under this Agreement:
4.4.1. This Agreement, the Escrow and the rights and obligations of Buyer and Seller
hereunder and thereunder shall terminate, except as otherwise provided herein;
provided, however, no such termination shall occur until (i) Buyer has had the opportunity
to waive any condition for Buyer's benefit within five (5) business days after the later of
Buyer's receipt of written notice from Seller or Buyer's discovery that such condition will
not be satisfied, and (ii) Buyer does not elect to waive such condition; and
4.4.2. Escrow ' Halder is hereby instructed to promptly return to Buyer and Seller all
funds and documents deposited by them, respectively, into the Escrow which are
held by Escrow Holder on the date of said termination (including the Deposit and
interest thereon returned to Buyer), less, in the case of the party otherwise entitled
to any such funds, the amount of any cancellation charges required to be paid by
such party pursuant to Paragraph 4.6.3 ("Cancellation Fees and Expenses") below.
4.4.3. Cancellation Fees and Expenses. In the event the Escrow -terminates because
of the non -satisfaction of any condition for a reason other than the default of Buyer
or Seller under this Agreement, the cancellation charges required to be paid by and
to the Escrow Holder and the Title Company shall be borne by Buyer, and all other
charges shall be borne by the party incurring same. In the event this Agreement
and the Escrow terminate because of a default by either party hereunder, the
defaulting party shall be solely responsible for the payment of all cancellation
charges and fees payable in connection therewith, and shall indemnify, defend and
hold the non -defaulting party harmless from any and all claims for any such
charges and fees.
5. DOCUMENTS AT CLOSING. At the Close of Escrow, Seller shall deliver to Buyer the
following documents:
5.1. A grant deed sufficient to convey the. Property to Buyer in fee simple, subject only to
such exceptions to title approved by Buyer (the "Deed").
5.2. An affidavit of Seller, under penalty of perjury, setting forth Seller's United States Tax
identification Number, and stating that Seller is not a foreign person and is a "United
States person" as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code of 1986, as amended.
5.3. Such other documents and affidavits as may be required by Buyer or Title Company or
Escrow Holder to complete the transaction pursuant to this Agreement.
6. DEFAULT.
6.1. LIQUIDATED DAMAGES. IF NO SELLER DEFAULT EXISTS UNDER THIS
AGREEMENT AND SELLER HAS TENDERED THE DEED AND ALL OTHER
DOCUMENTS REQUIRED BY THIS AGREEMENT AND IS IN FULL COMPLIANCE
WITH ITS OBLIGATIONS HEREUNDER, AND IF BUYER FAILS TO CLOSE ESCROW
AS REQUIRED HEREBY, OR IF BUYER DEFAULTS HEREUNDER, THEN SELLER'S
SOLE REMEDY SHALL BE TO RETAIN THE DEPOSIT THEN HELD BY ESCROW
HOLDER AS LIQUIDATED DAMAGES, WHICH AMOUNT IS THE BEST ESTIMATE
BY THE PARTIES OF THE DAMAGES SELLER WOULD SUFFER FROM SUCH
BREACH, IT BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT
IMPOSSIBLE, TO FIX THE EXACT AMOUNT OF DAMAGE WHICH WOULD BE
INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER.
THEREUPON NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS, DUTIES OR
OBLIGATIONS HEREUNDER.
INITIALS:
SELLER BUYER
6.2. Seller Default. Upon any default by Seller hereunder (a "Seller Default"), or if a
condition under Section 8.1 is not met, then Buyer may (a) terminate this Agreement,
whereupon the Deposit shall be refunded to Buyer and neither party shall have any
rights or obligations hereunder; or (b) to pursue any rights or remedies available at law
or equity, including, without limitation, specific performance.
7. PRORATIONS: COSTS.
7.1. Escrow Holder shall prorate, as of the Close of Escrow, rents and current real property
taxes and assessments for the Property. Buyer shall pay its share of prorated real
property taxes and assessments through Escrow. Buyer shall be credited with any free
rent or other concessions made to tenants attributable to the period subsequent to the
Closing Date.
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5. DOCUMENTS AT -CLOSING. At the Close of Escrow, Seller shall deliver to Buyer the
following documents:
5.1. A grant deed sufficient to convey the Property to Buyer in fee simple, subject only to
such exceptions to title approved by Buyer (the "Deed").
5.2. An affidavit of Seller, under penalty of perjury, setting forth Selter's United States Tax
Identification Number, and stating that Seller is not a foreign person and is a "United
States person" as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code of 1956, as amended.
5.3. Such other documents and affidavits as may be required byq•Buyer or Title Company or
Escrow Holder to complete the transaction pursuant to.this Agreement.
6. DEFAULT,
6.1. LIQUIDATED _DAMAGES. IF NO SELLER DEFAULT EXISTS UNDER THIS
AGREEMENT AND SELLER HAS TENDERED THE DEED AND ALL OTHER
DOCUMENTS REQUIRED BY THIS AGREEMENT AND IS IN FULL COMPLIANCE
WITH ITS OBLIGATIONS HEREUNDER, AND IF BUYER FAILS TO CLOSE ESCROW
AS REQUIRED HEREBY, OR IF BUYER DEFAULTS HEREUNDER, THEN SELLER'S
SOLE REMEDY SHALL BE TO RETAIN THE DEPOSIT THEN HELD BY ESCROW
HOLDER AS LIQUIDATED DAMAGES, WHICH AMOUNT IS THE BEST ESTIMATE
BY THE PARTIES OF THE DAMAGES SELLER WOULD SUFFER FROM SUCH
BREACH, IT BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT
IMPOSSIBLE, TO FIX THE EXACT AMOUNT OF DAMAGE WHICH WOULD BE
INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER.
THEREUPON NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS, DUTIES OR
OBLIGATIONS HEREUNDER.
INITIALS:
r—•S J.
SELLER
BUYER
6.2. Seller Default. Upon any default by Seller hereunder (a "Seller Default"), or if a
condition under Section 8.1 is not met, then Buyer may (a) terminate this Agreement,
whereupon the Deposit shall be refunded to Buyer and neither party shall have any
rights or obligations hereunder, or (b) to pursue any rights or remedies available at law
or equity, including, without limitation, specific performance.
7. PRORATIONS: COSTS..
7.1. Escrow Holder shall prorate, as of the Close of Escrow, rents and current real property
taxes and assessments for the Property. Buyer shall pay it's share of prorated real
property taxes and assessments through. Escrow. Buyer shall be credited with any free
rent or other concessions made to tenants attributable to the period subsequent to the
Closing Date.
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5. DOCUMENTS AT CLOSING. At the Close of Escrow, Seller shall deliver to Buyer the
following documents:
5.1. A grant deed sufficient to convey the Property to Buyer in fee simple, subject only to
such exceptions to title approved by Buyer (the "Deed'.
5.2. An affidavit of Seller, under penalty of perjury, setting forth Seller's United States Tax
Identification Number, and stating that Seller is not a foreign person and is a "United
States person" as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code of 1986, as amended.
5.3. Such other documents and affidavits as may be required by Buyer or Title Company or
Escrow Holder to complete the transaction pursuant to this Agreement.
6. DEFAULT.
6.1, LIQUIDATED DAMAGES. IF NO SELLER DEFAULT EXISTS UNDER THIS
AGREEMENT AND SELLER HAS TENDERED THE DEED AND ALL OTHER
DOCUMENTS REQUIRED BY THIS AGREEMENT AND IS IN FULL COMPLIANCE
WITH ITS OBLIGATIONS HEREUNDER, AND IF BUYER FAILS TO CLOSE ESCROW
AS REQUIRED HEREBY, OR IF BUYER DEFAULTS HEREUNDER, THEN SELLER'S
SOLE REMEDY SHALL BE TO RETAIN THE DEPOSIT THEN HELD BY ESCROW
HOLDER AS LIQUIDATED DAMAGES, WHICH AMOUNT IS THE BEST ESTIMATE
BY THE PARTIES OF THE DAMAGES SELLER WOULD SUFFER FROM SUCH
BREACH, IT BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT
IMPOSSIBLE, TO FIX THE EXACT AMOUNT OF DAMAGE WHICH WOULD BE
INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER.
THEREUPON NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS, DUTIES OR
OBLIGATIONS HEREUNDER.
INITIALS: -� -
ELLER BUYER
6.2. Seller Default. Upon any default by Seller hereunder (a "Seller Default"), or if a
condition under Section 6.1 is not met, then Buyer may (a) terminate this Agreement,
whereupon the Deposit shall be refunded to Buyer and neither party shall have any
rights or obligations hereunder; or (b) to pursue any rights or remedies available at law
or equity, including, without limitation, specific performance.
7. PRORATI_ONS: COSTS.
7.1. Escrow Holder shall prorate, as of the Close of Escrow, rents and current real property
taxes and assessments for the Property. Buyer shall pay it's share of prorated real
property taxes and assessments through Escrow. Buyer shall be credited with any free
rent or other concessions made to tenants attributable to the period subsequent to the
Closing Date,
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5. DOCUMEN.T_S_AT_CLOSING. At the Close of Escrow, Seller shall deliver to Buyer the
following documents:
5.1. A grant deed sufficient to convey the Property to Buyer in fee simple, subject only to
such exceptions to title approved by Buyer (the "Deed'.
5.2. An affidavit of Seller, under penalty of perjury, setting forth Seller's United States Tax
Identification Number, and stating that Seller is not a. foreign person and is a "United.
States person" as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code of 1986, as amended.
5.3. Such other documents and affidavits as may be required by Buyer or Title Company or
Escrow Holder to complete the transaction pursuant to this Agreement.
6, DEFAULT.
6.1. LIQUIDATED _DAMAQU IF NO SELLER DEFAULT EXISTS UNDER THIS
AGREEMENT AND SELLER HAS TENDERED THE DEED AND ALL OTHER
DOCUMENTS REQUIRED BY THIS AGREEMENT AND IS IN FULL COMPLIANCE
WITH ITS OBLIGATIONS HEREUNDER, AND IF BUYER FAILS TO CLOSE ESCROW
AS REQUIRED HEREBY, OR IF BUYER DEFAULTS HEREUNDER, THEN SELLER'S
SOLE REMEDY SHALL BE TO RETAIN THE DEPOSIT THEN HELD BY ESCROW
HOLDER AS LIQUIDATED DAMAGES, WHICH AMOUNT IS THE BEST ESTIMATE
BY THE PARTIES OF THE DAMAGES SELLER WOULD SUFFER FROM SUCH
BREACH, IT BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT
IMPOSSIBLE, TO FIX THE EXACT AMOUNT OF DAMAGE WHICH WOULD BE
INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER.
THEREUPON NEITHER PARTY SHALL HAVE ANY FURTHER BIGHTS, DUTIES OR
OBLIGATIONS HEREUNDER.
INITIALS:
SELLER BUYER
6.2. Seller Default. Upon any default by Seller hereunder (a "Seller Default"), or 6 a
condition under Section 8.1 is not met, then Buyer may (a) terminate this Agreement,
whereupon the Deposit shall be refunded to Buyer and neither party shall have any
rights or obligations hereunder; or (b) to pursue any rights or remedies available at law
or equity, including, without limitation, specific performance.
7. PRORATIONS: COSTS.
7.1. Escrow Holder shall prorate, as of the Close of Escrow, rents and current real: property
taxes and assessments for the Property. Buyer shall pay it's share of prorated real
property taxes and assessments through Escrow. Buyer shall be credited with any free
rent or other concessions made to tenants attributable to the period subsequent to the
Closing Date.
4
I.ADdCS2;917208.213219159-3219158001
7.2. Buyer shall pay all documentary transfer taxes, recording fees, Title Insurance (the
"Title Policy) costs and other escrow fees and charges up to a maximum amount of
$6,000. Buyer and Seller shall equally share all escrow fees and charges greater than
$6,000.
8. CONDITIONS PRECEDENT TO CLOSE OF ESCROW.
8.1. Conditions to Buyer's Obligations. The obligations of Buyer under this Agreement shall
be subject to the satisfaction or waiver of each of the following:
8.1.1. Title Company issues the Title Policy in a form approved by Buyer.
8.1.2. Seller shall not be in default of this Agreement.
8.1.3. The approvals and conditions provided for in Section 4 of this Agreement have
been met.
8.1.4. There has occurred no material change to the condition of the Property or title to
the Property (except the elimination of Disapproved Matters) since the Effective
Date, unless approved in writing by Buyer.
8.2. Conditions to Seller's Obligations. The obligations of Seller under this Agreement shall
be subject to the satisfaction or waiver of each of the following:
8.2.1. Escrow Holder holds and will deliver to Seller the funds accruing to Seller
pursuant to this Agreement.
8.2.2. Buyer shall not be in material default of this Agreement.
9. AS -IS PURCHASE: WARRANTIES AND REPRESENTATIONS.
9.1. Buyer acknowledges that, except as set forth in this Agreement, Buyer is acquiring the
Property from Seller on an AS -IS basis, Notwithstanding the foregoing, Seller hereby
warrants, represents and covenants to Buyer as follows:
9.1.1. Buyer shall be entitled to possession of the. Property at the Close of Escrow, free
from all rights of occupancy. Seller shall pay all relocation costs associated with
termination of any leases at the Property.
9.1.2. There are no agreements affecting the Property, except for those delivered to
Buyer. All documents delivered to Buyer are true and complete.
9.1.3. There is no litigation, proceeding or governmental investigation, pending
threatened against or relating to the Seller or the Property.
9.1.4. To the best of Seller's knowledge, the Property is not in violation of any federal,
state or local law, ordinance or regulation (collectively, "Laws"). During the time in
which Seller owned the Property, no use, discharge, release, generation,
manufacture, storage or disposal has occurred of on, under or about the Property
or transport to or from the Property of any material defined as hazardous under any
Laws (collectively, "Hazardous Materials"). The Property does not now contain, nor
LADOCS2:617208.2l3219159.3219159001
15
did the Property previously contain, any storage or underground tanks. Seller has
not received any notice from any governmental agency pertaining to Hazardous
Materials.
9.2. The representations, warranties and covenants of Seller in this Agreement shall be true
upon the execution of this Agreement, and shall be deemed to be repeated at the Close
of Escrow, and shall survive the Close of Escrow.
10. SELLER'S COVENANTS. Seller covenants that, from the date hereof:
.10.1. Seller shall not enter into contracts (or renew contracts presently in effect)
affecting the Property that cannot be canceled on thirty (30) days' notice.
10.2. Buyer and its agents shall have full access during normal business hours to all
books, accounts, records and documents relating to the Property.
10.3. Seller will maintain the Property in the same condition as of the date hereof,
reasonable wear and tear excepted.
11. BROKERS: COMMISSIONS. Buyer and Seller each represent and warrant to the other that
neither has had any dealing with any person, firm, broker or finder in connection with the
negotiation of this Agreement and/or the consummation of the purchase and sale
contemplated hereby, except Henry Kim, RE/MAX Tri -City Realty. ("Broker"). Buyer agrees
to pay a brokerage commission of $28,000 to Broker through Escrow upon the Close of
Escrow. Buyer and Seller each do hereby indemnify and hold the other harmless from and
against any costs, expenses or liabilities for compensation, commissions or charges which
may be claimed by any other broker, finder or similar party by reason of any actions of the
indemnifying party.
12. NOTICES. All notices required or permitted hereunder shall be in writing and shall be
deemed' given upon (a) personal service or delivery by messenger, (b) three (3) business
days following deposit in the United States first class mail, postage prepaid, (c) twenty-four
(24) hours after deposit before the daily deadline time with a reputable overnight courier, or
(d) facsimile transmission (confirmation received). The addresses of the parties are as set
forth in the signature pages of this Agreement:
13, NO OBLIGATION: FEDERAL REVIEW. Notwithstanding any other provision of this
Agreement,' Buyer shall have no obligation to purchase the Property, and no transfer of title
to Buyer may occur, unless and until Buyer has provided Seller with a written determination,
on the basis of a federally required environmental review and an approved request for
release of federal funds, that purchase of the property by Buyer may proceed, subject to any
other Contingencies in this Agreement, or may proceed only if certain conditions to address
issues in the environmental review shall be satisfied before or after the purchase of the
property. Buyer shall use its best efforts to conclude the environmental review of. the
property expeditiously.
LADOCS2:617208213219159-3219159001
lb
14. GENERAL PROVISIONS.
14.1. Integration. This Agreement represents the full and entire Agreement among
the parties and supersedes all prior agreements, whether written or oral. The parties
warrant, promise and represent, that in executing this Agreement they are not relying
upon any oral representations, promises, or statements and that they are not relying
upon any promises, statements or representations contained in any other written
document.
14.2. Severability. if any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable for whatever reason, the remaining
provisions not so declared shall nevertheless continue in full force and effect without .
being impaired in any manner whatsoever.
14.3. Binding: Counterparts. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors or assigns. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original.
14.4. Assignment, Buyer may assign this Agreement and its rights and obligations
hereunder by delivery of written notice of such assignment to Seller, provided that such
assignee agrees to be bound, to the same extent as the assignor, by the provisions of
this Agreement and expressly assumes the obligations of the assignor hereunder.
14.5. Attorneys' Fees; Governing Law. The prevailing party in any action with respect
to this Agreement shall be entitled to recover all costs, expenses and reasonable
attorneys' fees incurred in connection therewith, including upon appeal. This Agreement
shall be interpreted in accordance with the laws of the State of California.
14.6. Further Assurances. Each of the Parties hereto shall execute and deliver any
and all additional papers, documents, instruments and other assurances and shall to do
any and all other acts and things reasonably necessary to carry out the purposes of this
Agreement and the intent of the Parties hereto.
(SIGNATURE PAGE FOLLOWS)
7
LADOCS2:617208.213219159.3219159001
IN WITNESS WHEREOF, this Agreement has been duly executed.
"SELLER"
By: By:
Kwang Su Jang
By:
Yang Soon Park
Address of Seller:
Phone:
Fax:
Hwa S. Park
"BUYERTI
The Related Companies of California, LLC,
a California limited liability company
By: Nicholas Real Estate Investments, LLC
a California limited liability company, its managing member
By: The Nicholas Company, Inc.,
a Delaware corporation, its managing member
By:
William A. Witte, President
8
LADOCS2:617208.2132191593219159001
Address of Buyer. .
The Related Companies of California, LLC
18201 Von Karman Avenue, Suite 900
Irvine, California 92612
Attention: William A. Witte
Telephone: (949) 660-7272
Facsimile: (949) 660-7273
' 9
LADOCS2:617208.7/3219159.3219159001
09/22/2010 09:34 3239068365 REMAX_TRICITY PAGE 02/02
IN WITNESS WHEREOF, this Agreement has been duly executed.
"SELLER"
By. AAM BY
Kwang Su Jang Hwa S. Park
By:
Yang Soon Park
Address of Seiler:
Phone:
Fax:
"BUYER"
The Related Companies of California, LLC,
a Califomia limited liability company
By: Nicholas Real Estate Investments, LLC
a California limited liability company, its managing member
By: The Nicholas Company, Inc.,
a Delaware corporation, its managing member
By:
William A. Witte, President
8
A npCS208172as.2Is21 0159-321915000
a�
09/22/2010 12:12 3239068365
REMAX_TRICITY
IN WITNESS WHEREOF, this Agreement has been duly executed.
"SELLER" .
By: - By:
Kwang Su Jang Hwa S. Park
By. 4
ang Soon Park
Address of,Seller
Phone:^—
i
Fax: _
"BUYER"
The Related Companies of California, LLC,
a California limited liability company
By: Nicholas Real Estate Investments, LLC
a California limited liability company, its managing member
By: The Nicholas Company, Ific.,
a Delaware corporation, its man ging member
i By.
William A. Witte, President
LAD00U017208.0321915t- :?19159001
PAGE 02/02
a�
09/21/2010 18:49 3239068365
REMAX_TRICITY
IN WITNESS WHEREOF, this Agreement has been duly executed..
"SELLER"
By:
Sy.
Kwang Su Jang Hwa S. Park
By:
Yang Soon Park
Aqdress of Seller:
Phone:
Fax:
"'BL YER"
The Related Companies of California, LLC,
A California limited liability company
By: Nicholas Real Estate Investments, LLC
a California limited liability company, its managing member
By: The Nicholas Company, Inc.,
a Delaware corporation, its managing member
By:
William A. Witte, President
LADQCS 2:017260.213219159-3210159001
PAGE 01/02
EXHIBIT A
Legal Description
i
10
LADOCS2:6172082132 9 9159.321 9 1 59001
Order Number: OSA-3619797 (50)
Page Number: 6
LEGAL DESCRIPTION
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described as
follows:
LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28, PAGE(S) 20 TO 26 INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE OF
CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS INSTRUMENT NO. 239,
OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN:2833-016-037
FirstAmerican Title
EXCLUSIVE NEGOTIATION AGREEMENT
This EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement") is made as of this
day of November, 2010, by and between the REDEVELOPMENT AGENCY OF
THE CITY OF SANTA CLARITA, a public body, corporate and politic (the "AgencX"), THE
CITY OF SANTA CLARITA, a municipal corporation (the "Lily"), THE RELATED
COMPANIES OF CALIFORNIA, LLC , a California limited liability company ("Related") and
NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA, a California nonprofit public
benefit corporation ("CORE"), on the terms, and subject to the conditions, set forth below. The
Agency and the City are sometimes referred to herein collectively as "Agency/City." Related
and CORE are sometimes referred herein collectively as the "Developer." Santa Clarita and
Developer are sometimes referred to herein collectively as the "Parties," and either individually
as a "Party." As used in this Agreement, the terms Related and CORE shall include a single
purpose entity formed by Related and CORE for the purpose of developing and operating the
projects defined below.
RECITALS
A. The Agency/City desires to encourage and effectuate the redevelopment of the
real property described on Exhibit A attached hereto and made a part hereof, and designated as
the proposed development site ("Site"). The Site is composed of two parcels consisting of
approximately 1.6 acres and .74 acres, respectively, that Developer intends to develop in no
fewer than two phases, including the following:
Parcel Assessor's Parcel Number
2833-016-900
2 2833-016-037
B. Developer desires to determine the feasibility and terms under which it could
develop an affordable multifamily residential project on Parcel 1 as Phase One ("Phase I
Project"), and a mixed use retail/residential project on Parcel 2 as Phase Two ("Phase II
Project"), and to negotiate with the Agency/City the potential terms of a Disposition and
Development Agreement (the "DDA") for the Phase I Project and to subsequently amend the
DDA or create a new DDA to include Phase II of the Project. The Phase I Project and Phase II
Project are sometimes collectively referred to as the "Projects."
C. The Parties desire to enter into this Agreement to provide an exclusive negotiation
period to Developer with the intent of establishing mutually acceptable terms and conditions for
developing and operating the Projects upon the Site in the manner proposed by Developer and
specifically, to determine if mutually acceptable terms and conditions can be agreed upon for
each DDA which would specify the rights, obligations and the method and amount of financial
participation of the Parties with respect to development of the Projects.
LA #4834-6720-0003 v]
AGREEMENT
1. Exclusive Good Faith Negotiations.
The Parties agree that during the Negotiation Periods (as defined in Section 3 below), and
so long as Developer timely .meets its obligations under this Agreement, they shall negotiate
exclusively and in good faith regarding the proposed development and operation of the Project
upon the Site, and the terms of a DDA for the Phase I Project, followed by an amendment of
DDA or the creation of a new DDA for the Phase II Project. Good faith negotiations shall
include, without limitation, attending scheduled meetings, directing consultants to cooperate with
the other Party to the extent reasonably practicable and necessary to negotiations, providing
information reasonably available and necessary to negotiations, and promptly reviewing and
returning any comments on correspondence, reports, documents, or agreements received from
the other Party.
2. Development Concept/Scope.
The negotiations hereunder will be based on a development concept that includes the
redevelopment of the Site within the boundaries of, and consistent with, the Newhall
Redevelopment Area plan and any other applicable City development standards. The final details
regarding specific density, square footages, height, building and unit mix and overall design are
to be determined as a part of the exclusive negotiations to be conducted pursuant to this
Agreement.
Phase I Project
The Phase I Project is anticipated to be developed on Parcel 1 (APN 2833-016-
900) which the City is in the process of acquiring from Caltrans. Phase I will be designed as a
stand-alone project containing approximately 35 units of high quality, affordable, multi -family
housing in a 3 -story design. The Phase I Project will include common area amenities such as a
community recreation center and children's play area. All of the units are expected to have
affordability restrictions as agreed between the Agency/City and Developer.
Phase II Project
The Phase II Project is anticipated to include Parcel 2 (APN 2833-016-037) consisting of
approximately .74 acres of vacant land. The Phase II Project is anticipated to be a high quality
mixed-use retail/residential project, however the exact scope of the Phase II Project will be
determined during the Phase II Negotiation Period, as defined below.
3. Negotiation Period.
a. Phase I Project Negotiation Period. The period of exclusive negotiation
established under this Agreement for purposes of negotiating the terms of a DDA for the Phase I
LA #4834-6720-0003 vl 2
Project shall be ninety (90) calendar days from the date this Agreement is approved by the
Agency Board, subject to extension or termination as provided below (the "Phase I Negotiation
Period").
b. Phase II Project Negotiation Period. The period of exclusive negotiation
established under this Agreement for purposes of negotiating the terms of a DDA for the Phase II
Project shall be two hundred seventy (270) calendar days from the expiration of the Phase I
Negotiation Period, subject to extension or termination as. provided below (the "Phase 11
Negotiation Period"). If the Phase I Negotiation Period terminates _without the Parties having
negotiated a DDA for the Phase I Project, the Phase II Project Negotiation Period will not start;
provided, however, if the Parties mutually agree to abandon negotiations for the DDA on the
Phase I Project due to factors beyond the reasonable control of either Party, e.g., unforeseen site
conditions, unknown site contamination or, if the Parties agree to commence the Phase II
Negotiation Period during negotiations for the Phase I Project DDA, then the Phase II Project
Negotiation Period may commence.
C. Extension of the Phase I and Phase II Negotiation Periods. If, by the expiration of
either the Phase I or Phase II Negotiation Periods, as the case may be, Developer has not
achieved necessary and satisfactory progress toward the negotiation of either DDA, then
Agency/City or Developer may terminate this Agreement upon prior written notice delivered to
the other. If Developer has made substantial progress toward the negotiation of either DDA, as
reasonably determined by the Agency Executive Director/City Manager in his sole discretion,
the Agency Executive Director/City Manager may extend the term of either the Phase I
Negotiation Period or the Phase II Negotiation Period, as the case may be, for another ninety (90)
calendar days ("Extension Period').
4. Negotiation of the DDA.
During the Phase I and Phase II Negotiation Periods, the Agency/City and Developer
shall negotiate diligently and in good faith to prepare one or more DDA's, and any necessary
DDA amendments for consideration by the Agency Board and City Council. Both Parties shall
exercise best efforts to complete discussions relating to the final terms and conditions of the
DDA's and any amendments, and such other matters, as may be mutually acceptable to the
Parties for the development of the Phase I and Phase II Projects on the Site, prior to the
expiration of the Phase I Negotiation Period and Phase II Negotiation Period, as applicable.
It is contemplated that the DDA will include, at a minimum, the following particulars:
a. Property. A description of each parcel of real property comprising the Site.
b. Assi ng ability. Restrictions on the transferability or assignability of the Site and
DDA; provided, however, Developer shall have the right to assign its interests in the DDA and,
to the extent it becomes vested with title or a leasehold interest in the Site, its interest in the Site,
to one or more single purpose Developer -controlled entities formed to own, develop and operate
the Phase I and Phase II Projects.
C. Scope of Development and Use. The DDA, and any amendments as applicable,
will describe the Projects in specific detail, including number and type of units,
LA #4834-6720-0003 v 1 3
2-`+
retail/commercial square footage, parking, number of stories, architectural style, etc. and may
include identification of tenants or tenant mix. It is anticipated that the Phase I Project will
include a minimum of 35 residential units. The development shall utilize a high quality of
architectural design and materials.
d. Schedule of Performance. The DDA will include a Schedule of Performance
which, among other milestone dates, will include processing of land use entitlements by
Developer with the City, demolition of existing improvements, if required, and construction of
the Projects within specified deadlines, subject to delays due to force majeure.
C. Relocation. The DDA shall include provisions regarding the Agency's
relocation of tenants (if any) from the Site and allocation of any costs associated therewith.
f. Financial Assistance. Agency and City financial assistance will be negotiated
during the term of the ENA.
g. Indemnification. The DDA will include provisions for the defense and
indemnification of the Agency and City by Developer. Developer will not be required to
indemnify the Agency or City for the Agency's or City's negligent or intentional acts or
omissions.
h. No Third Party Beneficiaries. The DDA will be drafted for the sole benefit of the
Parties and their successors in interest. No other person shall have any right of action based
upon any provision of the DDA.
i. Governing Law. The laws of the State of California shall govern
interpretation and enforcement of the DDA. Any action, suit or proceeding related to, or arising
from the DDA shall be filed in the appropriate court having jurisdiction in the County of Los
Angeles.
5. Developer Submittals for Negotiation and Costs.
Developer agrees to submit such documentation as is reasonably be required by the
Agency/City to assist in the negotiation of the DDA. Such documentation shall include, at a
minimum, site plans, land use inventory, development calendar and phasing plan, financials,
construction and operating pro formas, marketing program including any tenant commitments,
parking studies, and any market feasibility studies. The pro forma shall include costs of all
elements of the project, including development costs and sources of financing, as well as
payment of all associated fees. Subject to the reimbursement provisions of Section 9 below, all
documents, plans and studies shall be prepared at Developer's sole expense. The Agency/City
shall bear its own costs incurred in the negotiations contemplated by this Agreement, including
staff and consultant time.
6. Access to Reports and Studies.
a. Provided that disclosure will not compromise the exemption, if any, of the
documents from public inspection under the California Public Records Act, Developer shall
provide Agency/City access. to all studies, reports and analyses prepared by Developer for the
LA #4834-6720-0003 v] 4
z7"
negotiations.
b. Except as may be otherwise required by the California Public Records Act, the
Agency/City agrees that during the Phase I and Phase II Negotiation Periods it will not disclose
to third parties the names of tenants who have expressed interest in the Site to Developer,
provided, however, that Agency shall not be liable to Developer for any damages arising from an
inadvertent, negligent or willful breach of this confidentiality.
7. Chane in Ownership or Control of Developer.
Developer understands the Agency/City is entering into this ENA based on the
Developer's response to a Request for Qualification process conducted in'2006, and on the prior
experience and qualifications of Related and CORE. Therefore, except as specifically permitted
by this Agreement, Developer shall not assign, sell or otherwise transfer any or all of its rights
under this ENA to any party, without the prior written approval of Agency, at its sole discretion.
8. No Obligation by Agency to enter in DDAs or other related Agreements.
This Agreement is merely an agreement to enter into a period of exclusive negotiations
according to the terms hereof, reserving final discretion by the Agency and City as to any DDA
and all proceedings and decisions in connection therewith. By its execution of this Agreement,
Agency and City are not committing themselves to or agreeing to enter into a DDA with
Developer, or to undertake any other acts or activities requiring the subsequent independent
exercise of discretion by the Agency, the City or department thereof. Developer understands and
acknowledges that any DDA resulting from the negotiations hereunder shall become effective
only after and only if such DDA has been considered and approved by the Agency Board and/or
the City Council at a public hearing called for such purpose.
9. Reimbursement of Costs.
a. Phase I Project. If, following negotiation pursuant to this Agreement, the Agency
does not execute a DDA for the Phase I Project that is consistent with the deal points described
in Section 4 herein or if, following the execution of a DDA for the Phase I Project, Developer
fails to obtain an allocation of low income housing tax credits after submitting two applications
for such tax credits, then Developer shall be entitled to reimbursement from the Agency for its
out-of-pocket costs incurred in developing the items described in Section 5 above, and the items
listed in this Section 9.a., -not to exceed the sum of $200,000. Such reimbursement under this
Section 9.a. shall be limited to professional architecture and engineering fees, market and other
required studies, City processing/entitlement fees, appraisals specifically required for financing
applications, financing application and commitment fees, and TCAC application fees. Such
amount shall also be the sole source of reimbursement/cost recovery afforded Developer and
Developer shall not be entitled to seek any additional moneys from Agency or City. In return for
such reimbursement, Developer shall assign its interests in such items to the Agency, without
warranty or representation regarding their accuracy, completeness or fitness for use in the
development of the Phase I Project.
LA #4834-6720-0003 vl
b. Phase II Project. If, following negotiations pursuant to this Agreement for the
Phase II Project, the Parties do not execute the DDA amendments, or a separate DDA, relevant
to the Phase II Project or if, following the execution of the DDA amendments or separate DDA
for the Phase 11 Project, Developer fails to obtain an allocation of low income housing tax credits
after submitting two applications for such tax credits, then Developer shall be entitled to
reimbursement from the Agency/City for its out-of-pocket costs incurred in developing the items
described in Section 5 above, and for the items set forth in Section 9.a. above, not to exceed the
sum of $200,000 less any amount of reimbursement provided by Agency/City for the Phase I
Project. Such reimbursement shall be limited to the items set forth in Section 9.a. above and
such amount shall also be the sole source of reimbursement/cost recovery afforded Developer
and Developer shall not be entitled to seek any additional moneys from Agency or City. In
return for such reimbursement, Developer shall assign its interests in such items to the Agency,
without warranty or representation regarding their accuracy, completeness or fitness for use in
the development of the Phase II Project.
10. Limitation on Liability.
Excepting the Agency's/City's obligation to reimburse Developer pursuant to the terms
of Section 9 above, both Parties acknowledge and agree each Party's exclusive right and remedy
upon any breach or default of the other party to negotiate in good faith, as set forth in this ENA,
is to terminate this ENA.
11. Indemnity.
To the extent Developer or its contractors or consultants enter upon either the Phase I or
II Project sites to conduct investigations or studies, Developer agrees to and hereby does defend,
hold harmless and indemnify Agency, City and each of their elected or appointed officials,
officers, agents and employees (the "Indemnified Parties") from third -party claims for damages
arising from Developer's acts or omissions; provided, that the obligation to defend does not
apply to actions arising solely from the Indemnified Parties' acts or omissions.
12. Notice.
Any notices pursuant to this Agreement shall be in writing and sent (i) by Federal
Express (or other established express delivery service which maintains delivery records), (ii) by
hand delivery, or (iii) by certified or registered mail, postage prepaid, return receipt requested, to
the following addresses:
TO AGENCY: Redevelopment Agency of the City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, California 91355
Attn: Kenneth R. Pulskamp, Executive Director
TO CITY: The City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, California 91355
Attn: Kenneth R. Pulskamp, City Manager
LA 44834-6720-0003 v 1
TO RELATED: The Related Companies of California
18201 Von Karman Avenue, Suite 900
Irvine, California 92612
Attn: Frank Cardone
TO CORE: National Community Renaissance of California
9065 Haven Ave, Suite 100
Rancho Cucamonga, CA 91730
Attn: Richard J. Whittingham, Chief Financial Officer
13. Entire Agreement; Time is of the Essence.
This Agreement (including all exhibits attached hereto) constitutes the entire
understanding and agreement of the Parties integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements between the
parties of their predecessors in interest with respect to all or any part of the subject matter hereof.
This Agreement may be executed in one or more counterparts, each of which shall be an original,
and all of which together shall constitute a single instrument. Time is of the -essence in this
Agreement.
14. Governing Law.
This Agreement shall be construed in accordance with the laws of the State of California.
In Witness Whereof, the Parties have had their duly authorized officers execute this
Agreement effective as of the date first above written.
RELATED:
The Related Companies of California, LLC,
a California limited liability company,
By: Nicholas Real Estate Investments, LLC,
a California limited liability company, its managing member,
By: The Nicholas Company, Inc., a.
Delaware corporation, its managing member,
Name: William A. Witte
Its: President
LA #4834-6720-0003 vl 7
CORE:
National Community Renaissance of California
a California nonprofit public benefit corporation
By:
Name: Richard J. Whittingham
Its: Chief Financial Officer
AGENCY:
THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARITA ,
a public body corporate and politic
By:
Kenneth R. Pulskamp, Executive Director
ATTEST:
Commission Secretary
CITY:
THE CITY OF SANTA CLARITA, a municipal corporation,
By:
Kenneth R. Pulskamp, Executive Director
LA #4834-6720-0003 v]
n.
3z
ATTEST:
City Clerk
LA #4834-6720-0003 v] 9 5
EXHIBIT A
[LEGAL DESCRIPTION OF SITES ]
Parcel 1:
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
THAT PORTION OF LOT 1 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECOREDED IN
BOOK 28, PAGE 20, ET SEQ. OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE SOUTHWEST LINE OF SAID LOT, DISTANT
THERON SOUTH 530 43' EAST 190.89 FEET FROM THE MOST WESTERNLY CORNER
OF SAID LOT; THENCE PARALLEL WITH THE NORTHWEST LINE OF SAID LOT
NORTH 270 00' EAST 362.37 FEET TO THE NORTHEAST LINE OF SAID LOT; THENCE
ALONG SAID NORTHEAST LINE SOUTH 630 04'44" EAST 141.12 FEET TO AN ANGLE
POINT IN SAID NORTHEAST LINE; THENCE ALONG SAID NORTHEAST LINE SOUTH
510 44' 55" EAST 47.29 FEET TO A LINE PARALLEL WITH THE NORTHWEST LINE OF
SAID LOT AND PASSING THROUGH A POINT IN THE SOUTHWEST LINE OF SAID
LOT, DISTANT SOUTHEASTERNLY THERON 190 FEET FROM THE POINT OF
BEGINNING.
APN: 2833-016-900
Parcel 2:
Real property in the City of Santa Clarita, County of Los Angeles, State of California, described
as follows:
LOT 52 OF TRACT NO. 2703, IN THE CITY OF SANTA CLARITA, COUNTY OF LOS
ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 28, PAGE(S) 20 TO 26
INCLUSIVE OF
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTHWESTERLY 20 FEET AS GRANTED TO THE STATE
OF
CALIFORNIA PER THE DOCUMENT RECORDED JANUARY 21, 1975 AS INSTRUMENT
NO. 239,
OFFICIAL RECORDS, IN SAID COUNTY RECORDERS OFFICE.
APN: 2833-016-037
LA #4834-6720-0003 v1 10
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