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HomeMy WebLinkAboutResolution No. 06-R16RESOLUTION NO.06-1116 A RESOLUTION OF THE AZUSA REDEVELOPMENT AGENCY BOARD OF DIRECTORS APPROVING A NEGOTIATION AGREEMENT BETWEEN THE AGENCY AND WATT GENTON ASSOCIATES PERTAINING TO CERTAIN PROPERTY WHICH IS GENERALLY BORDERED BY NINTH STREET ON THE NORTH, FOOTHILL BOULEVARD CORRIDOR ON THE SOUTH, SAN GABRIEL AVENUE ON THE WEST AND SOLDANO AVENUE ON THE EAST (DOWNTOWN NORTH AREA) THE BOARD OF DIRECTORS OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DOES HEREBY RESOLVE AS FOLLOWS: WHEREAS, the Agency is authorized by the Community Redevelopment Law (Health & Safety Code Sections 33000 et sea.) and other applicable law to undertake redevelopment projects in order to best accomplish the purposes and goals of the redevelopment plans for the Agency's various project areas; WHEREAS, the Agency desires to enter into that certain "Negotiation Agreement (Downtown North Project)" ("Agreement"), a copy of which is attached hereto as Exhibit A, with Watt Genton Associates ("Developer") for the purposes of negotiating the preparation of a future agreement which, if approved by the Agency and the Developer, would provide for the disposition and development of certain real property within the City, generally bordered by Ninth Street on the north, the Foothill Boulevard Corridor on the south, San Gabriel Avenue on the west and Soldano Avenue on the east; and WHEREAS, the Agency staff has determined that the approval of the Agreement could not have a foreseeable effect on the environment, in that it can be seen with certainty that the Agreement does not commit or permit either the Agency or the Developer to undertake any activity which may lead to significant direct or indirect environmental changes. Accordingly, Agency staff has recommended to the Agency's Board of Directors that the Board of Directors determine that the approval of the Agreement is not a "Project" subject California Environmental Quality Act (Public Resources Code Section 21000, et seg.) ("CEQA") review pursuant to CEQA Guidelines Section 15378. NOW, THEREFORE, BE IT RESOLVED, by the Board of Directors of the Redevelopment Agency of the City of Azusa as follows: SECTION 1. That certain Negotiation Agreement (Downtown North Project) by and between the Redevelopment Agency of the City of Azusa and Watt Genton Associates dated as of May 15, 2006 is hereby approved and the Executive Director is hereby authorized to execute the Agreement on behalf of the Agency in substantially the form attached hereto. The Executive Director is further authorized, with the concurrence of Agency Counsel, to approve and execute on behalf of the Agency such Dm inClDocu end Se ngeleal MwkwpVWy15,2"06embNdW,d -I- non -substantive amendments and implementing documents as may be convenient to the administration of the Agreement. SECTION 2. The Board of Directors hereby determines that it can be seen with certainty that the approval of the Agreement will not result in any direct or indirect environmental effects, in that the Agreement is simply an agreement to negotiate and does not commit or permit either the Agency or the Developer to take any actions which could have a direct or indirect material impact upon the environment. Accordingly, Agency staff is directed to file a notice of exemption pursuant to state CEQA guidelines section 15378 and the Agency's local CEQA guidelines with the Los Angeles County Clerk within three (3) days from the adoption of this Resolution. SECTION 3. The Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 15' Day of May, 2006. Chairman 1 HEREBY CERTIFY that the foregoing Resolution was duly passed, approved, and adopted by the Board of Directors of the Redevelopment Agency of the City of Azusa, at a regular meeting of said Board held on the 15`h day of May, 2006, by the following vote of the Board: AYES: BOARDMEMBERS: HARDISON, CARRILLO, ROCHA, HANKS NOES: BOARDMEMBERS: NONE ABSTAIN: BOARDMEMBERS: CHAGNON ABSENT:/ BOARDMEMBERS: NONE Secretary APPROVED AS TO FORM: By: -14( r -w g City Attorney W anent in May] S, 2W6rnb nL.dM —2— 0 EXHIBIT A Negotiation Agreement (Downtown North Project) [attached behind this page] RVPUMKRANDOLPM707457.2 EXHIBIT A 0 • REDEVELOPMENT AGENCY OF THE CITY OF AZUSA EXCLUSIVE NEGOTIATION AGREEMENT (Downtown North Project) THIS EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement") is dated as of MAY 23, 2006, for reference purposes only, and is entered into by and between the Redevelopment Agency of the City of Azusa, a public body corporate and politic ("Agency"), existing and acting pursuant to the California Community Redevelopment Law (Health and Safety Code Section 33000, et seq.) ("CRL"), and Watt Genton Associates, a California limited partnership ("Developer"), to provide a specified period of time to attempt to negotiate a disposition and development agreement. The Agency and the Developer are sometimes referred to in this Agreement individually, as a "Party" and, collectively, as the "Parties." This Agreement is entered into by the Parties with reference to the following recited facts (each, a "Recital" )i RECITALS A. The City of Azusa, California ("City"), approved and adopted the redevelopment plan ("Redevelopment Plan") for the redevelopment project area known as the "Merged Central Business District Redevelopment Project Area" covering a certain geographic area within the City ("Project Area"). B. The Agency approved and adopted owner participation rules ("OP Rules") and an implementation plan ("Implementation Plan") for the Redevelopment Plan. To the extent not currently contemplated by the Implementation Plan, the Agency shall process and consider an amendment to the Implementation Plan which will provide for, among other things, the redevelopment of that certain portion of the Project Area referred to as "Downtown North" ("Downtown North Area") with transit oriented public and private uses in the vicinity of a future Gold Line rail station, including national retail uses, civic facilities, and public library. C. The Downtown North Area is generally bounded by 9th Street to the north, Foothill Boulevard Corridor to the south, San Gabriel Avenue to the west and Soldano Avenue to the east (excluding certain areas carved out to protect existing singlefamily housing stock). The Downtown North Area is depicted on the site map attached to this Agreement as Exhibit A and incorporated into this Agreement by this reference. D. The Developer has proposed the redevelopment of the Downtown North Area as a mixed use project comprised of ground -floor retail and/or commercial uses and upper floor residential uses, to be generally depicted in a conceptual site plan to be prepared in conjunction with the MOU (as defined in Section 4.1(f) below) ("Project"); and E. The intent of both the Agency and the Developer in entering into this Agreement is to establish a specific, limited period of time to negotiate regarding a future disposition and development agreement ("DDA") between them governing the potential redevelopment of the Project in the Downtown North Area by the Developer, all subject to mutually agreeable terms, conditions, covenants, restrictions and agreements to be negotiated and documented in the future DDA. NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE AGENCY RELATING TO THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN AND THE R VP UB I K VARNERV 1 18 86.4 1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this Agreement, in their entirety, by this reference. 2. Deposits. (a) Concurrent with the Developer's execution of this Agreement, the Developer shall pay to the Agency a deposit in the amount of Ten Thousand Dollars ($10,000) in immediately available funds with the Agency ("Initial Deposit") to ensure that the Developer will proceed diligently and in good faith to fulfill its obligations under this Agreement during the initial ninety (90) calendar day term of the Negotiation Period (as defined in Section 3(a)), as part of the consideration for the Agency's agreement not to negotiate with other persons during this initial ninety (90) day period, and to defray certain costs incurred by the Agency in pursuing the contemplated negotiations with the Developer during this initial ninety (90) day period, pursuant to this Agreement. The Initial Deposit will be refundable to the Developer upon the termination or expiration of this Agreement for any reason at any time prior to the Agency governing board's approval of the MOU. Following the Agency governing board's approval of the MOU, the Initial Deposit shall be fully earned by the Agency and shall be non-refundable to the Developer. (b) Within five (5) calendar days from the MOU Approval Date (defined in Section 4.1(f)), if any, the Developer shall deposit an additional Fifteen Thousand Dollars ($15,000) in immediately available funds with the Agency ("First Extension Deposit"). The First Extension Deposit is intended to ensure that the Developer will proceed diligently and in good faith to fulfill its obligations under this Agreement during the extension of the Negotiation Period described in Section 3(b), as part of the consideration for the Agency's agreement not to negotiate with other persons during any such extension of the Negotiation Period, and to defray certain costs incurred by the Agency in pursuing the contemplated negotiations with the Developer during any such extension of the Negotiation Period, pursuant to this Agreement. The First Extension Deposit shall be fully earned by the Agency when made and shall be non-refundable to the Developer. (c) Within five (5) calendar days from the extension of the Negotiation Period pursuant to the provisions of Section 3(c), if any, the Developer shall deposit an additional Fifteen Thousand ($15,000) in immediately available funds with the Agency ("Second Extension Deposit"). The Second Extension Deposit is intended to ensure that the Developer will proceed diligently in good faith to fulfill its obligations under this Agreement during the extension of the Negotiation Period described in Section 3(c), as part of the consideration for the Agency's agreement not to negotiate with other persons during any such extension of the Negotiation Period, and to defray certain costs incurred by the Agency in pursuing the contemplated negotiations with the Developer during any such extension of the Negotiation Period, pursuant to this Agreement. The Second Extension Deposit shall be fully earned by the Agency when made and shall be non-refundable to the Developer. 3. Term of Agreement. (a) The rights and duties of the Agency and the Developer established by this Agreement shall commence on the first date on which all of the following have occurred (the "Effective Date"): (1) execution of this Agreement by the authorized representative(s) of the Developer and delivery of such executed Agreement to the Agency, (2) payment of the Initial Deposit to the Agency by the Developer, in accordance with Section 2(a), and (3) approval of this Agreement by the Agency's governing body and execution of this Agreement by the authorized representative(s) of the Agency and delivery of such executed Agreement to the Developer. The Agency shall deliver a fully executed counterpart original of this Agreement to the Developer, within ten (10) calendar days following the Agency governing body's approval of this Agreement, if approved, and the execution of this Agreement R VP UB 1 KVARNER 1711886.4 by the authorized representative(s) of the Agency. This Agreement shall continue in effect for the period of ninety (90) consecutive calendar days immediately following the Effective Date ("Negotiation Period"), subject to the limitations of Section 9. (b) Upon the occurrence of the, MOU Approval Date, and contingent upon Developer's delivery of the First Extension Deposit, the Negotiation Period shall automatically be extended for one (1) additional two hundred seventy (270) consecutive calendar day period following the MOU Approval Date. No further act or instrument shall be required to evidence such extension. (c) Upon the written request of either Party delivered no less than thirty (30) and no more than forty-five (45) days prior to the expiration of the extension of the Negotiation Period described in Section 3(b), and contingent upon Developer's delivery of the Second Extension Deposit, the Negotiation Period may be extended upon the mutual written agreement of both the Agency's Executive Director and the Developer for one (1) additional one hundred eighty (180) day consecutive calendar day period following the expiration of the term described in 3(a). The Agency and the Developer each agree not to unreasonably withhold or condition their approval of such extension request provided that reasonable progress is being made in connection with the negotiation of a DDA. (d) This Agreement shall automatically expire and be of no further force or effect at the end of the Negotiation Period described in Section 3(a), unless, prior to that time, the Agency's Executive Director has approved the form of the MOU submitted by the Developer pursuant to Section 4(f), in which case the Negotiation Period will be extended until the MOU Approval Date (the occurrence of which shall cause the Negotiation Period to be extended pursuant and subject to Section 3(b)). If the MOU Approval Date has not occurred by the date which is one hundred twenty (120) days after the Effective Date, or if the Agency's governing board disapproves the MOU, then this Agreement may be terminated by either Party without cost, expense or liability to the other Party or any other person and the Initial Deposit shall be returned to the Developer. (e) This Agreement shall automatically expire and be of no further force or effect at the end of any extended Negotiation Period described in Section 3(b), unless, prior to that time, either (1) both the Agency and the Developer approve and execute a separate DDA acceptable to both the Agency and the Developer, in their respective sole and absolute discretion, in which case this Agreement will terminate on the effective date of such DDA, or (2) the Negotiation Period is extended pursuant and subject to Section 3(c) (f) This Agreement shall automatically expire and be of no further force or effect at the end of any extended Negotiation Period described in Section 3(c), unless, prior to that time, both the Agency and the Developer approve and execute a separate DDA acceptable to both the Agency and the Developer, in their respective sole and absolute discretion, in which case this Agreement will terminate on the effective date of such DDA. 4. Preparation and Presentation of Documents. 4.1 Ninety (90) Days From Effective Date. The Developer shall prepare and present to Agency staff and, subsequently, to the Agency governing body, for review, all of the following within ninety (90) days from the Effective Date: (a) A proposed complete conceptual development plan for the Project in the Downtown North Area which anticipates but is not dependent upon the construction and completion of the Gold Line extension; RVPUBI KVARNER1711886.4 • 0 (b) A proposed financing plan and pro forma identifying costs and financing sources for the development of the Project in the Downtown North Area, including a proposed income generation and capital financing program for the public library, public parking facilities, and public plazas which are proposed to be part of the Project in the Downtown North Area; and (c) A proposed retail concept/vision for the Project in the Downtown North Area; (d) A proposedentitlement/CEQA strategy describing the entitlements, CEQA requisites and any proposed zoning change or changes to the City's General Plan, if any, necessary to accommodate the Project in the Downtown North Area; (e) A proposed phased development schedule, including milestones and triggers for the Developer to acquire real property for the development of the Project in the Downtown North Area; and (f) A proposed Memorandum of Understanding ("MOU") setting forth with reasonable specificity the proposed business and financial terms which will guide the Parties' negotiation and preparation of a DDA. Among such other matters as the Parties may agree upon, the MOU shall contain the proposed terms of any requested Agency financial assistance, including any direct cash contributions, loans, subsidies, land conveyances, deferred/reduced fees, and the other proposed terms and conditions of the Developer's and Agency's rights and obligations with respect to the Project. The MOU shall be submitted to the Agency Executive Director for review and approval, which will not be unreasonably withheld. Agency staff shall present the proposed MOU to the Agency's governing board for review and approval, in the governing board's sole and absolute discretion, within twenty (20) days following its approval by the Executive Director. As used herein, the term "MOU Approval Date" means the date on which the Agency's governing board approves the MOU. The Agency governing board's disapproval of the MOU for any reason or for no reason at all shall not be an Agency event of default. 4.2 One Hundred Eighty (180) Days From MOU Approval Date. In the event that the term of this Agreement is extended as described in Section 3(b), the Developer shall prepare and present to Agency staff and, subsequently, to the Agency governing body, for review, all of the following within one hundred eighty (180) days from the MOU Approval Date: (a) Any updates and or revisions to the items required in Section 4.1; (b) A proposed financing plan and pro forma identifying costs and financing sources for the construction, maintenance and operation of all proposed public infrastructure improvements and additional or increased levels of public services necessary to support the Project in the Downtown North Area; (c) Letter of intent to purchase any and all City or Agency owned real property that may, in the future, be conveyed to the Developer as part of the development of the Project in the Downtown North Area; (d) A summary of community input and comments regarding the redevelopment of the Downtown North Area obtained through a series of community workshops organized and carried out by the Developer; (e) A proposed marketing plan and public relations program for the Project in the Downtown North Area; R VPUBIKVARNERV/7886.4 0 0 (f) A proposed complete schematic design plan for the public library which describes and depicts: (1) the location and placement of the public library and (2) the architecture and elevations of the public library; (g) An updated proposed phased development schedule, including milestones and triggers for the development of the public library; and. (h) An updated proposed financing plan and pro forma identifying costs and financing sources for the development of the Project in the Downtown North Area, including a proposed income generation and capital financing program for the public library, public parking facilities, and public plazas which are proposed to be part of the Project in the Downtown North Area. 4.3 Two Hundred Seventy (270) Days From MOU Approval Date. In the event that the term of this Agreement is extended as described in Section 3(c), the Developer shall prepare and present to Agency staff and, subsequently, to the Agency governing body, for review, all of the following within two hundred seventy (270) days from the MOU Approval Date: (a) Any updates and or revisions to the items required in Section 4.1 and 4.2; (b) A proposed complete schematic design plan for the initial phase of the redevelopment of the Project in the Downtown North Area which describes and depicts: (1) the location and placement of proposed residential and mixed-use product and (2) the architecture and elevations of. the proposed residential and mixed-use product; (c) A proposed complete schematic design plan for the public parking facilities and public plazas which describes and depicts: (1) the location and placement of the aforementioned public improvements and (2) the architecture and elevations of the aforementioned public improvements; (d) An updated proposed phased development schedule, including milestones and triggers for the development of the public parking facilities and public plazas; (e) A progress report describing the status of the Developer's acquisition of real property in the Downtown North Area for the Project, and (f) A progress report summarizing the Developer's negotiations with the Gold Line Construction Authority regarding public infrastructure improvements for the transit station. 5. Negotiation of DDA. During the Negotiation Period, the Agency and the Developer shall negotiate diligently and in good faith to negotiate a DDA between them. The Agency and the Developer shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations. Both the Agency and the Developer shall exercise reasonable efforts to complete discussions relating to the terms and conditions of a DDA and such other matters, as may be mutually acceptable to both the Agency and the Developer, in their respective sole discretion. The exact terms and conditions of a DDA, if any, shall be determined during the course of these negotiations. Nothing in this Agreement shall be interpreted or construed to be a representation or agreement by either the Agency or the Developer that a mutually acceptable DDA will be produced from negotiations under this Agreement. Nothing in this Agreement shall impose any obligation on either Party to agree to a definitive DDA in the future. Nothing in this Agreement shall be interpreted or construed to be a guaranty, warranty or representation that any proposed DDA that may be negotiated by Agency staff and the Developer will be approved by the Agency governing body. The Developer acknowledges and agrees that the Agency's consideration of any R VP UB I KVARNER 171 ! 886.4 0 0 DDA is subject to the sole and absolute discretion of the Agency governing body and all legally required public hearings, public meetings, notices, factual findings and other determinations required by law. 6. Restrictions Against Change in Ownership, Management and Control of Developer and Assignment of Agreement. (a) The qualifications and identity of the Developer and its principals are of particular concern to the Agency. It is because of these qualifications and identity that the Agency has entered into this Agreement with the Developer. During the Negotiation Period, no voluntary or involuntary successor -in -interest of the Developer shall acquire any rights or powers under this Agreement, except as provided in Section 6(c). (b) The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in Control (as defined in Section 6(d)) of the Developer, as well as any and all changes in the interest or the degree of Control of the Developer by any such person, of which information the Developer or any of its shareholders, partners, members, directors, managers or officers are notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change, whether voluntary or involuntary, in ownership, management or Control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved by the Agency, prior to the time of such change, the Agency may terminate this Agreement, without liability to the Developer or any other person, by sending written notice of termination to the Developer, referencing this Section 6(b). (c) The Developer may assign its rights under this Agreement to an Affiliate (as defined in Section 6(d)), on the condition that such Affiliate expressly assumes all of the obligations of the Developer under this Agreement in a writing reasonably satisfactory to the Agency, and further provided that Developer shall, at all times, Control any such Affiliate and be responsible and obligated directly to the Agency for performance of the Developer's obligations under this Agreement. (d) For the purposes of this Agreement, the term "Affiliate" means any person, directly or indirectly, controlling or controlled by or under common control with the Developer, whether by direct or indirect ownership of equity interests, by contract, or otherwise. for the purposes of this agreement, "Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether by ownership of equity interests, by contract, or otherwise. 7. Developer Obligations to Review Draft Agreements and Attend Meetings. (a) During the Negotiation Period, the Developer shall diligently review and comment on drafts of a DDA prepared by the Agency's legal counsel and, if the terms and conditions of such a DDA are agreed upon between Agency staff and the Developer, submit the DDA fully executed by the authorized representative(s) of the Developer to the Agency Executive Director for submission to the Agency governing body for review and approval or disapproval. Any future DDA shall consist of terms and conditions acceptable to both the Developer and the Agency governing body, in their respective sole and absolute discretion. (b) During the Negotiation Period, the Developer shall also keep Agency staff advised on the progress of the Developer in performing its obligations under this Agreement, on a regular basis or as requested by Agency staff, including, without limitation, having one or more of the Developer's employees or consultants who are knowledgeable regarding this Agreement, the design and 6 RVPUBXVARNER171 /886.4 planning of the Project and the progress of negotiation of a DDA, such that such person(s) can meaningfully respond to Agency and/or Agency staff questions regarding the progress of the design and planning of the Project or the negotiation of a DDA, attend both: (1) monthly meetings with Agency staff, as reasonably scheduled by Agency staff during the Negotiation Period (each, a "Monthly Meeting"), and (2) meetings of the Agency governing body, when reasonably requested to do so by Agency staff. 8. Developer to Pay All Costs and Expenses. All fees or expenses of appraisers, brokers, engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by the Developer for any appraisal, study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design activities, drawings, specifications or other activity or matter relating to the Downtown North Area or the Project or negotiation of a DDA that may be undertaken by the Developer during the Negotiation Period, pursuant to or in reliance upon this Agreement or in the Developer's discretion, regarding any matter relating to a DDA, the Downtown North Area or the Project, shall be the sole responsibility of and undertaken at the sole cost and expense of the Developer and no such activity or matter shall be deemed to be undertaken for the benefit of, at the expense of or in reliance upon the Agency. The Developer shall also pay all fees, charges and costs, make all deposits and provide all bonds or other security associated with the submission to and processing by the City and/or the Agency of any and all applications and other documents and information to be submitted to the City and/or the Agency by the Developer pursuant to this Agreement or otherwise associated with the Project. The Agency shall not be obligated to pay or reimburse any expenses, fees, charges or costs incurred by the Developer in pursuit of any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design activities, drawings, specifications or other activity or matter relating to the Downtown North Area or the Project or negotiation of a DDA that may be undertaken by the Developer during the Negotiation Period, whether or not this Agreement is, eventually, terminated or extended or a DDA is entered into between the Agency and the Developer, in the future. 9. Agency Not To Negotiate With Others. (a) During the Negotiation Period, the Agency and Agency staff shall not negotiate with any other person regarding the redevelopment of the Downtown North Area, except owners of or business tenants occupying Downtown North Area within the Project Area, as provided for in the Redevelopment Plan. The term "negotiate," as used in this Agreement, means and refers to engaging in any discussions with a person other than the Developer, regardless of how initiated, with respect to that person's redevelopment of the Downtown North Area to the total or partial exclusion of the Developer from redeveloping the Downtown North.Area, without the Developer's written consent, subject to the provisions of Section 9(b) and further provided that the Agency may receive and retain unsolicited offers regarding redevelopment of the Downtown North Area, but shall not negotiate with the. proponent of any such offer during the Negotiation Period; provided, however, that the Agency may discuss the fact that the Agency is a party to this Agreement. (b) Implementation of the Redevelopment Plan shall be and remain in the sole and exclusive purview and discretion of the Agency. Nothing in this Agreement shall limit, prevent, restrict or inhibit the Agency from providing any information in its possession or control that would customarily be furnished to persons requesting information from the Agency concerning the Agency's activities, goals, matters of a similar nature relating to implementation of the Redevelopment Plan or as required by law to be disclosed, upon request or otherwise. (c) The Developer acknowledges and agrees that the Agency has certain obligations pursuant to CRL, the Redevelopment Plan, the Implementation Plan and the OP Rules to solicit and consider proposals from owners of real Downtown North Area located within the Project Area for 7 RVPUBXVARNER1711886.4 0 • redevelopment of their real Downtown North Area and that nothing in this Agreement shall limit the Agency's solicitation or consideration of such proposals, including, without limitation, proposals for redevelopment of all or any portion of the Downtown North Area from an owner or owners or real Downtown North Area comprising the Downtown North Area. 10. Acknowledgments and Reservations. (a) The Agency and the Developer agree that, if this Agreement expires or is terminated for any reason, or a future DDA is not approved and executed by both the Agency and the Developer, for any reason, neither the Agency nor the Developer shall be under any obligation, nor have any liability to each other or any other person regarding the redevelopment of the Project or the Downtown North Area. (b) The Developer acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the Agency, nor an acceptance by the Agency of any offer or proposal from the Developer for the Agency to convey any estate or interest in any real property located in the Downtown North Area to the Developer or for the Agency to provide any financial or other assistance to the Developer for redevelopment of the Project or the Downtown North Area. (c) The Developer acknowledges and agrees that the Developer has not acquired, nor will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal property located in the Downtown North Area from the Agency. (d) Certain development standards and design controls for the Project may be established between the Developer and the Agency, but it is understood and agreed between the Agency and the Developer that the Project and the redevelopment of the Downtown North Area must conform to all Agency, City and other applicable governmental development, land use and architectural regulations and standards. Drawings, plans and specifications for the Project shall be subject to the approval of the Agency and the City, through the standard development application process for redevelopment projects within the Project Area. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project or of the Project itself by either the Agency or the City. (e) The Agency reserves the right to reasonably obtain further information, data and commitments to ascertain the ability and capacity of the Developer to lease, develop and operate the Project in the Downtown North Area. The Developer acknowledges that it may be requested to make certain financial disclosures to the Agency, its staff, legal counsel or other consultants, as part of the financial due diligence investigations of the Agency relating to the potential redevelopment of the Project on the Downtown North Area by the Developer and that any such disclosures may become public records. The Agency shall maintain the confidentiality of financial information of the Developer to the extent allowed by law, as determined by the City Attorney. (f) The Agency shall not be deemed to be a Party to any agreement for the acquisition of, lease of or disposition of real or personal property, the provision of financial assistance to the Developer or redevelopment of the Project in the Downtown North Area or elsewhere, until the terms and conditions of a complete future DDA are considered and approved by both the City Council and the Agency governing body, in their respective sole and absolute discretion, following the conclusion of one or more duly noticed public hearings, as required by law. The Developer expressly acknowledges and agrees that the Agency will not be bound by any statement, promise or representation made by Agency staff or representatives during the course of negotiations of a future DDA and that the Agency shall only be legally bound upon the approval of a complete DDA by both the City Council and the Agency 8 R VP UR I KVARNER I7/ ! 886.4 0 0 governing body, in their respective sole and absolute discretion, following one or more duly noticed public hearings, as required by law. 11. Nondiscrimination. The Developer shall not discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in undertaking its obligations under this Agreement. 12. Limitation on Damages and Remedies. (a) THE DEVELOPER AND THE AGENCY ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS AGREEMENT BY THE AGENCY. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE BREACH OF THIS AGREEMENT BY THE AGENCY, THE DEVELOPER AND THE AGENCY AGREE THAT A REASONABLE ESTIMATE OF THE DEVELOPER'S DAMAGES IN SUCH EVENT IS ONE HUNDRED THOUSAND DOLLARS ($100,000) ("LIQUIDATED DAMAGES AMOUNT"). THEREFORE, UPON THE BREACH OF THIS AGREEMENT BY THE AGENCY, THE AGENCY SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER AND THIS AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY THE AGENCY. V Initials of Authorized Representative of Agency Initialserized Representative of Developer (b) THE AGENCY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE THAT THE AGENCY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF IT WERE TO BE LIABLE TO THE DEVELOPER FOR ANY MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, THE AGENCY AND THE DEVELOPER AGREE THAT THE DEVELOPER'S SOLE AND EXCLUSIVE RIGHT AND REMEDY UPON THE BREACH OF THIS AGREEMENT BY THE AGENCY IS TO TERMINATE THIS AGREEMENT AND RECEIVE THE LIQUIDATED DAMAGES AMOUNT. (c) THE DEVELOPER ACKNOWLEDGES THAT IT IS AWARE OF THE MEANING AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. (d) CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS THE INTENTION OF THE DEVELOPER TO BE BOUND BY THE LIMITATION ON DAMAGES, 0 RVPUBI KVARNERl711886.4 RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 13, AND THE DEVELOPER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST THE AGENCY FOR MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF RELATED TO ANY BREACH OF THIS AGREEMENT, EXCEPT RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO THE DEVELOPER AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE DEVELOPER SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT WITH REGARD TO THE LMTATIONS ON DAMAGES AND REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS SECTION 13. to tia s of Authorized Representative of Agency 13. Default. Initial f uthorized Represeiftative of Developer (a) Failure or delay by either Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement. If the Party who is claimed to be in default by the other Party cures, corrects or remedies the alleged default within fifteen (15) calendar days after receipt of written notice specifying such default, such Party shall not be in default under this Agreement. The notice and cure period provided in the immediately preceding sentence shall not, under any circumstances, extend the Negotiation Period. If there are less than fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section 13(a) shall be automatically reduced to the number of days remaining in the Negotiation Period. (b) The Party claiming that a default has occurred shall give written notice of default to the Party claimed to be in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. However, the injured Party shall have no right to exercise any remedy for a default under this Agreement, without first delivering written notice of the default. (c) Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. (d) If a default of either Party remains uncured for more than fifteen (15) calendar days following receipt of written notice of such default, a "breach" of this Agreement by the defaulting Party shall be deemed to have occurred. In the event of a breach of this Agreement, the sole and exclusive remedy of the Party who is not in default shall be to terminate this Agreement by serving written notice of termination on the Party in breach and, in the.case of a breach by the Agency, the Developer shall also be entitled to receive the Liquidated Damages Amount. 14. Compliance with Law. The Developer acknowledges that any future DDA, if approved by the governing body of the Agency, will require the Developer (among other things) to carry out the development of the Project in conformity with all applicable laws, including all applicable building, planning and zoning laws, environmental laws, safety laws and federal and state labor and wage laws. 15. Press Releases. The Developer agrees to obtain the approval of the Agency Executive Director or his or her designee or successor in function of any press releases Developer may propose 10 R VP UB I K DARNER 1711886.4 0 0 relating to the lease or redevelopment of the Downtown North Area or negotiation of a DDA with the Agency, prior to publication. 16. Notice. All notices required under this Agreement shall be presented in person, by nationally recognized overnight delivery service or by facsimile and confirmed by first class certified or registered United States Mail, with return receipt requested, to the address and/or.fax number for the Party set forth in this Section 17. Notice shall be deemed confirmed by United States Mail effective the third (3rd) business day after deposit with the United States Postal Service. Notice by personal service or nationally recognized overnight delivery service shall be effective upon delivery. Either Party may change its address for receipt of notices by notifying the other Party in writing. Delivery of notices to courtesy copy recipients shall not be required for valid notice to a Party. TO DEVELOPER: Watt Genton Associates 2716 Ocean Park Boulevard Suite 320 Santa Monica, California 90405 Attention: Chuck Davis Facsimile: (310) 861-5496 COPY TO: Watt Genton Associates 2716 Ocean Park Boulevard Suite 320 Santa Monica, California 90405 Attention: Jonathan Genton Facsimile: (310) 861-5496 TO AGENCY: Redevelopment Agency of the City of Azusa 213 East Foothill Boulevard Azusa, California 91702 Attention: Executive Director Facsimile: (626) 334-5464 COPY TO: Best Best & Krieger, LLP 3750 University Avenue Riverside, California 92501 Attention: Kevin K. Randolph Facsimile: (951) 686-3083 17, Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section 17, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and other consultants, when such fees are considered necessary by the Developer. 18. Acceptance of Agreement by Developer. The Developer shall aclmowledge its acceptance of this Agreement by delivering to the Agency three (3) original counterpart executed copies of this Agreement signed by the authorized representative(s) of the Developer. 11 R VPUBIKVA RNERI 71 1886.4 19. Counterpart Originals. This Agreement may be executed by the Agency and the Developer in multiple counterpart originals, all of which together shall constitute a single agreement. 20. No Third -Party Beneficiaries. Nothing in this Agreement is intended to benefit any person or entity other than the Agency or the Developer. 21. Governing Law. The Agency and the Developer acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of Azusa, California. The Agency and the Developer agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the procedural and substantive laws of the State of California, without application of such laws' conflicts of laws principles. 22. Waivers. No waiver of any breach of any term or condition contained in this Agreement shall be deemed a waiver of any preceding or succeeding breach of such term or condition, or of any other term or condition contained in this Agreement. No extension of the time for performance of any obligation or act, no waiver of any term or condition of this Agreement, nor any modification of this Agreement shall be enforceable against the Agency or the Developer, unless made in writing and executed by both the Agency and the Developer. 23. Construction. Headings at the beginning of each section and sub -section of this Agreement are solely for the convenience of reference of the Agency and the Developer and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one or the other of the Agency or the Developer, but rather as if both the Agency and the Developer prepared this Agreement. Unless otherwise indicated, all references to sections are to this. Agreement. All exhibits referred to in this Agreement are attached to this Agreement and incorporated into this Agreement by this reference. If the date on which the Agency or the Developer is required to take any action pursuant to the terms of this Agreement is not a business day of the Agency, the action shall be taken on the next succeeding business day of the Agency. 24. Attorneys' Fees. If either Party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, then the prevailing Party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of Agency, salaries and expenses of the lawyers employed by Agency (allocated on an hourly basis) who may provide legal services to Agency in connection with the representation of Agency in any such matter. [Signatures on Following Page 12 R VP UB I KVARNER 1711886.4 IN WITNESS WHEREOF, the Agency and the Developer have executed this Exclusive Negotiation Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. Date: 5 /,Z3/0(v Date: 51Z:3 &(' ATTEST: Agency Secretary APPROVED AS TO FORM: BEST BEST & KRIEGER, LLP By: �G Agency Counsel DEVELOPER: WATT GENTON By: Name: Its: By: AGENCY: THE REDEVELOPMENT AGENCY OF THE CITY OF SA By:f— Nam : F. M. Delach Its: Executive Director 13 R VP UB 1 KVARNEBV 1188 6.4 EXHIBIT "A" TO EXCLUSIVE NEGOTIATION AGREEMENT Downtown North Area Site Man [To Be Attached Behind This Cover Page] EXHIBIT A R VP UB I KVARNER 1711886.4 -