HomeMy WebLinkAboutResolution No. 06-R04RESOLUTION NO. 06-R4
A RESOLUTION OF THE AZUSA REDEVELOPMENT AGENCY BOARD OF DIRECTORS
APPROVING A NEGOTIATION AGREEMENT BETWEEN THE AGENCY AND LOWE
ENTERPRISES REAL ESTATE GROUP -WEST, INC. PERTAINING TO CERTAIN PROPERTY
WHICH IS GENERALLY BORDERED BY FOOTHILL BOULEVARD ON THE NORTH,
AZUSA AVENUE ON THE WEST, 6TH STREET ON THE SOUTH AND 152 EAST
FOOTHILL BOULEVARD TO THE AZUSA/ALAMEDA ALLEY ON THE EAST
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 (Block 36 Project)" ("Agreement"), a copy of which is attached hereto as
Exhibit A, with Lowe Enterprises Real Estate Group -West, Inc. ("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 Foothill Boulevard on the
north, Azusa Avenue on the west, 6' Street on the south, and 152 East Foothill
Boulevard to the Azusa/Alameda alley 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 Agencys
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 sem.) ("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 (Block 36 Project) by and
between the Redevelopment Agency of the City of Azusa and Lowe Enterprises Real
Estate Group -West, Inc. dated as of February 9, 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
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behalf of the Agency such 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 adopted 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 6`h Day of February, 2006.
c
Chairperson
1 HEREBY CERTIFY that the foregoing Resolution No. 06-114, was duly
adopted by the Board of Directors of the City of Azusa Redevelopment Agency, at a
regular meeting hereof, held on the 6th day of February, 2006, by the following vote of
the Board.
AYES: DIRECTORS: HARDISON, HANKS, ROCHA, CHAGNON
NOES: DIRECTORS: NONE
ABSENT: DIRECTORS: CARRILLO
City Clerk
APPROVED AS TO FORM:
By: _— At
City A torney
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E
EXHIBIT A
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Negotiation Agreement (Block 36 Project)
[attached behind this page]
RVPUBUCRANDOLPH1707457.2 EXHIBIT A
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REDEVELOPMENT AGENCY OF THE CITY OFAZUSA
NEGOTIATION AGREEMENT
(Block 36 Project)
THIS NEGOTIATION AGREEMENT ("Agreement') is dated as of Febru�, 2006,
and is entered into by and between the Redevelopment Agency of the City of Azusa, public body
corporate and politic ("Agency"), existing and acting pursuant to the California Community
Redevelopment Law (Health and Safety Code Sections 33000, et seq.) ("CRL"), and Lowe Enterprises
Real Estate Group -West, Inc., a California corporation ("Developer"), to provide a specified period of
time to attempt to negotiate a DDA (as set forth in Recital E, below). 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'):
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"); and
B. The Agency has adopted owner participation rules ("OP Rules") and an implementation
plan ("Implementation Plan") for the Redevelopment Plan; and
C. The Agency and/or third parties own certain real property located within the Project Area
which is bordered by Foothill Boulevard on the north, Azusa Avenue on the west, 6`h Street on the South,
and 152 East Foothill Boulevard and the alley on the east and more specifically described in the legal
description attached to this Agreement as Exhibit A ("Property") and incorporated into this Agreement by
this reference; and
D. The Developer has proposed the redevelopment of the Property and other adjacent
property as a mixed use retail and residential development, as generally depicted in the conceptual site
plan and elevations attached to this Agreement as Exhibit B and incorporated into this Agreement by this
reference ("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 agreement between them
governing the potential sale of the Property from the Agency to the Developer and the potential
redevelopment of the Project on the Property by the Developer, all subject to mutually agreeable terms,
conditions, covenants, restrictions and agreements to be negotiated and documented in the future (this
future agreement is referred to in this Agreement as a "DDA").
NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE AGENCY
RELATING TO THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN AND THE
PROMISES OF THE AGENCY AND THE DEVELOPER SET FORTH IN THIS AGREEMENT, THE
AGENCY AND THE DEVELOPER AGREE, AS FOLLOWS:
I. 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.
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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 Fifty Thousand Dollars ($50,000) in immediately
available funds ("Initial Deposit") to ensure that the Developer will proceed diligently and in good faith to
fulfill its obligations under this Agreement during 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 the
Negotiation Period except as may be expressly permitted by this Agreement, and to defray certain costs of
the Agency in pursuing the contemplated negotiations with the Developer during the Negotiation Period,
pursuant to this Agreement. Agency shall submit to Developer invoices reasonably detailing its costs
incurred in pursuing the contemplated negotiations with the Developer during the Negotiation Period.
The Agency shall be free to withdraw funds from the Initial Deposit, as needed, provided that it has
submitted such invoices to the Developer. Any amount of the Initial Deposit not used by the Agency for
such costs shall be refunded to Developer within thirty (30) days after the earlier of (i) execution and
approval by the Agency of the DDA, or (ii) termination of this Agreement.
(b) Upon each extension of the Negotiation Period occurring pursuant to the
provisions of Section 3(b), if any, the Developer shall deposit an additional Five Thousand Dollars
($5,000) in immediately available funds with the Agency on the first day of any extension of the
Negotiation Period occurring pursuant to the provisions of Section 3(b) (each, an "Extension Deposit").
Each Extension Deposit is intended to ensure that the Developer will proceed diligently and in good faith
to fulfill its obligations under this Agreement during any extension of the Negotiation Period, as part of
the consideration for the Agency's agreement not to negotiate with other persons during any such
extension of the Negotiation Period except as may be expressly permitted by this Agreement, and to
defray certain costs of the Agency in pursuing the contemplated negotiations with the Developer during
any such extension of the Negotiation Period, pursuant to this Agreement. Each Extension Deposit shall
be subject to the same conditions set forth in Section 2(a) regarding the use of the Initial Deposit.
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 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 by the
authorized representative(s) of the Agency. This Agreement shall continue in effect for the period of one
hundred eighty (180) consecutive calendar days immediately following the Effective Date ("Negotiation
Period"), subject to the limitations of Sections 3(b).
(b) The Negotiation Period may be extended upon the mutual written agreement of
the Agency's Executive Director and the Developer for no more then two (2) additional consecutive thirty
(30) calendar day periods. Notwithstanding the immediately preceding sentence or any other part of this
Agreement, in no event shall the Negotiation Period exceed two hundred forty (240) consecutive calendar
days from the Effective Date.
(c) This Agreement shall automatically expire and be of no further force or effect at
the end of the Negotiation Period, unless, prior to that time, both the Agency and the Developer approve
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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. Obligations of Developer. The Developer shall develop 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 on the
Property that describes and depicts: (1) the location and placement of proposed buildings and (2) the
architecture and elevations of the proposed buildings;
(b) Proposed land use categories on a parcel -by -parcel basis, including any proposed
zoning change or changes to the City's General Plan, if any, necessary to accommodate the Project on the
Property;
(c) A list of potential types or categories of users or tenants and preliminary,
currently anticipated, lease rates and potential resale land prices for the Property, once it has been
developed with the Project;
(d) A proposed time schedule and preliminary cost estimates for the development of
the Project on the Property;
(e) A proposed financing plan identifying potential financing sources for all private
and public improvements proposed for the Project, by phase, if appropriate; and
(f) A preliminary financial analysis demonstrating the costs and benefits to the City
and the Agency regarding all construction, maintenance and operations of all proposed public
improvements, the costs of additional or increased levels of public services and any new public revenues
anticipated to be generated by the Project, by phase, if appropriate.
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
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.
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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 Lowe Enterprises Real Estate Group -West, Inc., a California corporation, 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 day-to-day management and policies of an entity, whether by ownership of equity
interests, by contract, as a result of its appointment as manager or managing member, 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
planning of the Project and the progress of negotiation of a DDA, such that such person(s) can
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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 engineers,
architects, financial consultants, legal, planning or other consultants or contractors, retained by the
Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning
and/or design activities, drawings, specifications or other activity or matter relating to the Property 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 Property 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 Property 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 sale or redevelopment of the Property, except owners of or business
tenants occupying property 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
Property to the total or partial exclusion of the Developer from redeveloping the Property, 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 Property, 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 Agency's adopted owner
participation rules to solicit and consider proposals from owners of real property located within the
Project Area for redevelopment of their real property and that nothing in this Agreement shall limit the
Agency's solicitation or consideration of such proposals, including, without limitation, proposals for
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redevelopment of all or any portion of the Property from an owner or owners of real property comprising
the Property.
10. Acknowledgments and Reservations.
(a) The Agency and the Developer agree that, if this Agreement expires or is
terminated for any reason other than the execution by both Parties of a DDA, or if 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 sale or other disposition of the Property or the redevelopment of the Project or the Property.
(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 the Property to the Developer or for
the Agency to provide any financial or other assistance to the Developer for redevelopment of the Project
or the Property.
(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 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 Property 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
Property and/or the Project. 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 sale of the Property and redevelopment of
the Project on the Property 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 development of the Project on the Property 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 governing
body, in their respective sole and absolute discretion, following one or more duly noticed public hearings,
as required by law.
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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 FIFTY THOUSAND DOLLARS ($50,000) (THE "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.
Initials of Authorized
Representative of Agency
j1 -
Initials of Authorized
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,
RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 12, AND THE DEVELOPER
HEREBY RELEASES ANY AND ALL CLAIMS AGAINST THE AGENCY FOR MONETARY
DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF RELATED
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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 LIMITATIONS ON DAMAGES AND
REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS
SECTION 12.
Ini Ws of Authorized
Representative of Agency
13. Default.
/'v
Initials of Authorized
Representative 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 alieged 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
relating to the lease or redevelopment of the Property or negotiation of a DDA with the Agency, prior to
publication.
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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 16. 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: Lowe Enterprises Real Estate Group -West, Inc.
11777 San Vicente Boulevard, Suite 900
Los Angeles, California 90049
Attention: Thomas W. Wulf, Senior Vice President
Facsimile: (310) 820-3302
COPY TO: Manatt, Phelps & Phillips, LLP
11355 W. Olympic Boulevard
Los Angeles, California 90064
Attention: Timi Anyon Hallem
Facsimile: (310) 914-5844
TO AGENCY: The Redevelopment Agency of the
City of Azusa
213 East Foothill Boulevard
Azusa, California 91702
Attention: Executive Director
Facsimile: (626) 812-5238
COPY TO: Best Best & Krieger LLP
3750 University Avenue
Riverside, California 92501
Attention: Kevin K. Randolph, Esq.
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 parry 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 acknowledge 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.
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.
9
R V PU B\K V A RN E R V 06651.3
0 0
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 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]
10
R VPUBUCVARNER1706651.3
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IN WITNESS WHEREOF, the Agency and the Developer have executed this Negotiation
Agreement on the dates indicated next to each of the signatures of their authorized representatives, as
appear below.
Dated: Z CI /O(o
T
Dated: q clI oco
ATTEST:
By: LL/
Agency Secretary
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
By: 4
Agenc Counsel
11
R V P U B\K V A RN E R\7 06651.3
DEVELOPER:
LOWE ENTERPRISES REAL ESTATE GROUP -
WEST, INC., a California corporation
By:
Name: Thomas W. Wulf
Its: Senior Vice President
AGENCY:
THE REDEVELOPMENT AGENCY OF THE
CITY OF AZUSA, a public body corporate and
pol itic
By: A 6, 4V 1✓�
Name((((( Francis Delach
Its: Executive Director
0
EXHIBIT "A"
TO
NEGOTIATION AGREEMENT
Property Legal Description
EXHIBIT A
R V P U B\K V A RN ER\7 06651.3
0
604 N. Azusa/8611-003-118 (Vacant)
AZUSA S 10 FT OF LOT 30 AND ALL OF LOTS 31 AND LOT 32 BLK 36
610 N. Azusa/8611-003-801
*TR=AZUSA*LOTS 28 AND 29 AND N 15 FT OF LOT 30 BLK 36
Verizon Parking Lot/8611-003-800
TR=AZUSA LOT 27 BLK 36
City Public Parking Lot/8611-003-903
AZUSA LOTS 25 AND LOT 26 BLK 36
City Public Parking Lot/8611-003-902
AZUSA LOT 24 BLK 36
8611-003-901
AZUSA LOTS 22 AND LOT 23 BLK 36
8611-003-900
AZUSA LOT 21 BLK 36
8611-003-911/VacantLand
AZUSA LOT 20 BLK 36
626 N. Azusa/8611-003-910
AZUSA LOTS 18 AND 19 BLK 36
630 N. Azusa/8611-003-907
AZUSA LOT 17 BLK 36
632 N. Azusa/8611-003-906
AZUSA LOT 16 BLK 36
634 N. Azusa/8611-003-908
AZUSA S 16.5 FT OF W 60 FT AND E 80 FT OF LOT 15 BLK 3
636 N. Azusa/8611-003-912
AZUSA POR LOTS 12 TO 14 AND W 8.5 FT OF W 60 FT OF LOT 15 BLK 36
638 N. Azusa/8611-003-916
AZUSA N 23.25 FT OF S 37.5 FT OF LOTS 12 THRU 14 BLK 36
640 N. Azusa/8611-003-915
AZUSA N 37.5 FT OF S 75 FT OF LOTS 12,13 AND 14 BLK 36
100 E. Foothill Blvd./8611-003-006 (Pawn Shop)
AZUSA N 75 FT OF LOTS 12,13 AND LOT 14 BLK 36
112 E. Foothill Blvd./8611-003-909
AZUSA LOT 11 BLK 36
116 E. Foothill Blvd./8611-003-914 (Vacant)
AZUSA LOTS 8,9 AND 10 BLK 36
134 E. Foothill Blvd./8611-003-913 (Vacant)
AZUSA LOTS 6 AND 7 BLK 36
152 E. Foothill Blvd./8611-003-041 (Bank)
AZUSA LOTS 1, 2, 3, 4, 5, 46, 47, 48, 49 AND LOT 50 BLK 36
Counly of Los Angeles: Rick Auerbach, Assessor
8611 1 3 1 200-4 V
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EXHIBIT `B"
TO
NEGOTIATION AGREEMENT
Project Description
[To Be Attached Behind This Cover Page]
EXHIBIT B
R V PUB%K VARN ER V 06651.3
® Retail and Residential Mixed -Use
- Retail frontage - Azusa and Foothill- street level
- Residential - 2nd and 3rd floors
® Renew the Main Street concept
- Public spaces, plazas and pedestrians
- Engage the retail and transportation adjacencies
® Respond to the heritage of Azusa
- Quality architectural finishes and details
- Cohesive with existing historic structures
® Address the future of Azusa
- A first link to the new Transit Oriented Development
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frontage
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® Design takes into account "name brand99
retailers' requirements
-.Size requirements of each unit
- Frontage to main thoroughfares
- Accessible parking
® Designed to fit into community and
downtown standards
- Downtown Dain Street concept
- Azusa heritage
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- 15,000 sq. ft.
- Possible soft goods
- Adjacent entrance
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- 129000 SF
- Possible "Sit -Down"
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- Possible bank
- Adjacent parking
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- Gathering place A VF--
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Multifamily -Residential
46 Town homes at 1,300 SF each
22 Flats at 1,300 SF each
Total Residential Units: 68
Total Residential SF: 88,400
Retail
41,900 SF
Parking
Residential: 2.33 / unit = 160 spaces
Retail: 4/1,000 SF = 168 spaces
Total Parking: 328 Fully Contained Spaces
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® All parking for this project is self contained in this facility
- 4 per 1,000 feet of retail
- Residential at 2.33 per unit
® Parking plan aligned with national credit retailers standards
- Adjacent to retailers
- Easy access from Azusa Ave
- Additional access from Alameda
® Linkages to other downtown locations
- Use of sidewalks to draw walking traffic from downtown
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