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HomeMy WebLinkAboutResolution No. OB-11-120 0 RESOLUTION NO. OB -11-12 A RESOLUTION OF THE OVERSIGHT BOARD OF THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA APPROVING A TERMINATION AND MUTUAL RELEASE OF CLAIMS AGREEMENT FOR EXCLUSIVE NEGOTIATION AGREEMENT WITH KAL PACIFIC & ASSOCIATES FOR 229 S. AZUSA AVENUE WHEREAS, pursuant to Health and Safety Code section 34173, the City of Azusa ("Successor Agency") is the successor agency to the dissolved Redevelopment Agency of the City of Azusa ("Agency"); and WHEREAS, the Oversight Board is the Successor Agency's oversight board pursuant to Health and Safety Code section 34179(a); and WHEREAS, the Agency entered into an Exclusive Negotiation Agreement ("ENA") with Kal Pacific & Associates ("Kal Pacific") on May 16, 2011 for that certain real property located at 229 S. Azusa Avenue, in the City of Azusa, California; and WHEREAS, the Agency and Kal Pacific failed to execute a Disposition and Development Agreement prior to June 28, 2011, which is the deadline created by AB 1X 26 after which time the Agency is prohibited from entering into any agreements; and WHEREAS, pursuant to the ENA, Kal Pacific made a $15,000 deposit ("Deposit") which must be refunded if a DDA was not executed during the specified time frame; and WHEREAS, the Successor Agency and Kal Pacific entered into a Termination and Mutual Release of Claims Agreement for Exclusive Negotiation Agreement ("Agreement") in order to terminate the ENA and refund the Deposit to Kal Pacific. NOW, THEREFORE, THE OVERSIGHT BOARD OF THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference. Section 2. CEQA Compliance. The approval of the Agreement does not commit the Oversight Board to any action that may have a significant effect on the environment. As a result, such action does not constitute a project subject to the requirements of the California Environmental Quality Act. The City Clerk of the City of Azusa, acting as Secretary to the Oversight Board, is authorized and directed to file a Notice of Exemption with the appropriate official of the County of Los Angeles, California, within five (5) days following the date of adoption of this Resolution. Section 3. Approval of the Agreement. The Oversight Board hereby approves and adopts the Agreement in substantially the form attached to this Resolution as Exhibit A. 4563 5.09000\7605374.1 0 0 Section 4. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The Oversight Board declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution. Section 5. Certification. The Secretary to the Oversight Board shall certify to the adoption of this Resolution. Section 6. Effective Date. Pursuant to Health and Safety Code Section 34179(h), all actions taken by the Oversight Board may be reviewed by the State of California Department of Finance and, therefore, this Resolution shall not be effective for five (5) business days, pending a request for review by the State of California Department of Finance. APPROVED AND ADOPTED THIS 4th day of October, 2012. Chair Oversight Board Successor Agency to the Former Redevelopment Agency of the City of Azusa ATTEST: L"" 4� ssistant City Clerk Oversight Board Successor Agency to the Former Redevelopment Agency of the City of Azusa I, HEREBY CERTIFY that the foregoing Resolution No. OB -11-12 was duly adopted by the Board Members of the Oversight Board of the City of Azusa at a special meeting thereof on the 4th day of October 2012, by the following vote of Board Members: AYES: BOARD MEMBERS: GONZALES, LOWE, PARAGAS, WOODS NOES: BOARD MEMBERS: NONE ABSENT: BOARD MEMBERS: FRICK, ENGLUND, ROMERO. Assistant City Clerk 01 Oversight Board Successor Agency to the Former Redevelopment Agency of the City of Azusa 45635.0900017605374.1 0 0 EXHIBIT A TERMINATION AND MUTUAL RELEASE OF CLAIMS AGREEMENT FOR EXCLUSIVE NEGOTIATION AGREEMENT WITH KAL PACIFIC & ASSOCIATES FOR 229 S. AZUSA AVENUE [Attached behind this page] 45635.09000\7605374.1 0 0 EXCLUSIVE NEGOTIATION TERMINATION AND MUTUAL RELEASE OF CLAIMS AGREEMENT (229 S. Azusa Avenue) THIS EXCLUSIVE NEGOTIATION TERMINATION AGREEMENT (229 S. Azusa Avenue) ("Agreement"), is entered into as of this _ day of 2012 ("Effective Date"), by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body corporate and politic ("Agency"), on behalf of the Redevelopment Agency of the City of Azusa ("Redevelopment Agency") as its successor agency, and KAL PACIFIC & ASSOCIATES, INC., a California corporation ("Developer"). Agency and Developer are hereafter sometimes individually referred to as "Party" and collectively as "Parties." RECITALS A. Developer and Redevelopment Agency entered into that certain Exclusive Negotiation Agreement (229 S. Azusa Avenue) ("ENA"), dated 511612011. B. Pursuant to Health and Safety Code section 34172, as modified by the opinion of the Supreme Court of the State of California in California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. S194861, the Redevelopment Agency was dissolved as of February 1, 2022. C. Because the Redevelopment Agency is dissolved, the ENA is no longer effective. D. Pursuant to Health and Safety Code section 34173, the City of Azusa elected to become the successor agency to the Redevelopment Agency, and is thereby vested with the authority to enter into this Agreement. E. The Parties desire to enter into this Agreement in order to set forth their final resolution associated with the termination of the ENA and agree to mutually" release each other from any and all claims and liability arising from, related to or associated with the ENA. AGREEMENT NOW, THEREFORE, based on the foregoing Recitals, the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties hereby agree as follows: 1. Incorporation of Recitals. Agency and Developer acknowledge that the recitals are true and correct and incorporate by reference the recitals into this Agreement. 2. Termination of ENA. Pursuant to Section 26 of the ENA, the Parties agreed that if there was a change in the law, that in the Agency's reasonable discretion, prevented the Agency or its successor from performing Redevelopment Agency's obligations thereunder, the Redevelopment Agency may terminate the ENA. The Parties have determined the obligations under the ENA to in good faith negotiate an agreement for the development of the subject property cannot be 45635.0900017385589.1 0 0 complied with and therefore the termination of the ENA is appropriate. Termination pursuant to Section 26 of the ENA is not a default be either party but does entitle the Developer to a return of the Deposit under the ENA. Agency and Developer acknowledge that this Agreement signifies a termination of the ENA pursuant to Section 26 of the ENA because Redevelopment Agency and Agency, as the successor to the Redevelopment Agency, are prohibited by the passage of law from performing Redevelopment Agency's obligations under the ENA. 3. Return of Deposit Pursuant to Section 2 of the ENA, Developer paid Agency a deposit in the amount of Fifteen Thousand Dollars ($15,000.00) to ensure that Developer will proceed diligently and in good faith under the ENA ("Deposif j. Because the ENA is terminated, Agency shall return to Developer the full amount of the Deposit in immediately available funds within ten (3) days of the Effective Date of this Agreement. 4. Release of C 4.1 Release by Developer. Developer, on behalf of itself, its manager and their respective officers, agents, employees, affiliates, attorneys, successors in interest and assigns (the "Developer Parties"), hereby fully releases Agency, Redevelopment Agency, and City, and their elected officials, officers, agents, employees, and attorneys ("Agency Parties") from any and all claims or causes of action by reason of any damage or alleged damage that has, or allegedly has, been sustained or may be sustained as a result of any dispute related to, arising from or in connection with the ENA. Developer acknowledges and agrees that this release applies to all claims that Developer may have against the Agency Parties for injuries, damages or losses to Developer's person and property, real or personal, whether those injuries damages or losses are known or unknown, foreseen or unforeseen, patent or latent. Developer hereby expressly waives any and all rights which it may have under 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 must have materially affected his or her her settlement with the debtor." Initials ofjD/eveloper's Authorized Representative 45635.OWW,1385589.1 0 0 4.2 Release by Agency. Agency, on behalf of itself and the Agency Parties hereby fully releases the Developer Parties from any and all claims or causes of action by reason of any damage or alleged damage that has, or allegedly has, been sustained or may be sustained as a result of any dispute related to, arising from or in connection with the ENA. Agency acknowledges and agrees that this release applies to all claims that Agency may have or Redevelopment Agency may have had against the Developer Parties for injuries, damages or losses to Agency's, Redevelopment Agency's, or City's person and property, real or personal, whether those injuries damages or losses are known or unknown, foreseen or unforeseen, patent or latent. Agency hereby expressly waives any and all rights which it may have under 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 must have materially affected his or her settlement with the debtor." Initials of Agency's Authorized Representative 5. General Provisions. 5.1 Governing LawNenue. This Agreement shall be governed by the laws of the State of California. The Superior Courts of the State of California in the County of Los Angeles, California, shall have exclusive jurisdiction over any litigation between Agency and Developer arising out of this Agreement. 5.2 Notices. All notices required to be delivered under this Agreement or applicable law shall be delivered by personal delivery, express mail or by United States mail, certified, postage prepaid. Notices personally delivered or delivered by express mail shall be deemed received upon receipt. Notices delivered by certified mail shall be deemed received the earlier of three (3) days following deposit of such notice with the United States Postal Service or actual receipt Notices shall be sent as follows: To Agency: Successor Agency to the Redevelopment Agency of the City of Azusa 213 East Foothill Boulevard Azusa, CA 91702 Attn: City Manager With Copy To: Best, Best & Krieger 5 Park Plaza, Suite 1500 Irvine, CA 92614 Attn: Elizabeth Hull, Esq. Facsimile: (949) 260-0972 45635.0900017385589.1 To Developer: Kai Pacific & Associates, Inc. 41951 Remington Ave., Suite 110 Temecula, CA 92590 Attn: Donald J. Veasey Facsimile: 951-587-9451 With Copy to: Lieberg Oberhansley Strohmeyer & Gam 41911 51° Street, Suite A Temecula, CA 92592 Attn: Nathan C. Garn Facsimile: 951-699-6616 5.3 Attorneys' Fees and Costs. Should Agency or Developer bring any action or proceeding against the other Party, and if such action or proceeding is related to the interpretation or enforcement of this Agreement or in any way relates to or arises from the existence of this Agreement, then the prevailing Party in that action or proceeding shall be entitled to recover from the non -prevailing Party, in addition to all other relief to which the prevailing Party may he entitled, the prevailing Party's reasonable litigation costs and attorneys' fees, in an amount to be determined by the court. The "prevailing Party" shall be as determined by the court in accordance with the provisions of California Code of Civil Procedure Section 1032. Recoverable litigation costs and attorneys' fees include those incurred by the prevailing Party in the enforcement of any judgment or other judicial order, and during the defense of any appeal taken from such underlying judgment or other judicial order. 5.4 Entire Agreement. This Agreement shall constitute the entire agreement of the Parties and supersedes all previous agreements, oral or written, on the subject matter of this Agreement. 5.5 Modification. No modification of this Agreement shall be valid unless in writing signed by all Parties. The Parties shall not be bound by any representation, warranty, promise, statement or information, unless it is specifically set for in this Agreement. 5.6 Further Acts. The Parties agree to execute such additional documents and to take such further actions as are reasonably necessary to accomplish the terms, objectives and intent of this Agreement. 5.7 Severability. If any provision or clause of this Agreement or any application of it to any person, firm, organization, partnership or corporation is held invalid, such invalidity shall not affect any other provision of this Agreement, and the Agreement shall be construed as if such provisions or clauses did not exist. 5.8 Good Faith Negotiations. The Parties acknowledge that this Agreement is the product of mutual, good faith arms -length negotiations in that Agency and Developer each have been, or have had the opportunity to have been, represented by legal counsel of their own choosing in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides that ambiguities in a document are to be construed against the drafter of that document shall have no application to either the interpretation or the enforcement of this 45635.0900017365589.1 0 0 Agreement. In any action or proceeding brought to interpret or enforce this Agreement, the trier of fact may refer to such extrinsic evidence which is not in direct conflict with any express term or provision hereof to ascertain and give effect to the intent of the parties hereto. 5.9 No Third Party Beneficiary. This Agreement and the performance of Agency's and Developer's obligations hereunder are for the sole and exclusive benefit of Agency and Developer. With the exception of Agency and Developer, which shall have full rights to enforce the provisions of this Agreement, no person or entity who or which is not a signatory to this Agreement shall be deemed to be benefitted or intended to be benefitted by any provision hereof, and no such person or entity shall acquire any rights or causes of action against either Agency or Developer hereunder as a result of Agency's or Developer's performance or nonperformance of their respective obligations under this Agreement. . 5.10 No Prior Assignment. Developer and Agency each hereby covenants and warrants that neither has either voluntarily or involuntarily assigned, transferred, or conveyed any right, action, or claim related to the ENA or this Agreement. 5.11 No Waiver. Failure to insist on any one occasion upon strict compliance with any of the terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 5.12 Counterparts. This Agreement may be executed in any number of identical counterparts, each of which when executed and delivered shall be an original, but all such counterparts shall constitute but one and the same instrument. Any signature page of this instrument may be detached from any counterpart without impairing the legal effect of any signatures thereof, and may be attached to another counterpart, identical in form thereto, but having attached to it one or more additional signature pages. Delivery by any Party or its respective representatives of telecopied (counterpart) signature pages shall be as binding an execution and delivery of this instrument by such Party as if the other Party had received the actual physical copy of the entire instrument with an ink signature from such Party. So long as this Agreement is fully executed, at least in counterparts, any counterpart set of the Agreement executed by the Party against whom enforcement of this Agreement is sought shall be admissible into evidence as an original hereof to prove the contents hereof. ISignatures on following pages] 45635.0900017385589.1 0 0 SIGNATURE PAGE TO EXCLUSIVE NEGOTIATION TERMINATION AGREEMENT (229 S. Azusa Avenue) IN WITNESS WHEREOF, Agency and Developer have signed this Exclusive Negotiation Termination Agreement (229 S. Azusa Avenue) by and through the signatures of their authorized representatives set forth below: AGENCY: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA 2 City Manager, acting on behalf of the Successor Agency ATTEST: City Clerk, acting on behalf of the Successor Agency APPROVED AS TO FORM: Successor Agency Counsel 15635.0903017385589.1 DEVELOPER: KAL PACIFIC & ASSOCIATES, INC., a Cali rporation By — Name:` ) a of Its: Imn C� By: Name: Its: