11-16-2010 - Extension to an Exclusive Negotiating Agreement wi - Item 5 attachment (2).pdfATTACHMENT NO.1
MICHAEL GRANSKOG
28367 -SAND CANYON ROAD
SANTA CLARITA, CA 91350
October 4, 2010
West Covina Community Development Commission
Attn: Benjamin Kim, Redevelopment Manager
1444 West Garvey Ave
West Covina, CA 91793
Re: Exclusive Negotiating Agreement
AAA Pad/Azusa Ave
2.1 acre (27,400 s.f. net)
Dear Mr. Kim:
Please process an extension for the existing Exclusive Negotiating Agreement until May 3
2011.
As we have discussed, the _general conditio.n of the economy has caused us delays in our
development plans. The financial community is hesitant to enter into new financing
agreements and the prospective tenants are faced with their own budgetary limitations.
We will update you as appropriate in the event there are significant changes.
• It is our intention to continue to work with the Plan Department to obtain a Zone Change and
General Plan Amendment.
In the event you require additional information, please feel free to contact Larry S. Turner,
Project Manager, at 805-493-0746.
7ar
Micha dranskog
Cc: Jeff Anderson, City of West Covina Plan Department
Ron Garcia, City of West Covina Plan Department
Ahmad Ghaderi, A & S Engineering
ATTACHMENT NO.2
EXCLUSIVE NEGOTIATING AGREEMENT
(AAA Pad)
THIS EXCLUSIVE NEGOTIATING AGREEMENT (the "Negotiating Agreement") is
entered . into on b€C,," , 2009, between the' COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF WEST COVINA, a public body, corporate and politic (the
"CDC"), and ASHDON DEVELOPMENT WEST COVINA, INC., (the "Developer") (the
Developer, and the CDC are collectively referred to herein as the "Parties"), on the terms and
provisions set forth below.
ECITAL
The following recitals are a substantive part Of this Negotiating Agreement.
A.. The City Counoil-Of the City of .West Coviha:(the "City Council") .pproved and
adopted the Redevelopment Plan (the "Plan") for the West Covina Redevelopment Project (the
"Project Area").by the merger of the Central Business district and Eastland Redevelopment Plans on
December.21, .1993 by Ordinance No, 1928, and the City Council . did duly pass and approve
Ordinance No. 1951 on Deceinber 20, 1994, and did thereby amend the Plan.
• • . .
B. • . In furtherance of the. objectives of.the Community Redevelopment Law of the State
of California, Health and Safety Cod b Section 33000, et seq..(the "CRL"), tl -fe'CDC desires to review
the feasibility and consider the redevelopMent of certain parcels of land, of approximately .2.1 acres,
within the Project Area, loadted at northeast corner of Azusa Avenue and Giambi Lane, City of West
Covina, as shown on the site map attached hereto as ahibit "A" (the "Site"):
C. The Parties agree and acknowledge that the purpose of this Negotiating Agreement is .
to establish a period during which the Developer shall have the exclusive right to negotiate with the
CDC the terms of an Disposition and Development Agreement or other agreement (the "DDA") for
the development of a service station with a full-service car wash, a convenience store and ancillary
• food or beverage sales and/or other related uses on the Site (the "Proposed Development"). The City
is interested in reviewing the Proposed Development's feasibility, and, if mutually agreed, to
facilitate and implement the Proposed Development.
D. The Parties intend that during and for the period of negotiations set forth herein (the
"Negotiating Period") each will perform certain actions and fulfill certain obligations and
responsibilities under this Negotiating Agreement.
THE CDC AND THE DEVELOPER HEREBY AGREE AS FOLLOWS:
[100] Agreement to Negotiate
A. [101] Agreement to Engage in Good Faith Negotiations
The CDC, by and through its staff and consultants, and the Developer, acknowledging that
time is of the essence, agree for the Negotiation Period set forth below to negotiate diligently and in
good faith to prepare a Disposition and Development Agreement (the "DDA") and ancillary
agreements to be considered for execution between the CDC and the Developer, in the manner set
forth herein with respect to the Proposed Development of the Site. The CDC agrees, for the period
set forth below, not to negotiate with any other person or entity regarding development of the Site or
any portion thereof.
B. [102] Duration of this Negotiating Agreement
The duration of this Negotiating Agreement (the "Negotiation Period") shall be one hundred
eighty (180) days from the execution date of this Agreement by -the CDC. If upon expiration of the
Negotiation Period, the Developer has not signed and submitted a DDA to the CDC or engaged in
substantial progress towards finalizing terms of a DDA, as determined by the Executive Director of
the CDC, then this Negotiating Agreement shall automatically terminate unless this Negotiating
Agreement has been mutually extended by the CDC and the Developer. However, if in the Opinion
of the Executive Director the parties have made substantial-progress in finalizing terms of a DDA
and all other condition of Developer's Submissions, as set forth in paragraph 202, below, have been
filed„.the Executive Director in his sole and absolute discretion may extend the Negotiating Period
for lin additional ninety (90) days in ordei. to process the DD'A sand other applicationirequired by this
Negotiating Agreement. •
C: [103] Termination due to Failure to Negotiate in Good Faith
. In • the event the DeVeloper has not Continued to .negotiate'diligently: and in good faith, the •
CDC shall 'giye written notice therdof to the Developer who shall then have ten (10) working 'days to
commence negotiating - in good faith. Following The receipt of such notice and the failure of the
Developer to thereafter commence negotiating in good faith within such ten (10)- working daYs, this
Negotiating .Agreement may be terminated by the CDC. In the event of such termination by the
CDC, neither party shall have any farther rights against norliability to the other under this
Negotiating Agreement. •
In • the event the CDC has not continued to negotiate diligently and in good faith, the.
Developer shall .give.written notice thereof to the .CDC, which shall then have ten (10) working days .
to commence negotiating in good faith. Following the receipt .of such notice and the failure of the _ _
Agency to thereafter commence negotiating in good faith - within such ten (-10) working -days, this-
Negotiating Agreement may be terminated by the Developer. In the event of such termination by the
Developer, neither party shall have any further rights against or liability to the other under this
Negotiating Agreement.
D. [104] Deposit
Prior to execution of this Negotiating Agreement, Developer shall deposit with CDC the sum
of Five Thousand Dollars ($5,000.00) as a good faith deposit (the "Deposit"). The Deposit shall be
promptly returned to the depositing party should this Negotiating Agreement terminate within the
first ninety (90) days of the 180-day ENA period. After the first 90-day period, the Deposit will
become non-refundable and only be refunded if and should the Developer be denied City's land use
designation (i.e., Zoning and General Plan designation) applications for the project during the
Negotiation Period.
II. [200] Development Concept
A. [201] Scope of Development
The negotiation hereunder shall be based on a development concept, which shall include the
development on the Site of a service station with a full-service car wash, a convenience store and
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ancillary food or beverage sales and/or other related uses as approved by the CDC to be included
the DDA.
B. [202] Developer Submissions
Within the times specified below the Developer must complete certain submissions to the
CDC. Failure of Developer to timely complete the specified submissions may result in termination
of this Negotiating Agreement by CDC.
I. Developer shall submit a concept development site plan and elevations within 60
days from the effective date of this Negotiating Agreement.
2. Developer shall submit a project proforma within 90 days from the effective date of
this Negotiating Agreement, which includes the following:
• • • ,
o •Development Costs', includhig•construction and non-construction costs, •
o Project income and return, and
o Consideration to be paid to the CDC. •
.• 3. Developer shall submit update on progress of obtaining- necessary land entitlements
and:related approvals, including biit not limited to a general plan amendment, zone change, precise
plan, conditional use permit, and CEQA review, Within 120 days, from the 'effective date of this
Negotiating Agreement. •
•
4. Other relevant business development information requested by the CDC in order to
allow' the CDC to- reasOnably evaluate the terms of the DDA or related 'negotiations. • •
C. [203] Developer's Findings, Determinations, Studies and Reports
. . Upon reasonable notice, as froth time-to-time requested by the CDC, the Developer agrees to - •
- - - - --- -make oral,a—n-crwritte-rFp-r-o-gressr-ep-orts7a-dvisin-g-the7-eDC-onraitrron=corrfi-dentla17ormowpropri-etaiy.._. _ _ .
matters and all studies being made by the Developer. In the event the CDC and the Developer do not
enter into a DDA, and the Deposit is returned to the depositing pa- to Section 104 of this
ENA, the Developer shall- submit to the CDC copies of all studies and reports prepared for the
• proposed development of the Site by or for the Developer to the extent the Developer is legally able
to do so, and the CDC shall have the right to the use and benefit of all such non-confidential or non-
proprietary studies and reports.
D. [300] Acquisition of the Site and Costs of Appraisals and Related
Consulting Work
The consideration to be paid by the Developer to the CDC will be established by the CDC
after negotiation with the Developer. Such consideration will be based upon such factors as market
conditions, density of development, costs of development, risks of the CDC, risks of the Developer,
estimated or actual Developer profit, public purpose and/or reuse value for the uses permitted to be
developed and financial requirements of the CDC, and will be subject to approval by the CDC and
the City Council after a public hearing or other public meeting as required by law. Any costs, fees
and charges associated with the appraisals for the value of the land and/or costs associated for
retaining and utilizing consultants necessary to evaluate the feasibility of the proposed projects or
work related thereto shall be paid solely by the Developer. The selection of the appraiser(s) and
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other consultant(s) and type of appraisal report(s) or other consultant report(s) necessary for the
project is at the sole discretion of the CDC.
III. [400] The Developer
A. [4011 Nature of the Developer and Tenant
The Developer is:
Ashdon Development West Covina, Inc.
B. [402] Office of the Developer
The principal office of the Developer is:
AshdonDeVelopment West Covina, Inc.
28367 Sand Canyon Road •
Santa Clarita, California 91350
Copy to:
John H. Caballero, Esq.
Schiada & Caballerso .
12070 telegraph Rd, Suite 106
Santa Fe, CA 90670
• C. [403] Full Disclosure .
•
Pursuant to Section 202, the Developer will make full disclosure to the CDC of its principals, •
• officers, major stockholders, major partners, 'joint venturers, and key managerial employees: Any
sigmhcant-change-in-the--princip-als,--assm-i-a:tesTp-artn-ersTjoint-_venturersTnegotiatorsTclevelopment
manager, consultants, professional and directly-involved managerial employees of the Developer is
subject to-the approval of the CDC-. Notwithstanding the foregoing, the Developer reserves the right,
subject to written approval of the CDC, to join and associate with other entities in joint ventures, —
partnerships or otherwise for the purpose of developing the Site, provided that the Developer retains
responsibility for day to day management of such entities and remains fully responsible to the CDC
hereunder.
IV. [500] Agency's Responsibilities
D. [501] Redevelopment Plan
This Negotiating Agreement and the DDA are subject to the . provisions of the
Redevelopment Plan as it currently exists. The CDC believes that the Redevelopment Plan would
allow the type of development proposed by Developer, but the CDC makes no representation or
warranty that the actual Proposed Development will be permitted by the Redevelopment Plan.
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E. [502] CDC Assistance and Cooperation
The CDC shall cooperate fully in providing the Developer with appropriate information and
assistance for development of the Site, including all existing documents, surveys, maps and reports
concerning the Site and the feasibility of the Proposed Development.
[503] Environmental Documents
The City of West Covina shall prepare any and all environmental documents required for the
Proposed Development under the California Environmental Quality Act. The Developer shall
cooperate with the- CDC and City . in preparing environmental documents by supplying necessary
technical data and other related information and/or development plans concerning the proposed
development on the Site. Any costs, fees and charges associated with the- requirements of the
California Environmental Quality At shall be paid by. the Developer, unless otherwise .agreed by the
CDC. .• •
G. [504] CDC and City Council Public Hearing
• A DDA resulting from the negotiations hereunder shall become effective only after and if the
-DDA has been considered and approved by the CDC -and City Council at a public hearing, if
required, and called for such purpOse.. . • . • • • .
V. [600] No Predetermination of Agency Discretion
The Parties agree and acknowledge that nothing in this-Negotiating Agreement in any respect
does or shall be construed to affect or prejudge the exercise Of the CDCs discretion concerning
consideration of any submittal by the Developer or any other party. Further, nothing in this
Negotiating Agreement in any respect does or shall be construed to affect or prejudge the CDC's
discretion to consider, negotiate, .or undertake the Proposed Development or any required approvals
VI. [700] Hazardous Materials and Development Assessment
The Developer at it's sole cost and expense shall conduct or cause to be conducted
environmental assessments, audits and/or testing and any other activities, audits, tests and
assessments to determine the feasibility of the Proposed Development ("Tests") of the Site, as and if
permitted by the owner of such property. The Developer shall have the right to terminate this
Negotiating Agreement if the Developer is not reasonably satisfied with the findings and the
recommendations made in the Tests, if either Party is unable to gain access to the property to conduct
Tests or if the Development is determined not to be feasible in the sole discretion of the Developer.
However, both Parties acknowledge and agree that specific representations or warranties,
agreements, obligations, liabilities or responsibilities pertaining to the condition or title of the Site
and/or the Proposed' Development may be the subject of negotiations between the Parties in
connection with the negotiations of any DDA or other agreement entered into by the Parties.
VII. [800] Costs and Expenses
Except as provided herein, each party shall be responsible for its own costs and expenses in
connection with any activities and negotiations undertaken in connection with the performance of its
obligations under this Negotiating Agreement.
aaa133(4)cja
VIII. [9001 Non-Discrimination
Developer shall not discriminate against nor segregate any person, or group of persons on
account of sex, race, color, marital status, religion, creed, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer
establish or permit any such practice or practices of discrimination or segregation in the selection,
location, number, use, or occupancy of tenants, lessees,. subtenants, sublessees or vendee S of the land.
IX. 110001 Real Estate Commission
Each party represents that it has not engaged any broker, agent or finder in connection With
this transaction and each party agrees to hold the other'party harmless frcim any claim by any broker,
agent or finder retained by or claimed through Such party.
• , .
X. [1100] .Limitations of thiS Negotiating Agreement ,
By its execution of this Negotiating Agreement, the CDC is not committing itself to or
agreeing to undertake: (1) disposition of land to the Developer; (2) approval of the project concept,
tenants or design; or (3) any other acts or activities requiring the subsequent independent exercise of
discretion by the CDC, the City or any agency.or department thereof. •
• This Negotiating Agreement does not constitute a disposition of property by the CDC or
City. Execution of this Negotiating Agreement-.by the CDC is merely an agreement-to enter into a
period of exclusive negotiations according to the terms hereof reserving final discretion and aPproval
by the CDC and City as to any Disposition and Development. Agreement and all proceedings and
decisions in cOnnections therewith.
XI. [12001 Governing Law
This Negotiating Agreement shall be constructed in accordance with the laws of the State of
California.
•
XII. [1300] Attorney's Fees
In the event any action is taken by either party to this Negotiating Agreement to enforce this
Negotiating Agreement, the prevailing party shall be entitled to recover from the other party its
actual attorneys' fees and costs.
XIII. [1400] Implementation of Agreement
The CDC shall maintain authority to implement this Negotiating Agreement through the
CDC Executive Director (or his or her duly authorized representative). The CDC Executive Director
shall have the authority to issue interpretations, waive provisions, and/or enter into certain
amendments of this Negotiating Agreement on behalf of the CDC so long as such actions do not
materially or substantially change the uses or concept of the Proposed Development, or add to the
costs incurred or to be incurred by the CDC as specified herein.
XIV. [1500] Time of Essence
Time is of the essence of every portion of this Negotiating Agreement in which time is a
material part. During the Negotiating Period the time periods set forth in this Negotiating Agreement
an 133 (4)cjc
for the performance of obligations hereunder shall apply and commence upon a complete submittal
of the applicable information or occurrence of an applicable event. In no event shall an incomplete
submittal by the Developer trigger any of the CDC's obligations for review, approval and/or
performance hereunder: provided, however, that the CDC shall notify the Developer of an
incomplete submittal as soon as is practicable and in no event later than the applicable time set forth
for the CDC's action on the particular item in question.
XV. [1600) Entire Agreement
This Negotiating Agreement contains the entire understanding and agreement of the Parties,
integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all
negotiatioils or previous agreements between the Parties or their predecessors in interest with respect
to all or any part of the subject Matter hereof.
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COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF WEST COVINA, a public body,
corporate anlitic. .
ROjer.1-lernanttlez,"Cliatrperson
Development West Covina, Inc.
IN WITNESS WHEREOF, the parties hereto have executed this Negotiating Agreement as
of the date set opposite their signatures. The effective date of this Negotiating Agreement is
Goafra , 2009..
• "CDC!'
Community Development Commission Secretary
_Amal.d_M.A.Ndez.G.lasman_
Community Development Commission General Counsel
"DEVELOPER"
ASHDON DEVELOPMENT WEST COVINA,
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