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HomeMy WebLinkAboutRDA NO. 2 UTT JUICE 08-06-01AGENDA REPORT MEETING DATE' AUGUST 6, 2001 400-10 RDA NO. 2 08-.06-01 TO': FROM' WILLIAM A. HUSTON, EXECUTIVE DIRECTOR REDEVELOPMENT AGENCY STAFF SUBJECT: EXCLUSIVE AGREEMENT TO NEGOTIATE A DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) FOR THE UTT JUICE PROPERTY ON THE SOUTHWEST CORNER OF MAIN STREET AND PROSPECT AVENUE SUMMARY Agency approval is requested to enter into exclusive negotiations for an Agency-owned site in the Town Center Project Area. The Agency, by law, may enter negotiations with private developers and property owners seeking to develop projects in Redevelopment Project areas that are consistent with the goals and objectives of the Agency. RECOMMENDATION It is recommended that the Redevelopment Agency authorize the Executive Director or Assistant Executive Director to execute an Exclusive Agreement to Negotiate between the Tustin Community Redevelopment Agency and the Tolkin Group. FISCAL IMPACT The action at this time will have a negligible fiscal impact on the Redevelopment Agency. If the negotiations result in a Disposition and Development Agreement (DDA), the fiscal impact of such an agreement will be discussed if Agency approval of a DDA is requested in the future. BACKGROUND/DISCUSSION In February 1998 the Agency solicited qualifications and interest for the development of the property located at 191,193 and 195 Main Street, which was being acquired by the Agency using its eminent domain authority. Formerly the site of the Utt Juice Company, the site is vacant and in need of substantial renovation. Since April 1998, the Agency has solicited proposals from private developers and entered negotiations with two separate development companies for the redevelopment of the property, which have been unsuccessful. After termination of discussions with Metropolitan Development in April 2001, staff contacted other developers who had expressed an interest. Agency staff received two development proposals including preliminary economic analyses from Georgino Development and the Tolkin Group. Subsequently, Agency staff discussed non-binding business terms with the developers to serve as the framework for exclusively negotiating a DDA for the redevelopment of the Utt Juice property. At this time, staff is recommending the Agency enter exclusive negotiations with the Tolkin Group. The Tolkin Group has extensive experience in development and revitalization efforts in downtown districts. William A. Huston Exclusive Agreement to Negotiate: Utt Juice Property August 6, 2001 Page 2 They have completed recent projects in the cities of Long Beach, Merced and Monrovia. Attached is a summary of their experiences. Also attached is a proposed Exclusive Agreement to Negotiate between the Redevelopment Agency and the Tolkin Group (developer). The Agreement commits the Agency to negotiating in good faith with the intent of entering into a Disposition and Development Agreement (DDA) for the redevelopment of the Utt Juice property. It does not commit the ^goncy to any expenditure of funds nor does it commit the ^§ency to providing financial assistance at this time. Agency staff will seek specific Agency negotiating direction in any financial discussions. If, after negotiating in good faith, the Agency and developer fail to reach a DDA, neither party is liable to the other. The Exclusive Agreement to Negotiate provides for a 120-day negotiating period, which can be extended for 60 days if a DDA has been prepared by the Agency and executed by the developer but not yet approved by the Agency Board, or for 30 days if, in the determination of the Executive Director, the maior business terms of a DDA and Ground Lease have been reached, or by mutual agreement of the Agency and the developer. The Exclusive Right to. Negotiate will allow the developer to proceed in completing preliminary design drawings, detailed economic and cost evaluations, and allow him to begin serious discussions on the necessary financing for the project. FINDING OF BENEFIT This site is located in the Town Center Project Area. On March 6, 2000 the Tustin Community Redevelopment Agency adopted a five-year Implementation Plan for the Town Center and South/Central Redevelopment Project aroas for fiscal yoars 2000-2001 through 2004-2005. 'l'h~ Implementation Plan was composed of two parts, a five-year plan for Redevelopment activities and a five-year plan for housing activities. Anticipated accomplishments and expenditures for the five-year period included tho rehabilitation of substandard and detodoratin§ structures to improve building conditions, increase functionality and desirability, and to integrate design characteristics with the aim of creating a cohesive commercial district in the Town Center Project Area. The proposed project is consistent with the Implementation Plan for the Town Center Project Area. It will remove a blighting influence in the Project Area by rehabilitating or clearing existing improvements that are characterized by substantial deferred maintenance and developing a commercially viable mixed retail and office project. It is anticipated that the proposed project would bring new commercial uses to the Tustin Historic Old Town District and stimulate economic development activity in the Project Area. If financial assistance is provided for this. project through a DDA, Agency staff will prepare and present for the Agency consideration a resolution making the required legal findings. William A. Huston Exclusive Agreement to Negotiate' Utt Juice Property August 6, 2001 Page 3 Christine A. Shingleton ~_~ Assistant City Manager cc report\Utt Juice.doc ,,J~'me~_~/Drau~~ RedOvolopmont~ro~ram Manager Attachment Projects Page 1 of 10 PROJECTS Here are some great pictures and renderings of Tolkin Group's projects. Click each thumbnail to see the full-size picture, then use your Web browser's Back button to return to this page. LEASING INFORMATION PROJECTS - UNDER DEVELOPMENT METLOX DOWNTOWN MANHATTAN BEACH The Metlox Block Project is an approximately 90,000 sq. ft. extension to Downtown Manhattan Beach, the City's upscale commercial walking district. Situated on a three acre parcel at the gateway to Downtown Manhattan Beach, the Metlox Block will house a select mix of lifestyle shopping, dining, and entertainment uses as well as an upscale 40 room bed & breakfast style inn and loft style offices. The Metlox Block is weaved into the. existing Manhattan Beach environment through the construction of individual buildings. The Project is a joint development of Tolkin Group and the City of Manhattan Beach. Click Here for More Information http://www.to lkingroup, com/proj ects.htm 06/05/2001 'Projects Page 2 of 10 CLAREMONT VILLAGE Expansion CLAREMONT VI.LLAGE, California Redevelopment of infiil site (assemblage of Several parcels) anticipated to house a multi-screen fine arts cinema, an independent bookstore, a specialty market, live-work lofts, and a unique mix of entrepreneurial shopping and 'dining concepts weaved into the existing Village environment through the construction of individual building. The extension of a previously terminated City Street intersecting the site. The Project is joint development project of Tolkin Group and the City of Claremont. Click Here for More Information MAINPLACE MERCED, Main Street DOWNTOWN MERCED, California Redevelopment of infiil site (assemblage of several parcels) with a multi-screen cinema, shops and restaurant project housing a multiplex cinemas, and collections of restaurant uses in a pedestrian friendly streetscene. The Project is joint development of Tolkin Group and the City of Merced. http ://www. to lkingroup, com/proj ects.htm 06/05/2001 Proj'ects Click Here for More Information Page 3 of 10 THE PATIO ON MYRTLE - 102 SOUTH MYRTLE DOWNTOWN MONRO. VIA, California ' The Patio on Myrtle is a Renovation and Adaptive Reuse of a bank branch to create a garden .courtyard oriented multi-tenant Food, Restaurant, Cafe and Retail place. The project will be highlighted by the patio dining courtyard and fountain at the gateway to Downtown Monrovia. Click Here for More Information PROJECTS - RECENTLY COMPLETED GLENDALE MARKETPLACE DOWNTOWN GLENDALE, California Redevelopment of a city block (assemblage of 15 parcels) with an approximately 185,000 multi-level urban shopping, dining and entertainment destination housing the Gap Old Navy, a Mann Stadium Style Multi-plex Theatres, the WOW Store(good guys and tower records), Linen & Things and collections of restaurant uses in a pedestrian friendly streetscene.which will be the catalyst to the revitalization of Brand Blvd. (Main Street Glendale). The Project is a joint development of Tolkin Group, the City of Glendale and Regent Properties. http ://www.tolkingroup. corn/proj ects.htm 06/05/2001 Projects Page 4 of 10 VROMAN'S BOOKSTORE & LAEMMLE THEATRE PLAYHOUSE DISTRICT, PASADENA, California Redevelopment of historic vroman's Bookstore, an Pasadena institution for over 100 years, and the addition of a Laemmle Theatres fine arts.oriented multi-screen cinema, a cafe and restaurant. Vroman's'is 'one of the oldest and largest bookstores in Southern California. The Project is a joint development of Tolkin Group, Vroman's Bookstore, Laemmle Theatres and the City of Pasadena. PROJECTS - COMPLETED EXCHANGE BLOCK BUILDING OLD PASADENA, California Certified Historic Renovation and Adaptive Reuse to multi-tenant retail, restaurant and office project in Old Pasadena, housing the first Mi Place Restaurant / Pasadena. Baking Company and Illuminatiions specialty store. http ://www.tolkingroup. com/proj ects.htm 06/05/2001 PrOjects Page 5 of 10 RESTORATION HARDWARE OLD PASADENA, California Historic Renovation and Adaptive Reuse to multi-tenant retail and restaurant project in Old Pasadena, housing first Restoration Hardware Store in Los Angeles County and a Goucho Grill restaurant. The Project is a joint development of T01kin Group and the property owner. PINE AVENUE DOWNTOWN LONG BEACH, California Renovation and Adaptive Reuse to retail project housing Crate & Barrel store, Limited Express store, Bath & Body Works store, Z Gallerie, and Starbucks Coffee. BLUE CAFi~ 1 218 LOFT DowNTOWN LONG. BEACH, California Renovation and Adaptive Reuse of a two multi-'story office buildings t° a restaurant/entertainment establishment and http ://www.tolkingroup. com/proj ects.htm 06/05/2001 Projects. Page 6 of 1 o' live-work lofts in Downtown Long Beach. The project houses the Blue Cafe a popular live Blues club, and lofts catering to the arts and music industries. PASADENA OLD TOWN.- ART CENTER COLLEGE OF DESIGN OLD PASADENA Pasadena, California · Certified Historic Renovation and Adaptive Reuse to multi-tenant retail, restaurant and office project in Old Pasadena. Created as the temporary downtown campus for Art Center College of Design. Currently houses a collection of retail, restaurant and office uses. JAKES DINER OLD PASADENA, California Redevelopment of infill site with second new building in Old Pasadena Historic District. This retail, restaurant, entertainment and office project activates' the adjacent alley by placement of retail stores, a basement billiard club and the office lobby entry along the alley fagade, the substantial improvement of the alley.. http://www, to lkingro up. co m/proj ects .htm 06/05/2001 Projects Page 7 of 10 FRENCH CONNECTION i CELLOPHANE BLDG OLD PASADENA, California Certified Historic-Renovation and Adaptive Reuse to multi-tenant retail and .office project in Old Pasadena housing the upscale French Connection women's clothing store. THE PALACE OLD PASADENA, California Certified Historic Renovation and Adaptive Reuse to multi-tenant office and live-work loft project in Old Pasadena. Toikin Group's main office. 1319 THIRD STREET PROMENADE DOWNTOWN SANTA MONICA, California Renovation and Adaptive Reuse to a retail/restaurant building, housing local entrepreneurial tenants including Bravo Cucina. http ://www.tolkingroup. corrdproj ects.htm 06/05/2001 Projects Page 8 of 10 CHCG BUILDING OLD PASADENA Pasadena, California Redevelopment of infill site with first new building in Old Pasadena Historic District. Award winning retail/office project includes the Old Pasadena "Art Alley" linking the project, the street, and adjacent public parking structure. SALADANG ! KELLY PAPER PASADENA Pasadena, California Redevelopment of infill site with new retail/restaurant building, housing the first Saladang Restaurant and Kelly Paper Company. 34 EAST HOLLY OLD PASADENA Pasadena, California · Certified Historic Renovation and Adaptive Reuse to multi-tenant retail and restaurant project in Old Pasadena. http://www.tolkingroup.com/projects.htm 06/05/2001 EXCLUSIVE AGREEMENT TO NEGOTIATE THIS EXCLUSIVE AGREEMENT TO NEGOTIATE ("AGREEMENT") is made this day of , 2001, by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY ("AGENCY") and TOLKIN GROUP, a California Corporation ("DEVELOPER"). Each of the Agency and Developer are sometimes referred to as the "Party" and collectively as the "Parties." RECITALS The Parties entered into this Agreement on the basis .of the following facts, understandings, and intentions: A. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (Health and Safety Code Sections 33000 et seq.). B. The Agency desires to encourage and effectuate the redevelopment of certain real property (the "Site") owned by the Agency located in the Town Center Redevelopment Project Area of t. he City of Tustin in furtherance of the AgenCy's revitalization efforts, and which consists of that certain real property which is depicted on the "Site Map" attached hereto as Exhibit A and incorporated herein by reference. To this end, the Agency desires to negotiate a Disposition and Development Agreement (DDA) to have the Developer construct a mixed commercial retail and office project on the Site. C. The Developer desires to acquire from the Agency an approximately 0.98-acre Site, which currently contains approximately 6,200 square feet of improvements located at 191, 193, and 195 Main Street and the adjacent.vacant land located along Prospect Avenue to Third Street. D. The Developer desires to negotiate a DDA that involves rehabilitating, reconstructing, or clearing the existing improvements, and developing an approximately 25,000 square feet mixed commercial retail and office project (hereinafter referred to as ("Project"). E. The Developer represents, that it has the necessary expertise, experience, and financial capability to undertake the development contemplated herein. F. The Developer represents and agrees that its acquisition of the Site and its other undertakings pursuant to this Agreement are and shall be used for the timely redevelopment of the Site and not for speculation in land holding. G. The Parties desire, for the period set forth herein, to negotiate diligently and in good faith the terms and conditions of a DDA which will specify rights, obligations and method of participation of the Parties with respect to development of the Site. NOW THEREFORE, and in consideration of the recitals above and the mutual covenants hereinafter contained, the parties agree as follows: 1.0 NATURE OF NEGOTIATIONS 1.1 Good Faith. The Parties agree that for the period set forth in Section 2 and provided that Developer is not in default on any of the obligations under this Agreement, the Parties will negotiate in good faith with respect to a DDA to be entered into between the Parties for development of the Project on the Site. 1.2 Essential Terms The rights and obligations of the Agency and Developer's rights and obligations shall be as specifically set forth in the DDA and shall include without limitation the following: a. Design of the Project, subject to approval rights of the Agency and compliance with all requirements and regulations of the City of Tustin ("City"), including without limitation, applicable zoning. b. Construction of improvements comprising the Project, the completion of which shall be (i) guaranteed by Developer upon terms mutually agreeable to the Parties, and (ii) free of mechanics' liens and liens other than those respecting the financing of the acquisition of the Site and the development of the Project. c. Operation and maintenance of the Project. Attachment A d. Restrictions on transfer of the Project, Developer's interest in the DDA and control of Developer. e. Reimbursement to the Agency of costs incurred in connection with the DDA and the Project. f. Agency financial assistance to the Project. g. Security to assure Developer's performance under the DDA. h. Developer will assume the full and complete responsibility to make all investigations of surface and subsurface conditions as may be necessary or appropriate and to evaluate the suitability of the Site for the development. The Agency on behalf of itself and on behalf of the City does not make any representations or warranties concerning the Site, its suitability for the use intended by Developer, or the surface or subsurface conditions of the Site. 2.0 PERIOD OF NEGOTIATION The Parties agree to negotiate for a period of one hundred twenty (120) days from the date this Agreement is signed by the Agency, and this Agreement shall terminate after the expiration of such period unless extended by the Agency Board as follows: a. For sixty (60) days if a DDA has been prepared by the Agency's Executive Director and executed by Developer and has been submitted to the Agency but has not yet been approved by the Agency Board; or b. For thirty (30) days if the major business terms have been agreed to and the Executive Director determines that further negotiations are likely to result in a written DDA; or c. For such additional time by mutual written agreement of the Parties. Upon termination of this Agreement, any interest that Developer may have under this Exclusive Agreement to Negotiate shall cease and Agency shall have the right to thereafter deal with the Site as it shall determine in its sole discretion. Developer understands and acknowledges that if negotiations culminate in a DDA, such DDA and shall be effective only after and if the DDA has been considered and approved by the Agency Board after all related public hearings as required by law and the Developer performs such conditions as required in the DDA to be performed before the DDA may become effective. 3.0 PLANS, REPORTS, STUDIES AND INVESTIGATIONS Developer shall provide the Agency, without cost or expense to the Agency, copies of all plans, reports, studies, or investigations (collectively, "Plans") prepared by or on behalf of Developer with respect to the Site and the Project. All Plans shall be prepared at Developer's sole cost and expense. If this Agreement is terminated for any reason, the Agency may request that Developer, for consideration to be mutually agreed, transfer ownership rights to any or all Plans identified by the Agency, but under no event shall the cost to the Agency exceed five hundred dollars ($500.00). Upon such request, Developer shall deliver to the Agency copies of all Plans requested by the Agency together with a bill of sale therefor, which Plans shall thereupon be the sole property of. the Agency, free of all claims or interests of Developer or any other person or entity. Upon the Agency's acquiring title to any or all of the Plans, the Agency shall be permitted to use, grant, license or otherwise dispose of such Plans to any person or entity for development of the Site or any other purpose; provided, however, that Developer shall have no liability whatsoever to the Agency or any transferee of title to the Plans in connection with the use of the Plans. 4.0 DEVELOPER'S RESPONSIBILITIES During the period of negotiation, Developer shall prepare and submit to the Agency the following documents and perform the following acts, all in furtherance of the negotiation process: 4.1 Status Reports Developer agrees to make oral and written reports advising the Agency and/or its staff of all matters and studies being made, including Developer's progress in analyzing the feasibility of the Project, as may be requested by the Agency or its staff. 4.2 Development Team Developer shall within fifteen (15) days of execution of execution of this Agreement submit in writing to the Agency full disclosure of the names of Developer's agents, authorized negotiators, professional employees, or other associates of Developer who may be participants in development of the Project, and other relevant information concerning the above such as addresses, telephone numbers, employers. Developer shall also designate and submit in writing to the Agency the names of all Developer's lead negotiators, who shall have authority to make decisions on behalf of the Developer. Developer shall within thirty (30) days of execution of this Attachment A Agreement submit for approval by the Agency's Executive Director, at his sole discretion, the name(s) and qualifications statement of the proposed architect and related consultants 'for the Project. 4.3 Financial Status Developer shall demonstrate to the Agency the financial capacity and capability to perform its obligations under this Agreement, the DDA. Developer's most recent certified financial statement and the financial statements of its key principal or principals shall be submitted to the Agency within forty-five (45) days 'of execution of this Agreement. To the extent Developer wants such financial statements to remain confidential, Developer shall identify with specificity the documents which the Developer wants the Agency to maintain as confidential docUments and a statement of the reasons why such documents are to be maintained as confidential documents, and a statement as to why the request is consistent and complies with the provisions of the Public Records Act of the State of California. If confidentiality is requested and if nondisclosure under the Public Records Act is allowed, the statements shall be delivered to and maintained by the Agency Counsel and copies not disseminated. To the extent permitted by law, the Agency, including Agency Counsel, shall not make public disclosure of the statements. The Agency's negotiators and consultants may review the statements as necessary. If Developer determines to joint venture or partner development of the Site, or if Developer determines to form a new legal entity to develop the Site, Developer shall promptly inform the Agency of such determination and submit to Agency joint venture's or partner's most recent certified financial statements and the financial statements of its key principals. The assignment of Developer's rights under this Agreement, the new entity, partnership or joint venture may be approved in writing by the Agency, provided the Agency, at its sole discretion, is satisfied that the new entity, partnership, or joining venture has the financial capability to perform under this Agreement and the DDA. 4.4 Desicjn Review It is understood and agreed to by Developer that the quality, character, and uses proposed for the Project are of particular importance to the Agency and that planning and design review approval by the Agency and the City will be required for the development of the Site. 5 Developer and the proposed architect shall meet with representatives of the Agency and the City to review and come to a clear understanding of the planning and design criteria required by the Agency and the City. Within sixty (60) days after the date of this Agreement, Developer shall submit for approval of the Agency preliminary design drawings and related documents containing the overall plan for development of the Developer's Project in the form acceptable for submission of an application to the City of Tustin for a design review and a request for a zone change for the site to Planned Development. 4.5 Financincj Plan/Economic Proiection Within sixty (60) days after the date of this Agreement, Developer shall submit a. financing plan and economic projection for the Site. The financing plan shall 'include a detailed statement about the overall costs of constrUction and the source and availability of equity capital, acquisition, development and construction financing. The economic projection shall estimate the market demand and income to be derived from the Project and shall include a pro forma statement of the Project's financial return adequate to enable the Agency to evaluate the economic feasibility of the proposed development of the Project. 4.6 Additional Information Developer understands and agrees that the Agency's negotiating team reserves the right at' any time to request from Developer additional information, including information, data, and commitments to ascertain the depth of Developer's capability and desire to develop the Site expeditiously. The Agency's negotiating team will provide a reasonable time in which Developer may obtain and submit to the Agency such additional information. 4.7 Contacts Durincj Necjotiations Developer shall only negotiate with the Agency's negotiating team as defined in writing by the Executive Director and with no other persons unless expressly authorized to do so by the Agency's negotiating team. During the period of negotiations, Developer shall make no statements to the media without the approval from the Executive Director. Developer's failure to comply with the provisions of this Section shall be conclusive evidence that Developer has not "negotiated in good faith." 5.0 MARKET AND OTHER STUDIES Attachment A 5.1 Market Studies Market and such other studies as the Agency's Executive Director deems appropriate or necessary for completion of the Section 33433 Report identified in section 7.2 of this Agreement shall be prepared by or on behalf of the Agency to consider and analyze the financial impact of the proposed development under the DDA. The Agency shall, at it.s sole cost and discretion, select the consultant(s) to perform said studies and shall enter into contracts with the selected consultants. The Agency shall, at its sole discretion, have the right to direct said consultant(s) and its staff(s) and to terminate the contract of any consultant which the Agency believes is not adequately or objectively performing its obligations under said contract. Developer shall cooperate with the Agency and its selected consultant(s)in responding to any information requested. 5.2 Environmental Studies The Agency's preparation of environmental studies including, but not limed to, an Environmental Impact Report if deemed necessary in accordance with the California Environmental Quality Act ("CEQA")is a legal precondition to the final Agency action of approving and executing the DDA. The Developer shall cooperate with the Agency and abide by the Agency's environmental compliance procedures, and fee requirements, which include but are not limited to, the obligation to deposit funds to pay all of the Agency's costs of preparing the required , environmental studies. 6.0 GOOD FAITH DEPOSIT Prior to the execution of this Agreement by the Agency, Developer shall submit to the Agency a good faith deposit in the sum of ten thousand dollars ($10,000)in the form of a certified cashier's check, irrevocable letter of credit, or other form of security acceptable to the Executive Director to ensure that Developer will proceed diligently and in good faith to negotiate and perform all of Developer's obligations under this Agreement. If the deposit is in cash or a certified cashier's check, it shall be deposited in an interest-bearing account in a bank or trust company selected by the Executive Director. Interest, if any, shall be added to the deposit and held as additional security for Developer's obligations hereunder'. If the Parties enter into a DDA within the time period identified in Section 2.0 of this Agreement or any extension thereto, the Agency shall return the deposit to Developer. If the Parties fail to enter into a DDA within the time period identified in section 2.0 of this Agreement or any extension thereto, the Agency may retain the deposit if Developer has not negotiated diligently or in good faith or has not carried out its obligations under this Agreement. Developer's failure to submit to the Agency plans, reports, studies, investigations, and materials specified in Sections 3.0 and 4.0 of this Agreement within the time periods specified therein shall be deemed to demonstrate Developer's failure to negotiate diligently and in good faith and its failure to carry out its obligations hereunder. If Developer has failed to do so, inasmuch as the actual damages which would result from a breach by Developer of its obligations under this Agreement are uncertain and would be impractical or extremely difficult to determine, the Agency shall be entitled to retain the entire original amount of said 0 deposit plus interest, if any, which has accrued thereon, as liquidated and agreed damages. By their respective initials set forth below, the Agency and Developer acknowledge and agree that forfeiture of the original amount of the deposit (together with any interest earned and accrued thereon) is not in lieu of any other relief, right or remedy to which the Agency might be entitled by reason of Developer's default. Initials: Developer Developer Agency Executive Director 7.0 MISCELLANEOUS 7.1 Real Estate Commissions. The Agency shall not be liable for any real estate commission, finder's fee, or any broker's fees which may arise from this Agreement. The Agency represents that it has engaged no broker, agent, or finder in connection with this Agreement, and Developer agrees to hold the Agency and its representatives harmless from any losses and liabilities arising from or in any way related to any claim by any broker, agent, or finder retained by Developer regarding this Agreement or development of the Project, or purchases/sale of other property at the Site. 7.2 No Agency Duty Except as expressly provided above, the Agency shall have no obligations or Attachment A duties hereunder and no liability whatsoever in the event the Parties fail to timely execute a DDA. Developer understands and acknowledges that the Agency presently owns the Site and that as a condition precedent to approval of a DDA, Agency is required under Section 33433 of California Redevelopment Law to make a finding by resolution after a public hearing that the consideration received by the Agency from the Developer for the Site under the DDA is not less than the fair reuse value of the property at the use and with the covenants and conditions and development costs authorized by the sale or lease. Developer acknowledges and agrees that the Agency, as of the execution hereof, has not agreed to fund, subsidize, or otherwise contribute in any way toward the development of the Project. The Agency's financial and other involvement in the Project will be established by the DDA, if at all. Any financial participation by the Agency as established in the DDA will be determined by the Agency, in its sole and absolute discretion, based upon such factors such as market conditions, density of development, cost of development and/or rehabilitation of the Project, risks associated with development of the Project, estimated or actual revenues and profit to be derived from the Project, public purposes associated with development of the Project, and other matters relevant to establishing the fair market value of the Project to be developed, the financial, requirements of Developer respecting its acquisition of the Site and development of the Project and the financial benefit to be derived by the Agency from development of the Project. By its execution of this Agreement, the Agency is not committing itself or the City to or agreeing to undertake' a) any disposition of land to Developer; or b) any other acts or activities requiring the subsequent independent exercise of discretion by the Agency, the City, or any agency or department thereof. The Parties recognize that one or more of the conditions to Developer's proposal set forth herein may fail to be met as a result of subsequent studies, reviews, and proceedings involving the exercise of discretion by the Agency, the 'City, or any agency or department thereof. This Agreement does not constitute a disposition of property or exercise of control over property by the Agency or the City and does not require a public hearing. Execution of this Agreement by the Agency is merely an agreement to enter into a period of exclusive negotiations 9 according to the terms hereof, reserving final discretion and approval by the'Agency and the City as to any DDA and all proceedings and decisions in connection herewith. 7.3 Non-liabilit7 of Acjenc¥ Officials and Employees No member, official, representative, director, staff member, attorney, or employee of this Agency shall be personally liable to Developer or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to Developer or to its successor, or on any obligations under the terms of this Agreement. 7.4 Public Hearincjs and Compliance If the negotiations hereunder culminate in Developer and Agency's Executive Director concurring on the terms and provisions of a DDA, such DDA will be considered for approval by the Agency only after all required public hearings have been held and after compliance with all applicable laws and ordinances. The Agency's Executive Director's concurrence with the terms and provisions .of a proposed DDA under any provision of this Agreement shall not be construed or interpreted as Agency approval or acceptance of such terms. Such concurrence shall be viewed as nothing more than the Executive Director's willingness to recommend to the Agency Board that the Agency Board approve such terms. 7.5 Entire Acjreement; Att0rneys Fees This Agreement represents the entire agreement of the Parties with respect to the matters set forth herein and supersedes any prior negotiations or ~ontemporaneous writings or statements. This Agreement may not be amended except in writing signed by both of the Parties hereunder. If either Party brings an action or files a proceeding in connection with the enforcement of its respective rights or as a consequence of any breach by.the other Party of its obligations hereunder, then the prevailing Party in such action or proceeding shall be entitled to have its reasonable attorneys' fees and out-of-pocket expenditures paid by the losing Party. 7.6 Covenant Acjainst Discrimination Developer shall not discriminate against nor segregate, any person, or group of persons on account of sex, race, color, age, marital status, religion, handicaps, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of Attachment A the Site, nor shall 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 vendees of the Site. 7.7 Notices All notices required or permitted hereunder shall be delivered in person, by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested to such Party at its address shown below, or to any other place designated in writing by such Party. Agency: Tustin Community Redevelopment Agency 300 Centennial Way Tustin, California 92780 Attention: Assistant Executive Director Developer: Tolkin Group 51 West Dayton Street, Suite 200 Pasadena, CA 91105 Attention: Jonathan A. Tolkin Any such notice shall be deemed received upon delivery, if delivered personally, one (1) day after delivery to the courier, if delivered by courier, and three (3) days after deposit into the United States mail, if delivered by registered or certified mail. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Dated: AGENCY Tustin Community Redevelopment Agency By: William A. Huston Executive Director Approved as to form: Lois Jeffrey Agency Counsel DEVELOPER: By: Jonathan A. Tolkin President Ken Okamoto JD\TownCenterProject\UttJuice~ug 6 ENA. doc Exhibit A __-- ~. 'f'!.R, s r , .. S TR~£ T ~ ------- .,~ . o ~ ® :~ . '-' ; P ~" ,,~t I,': : 9~. ' "'[ ~,.,-..~ I!_~_..:.:..:_. !! '~ - ,,. 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