2009-105 - Approving Assignment And Assumption Agreement For Acquisition Of 20 Dittos LaneRESOLUTION 2009 -105
RESOLUTION OF THE BOARD OF DIRECTORS OF THE LOS GATOS
REDEVELOPMENT AGENCY APPROVING ASSIGNMENT AND ASSUMPTION
AGREEMENT AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT FOR
ACQUISITION OF AND EVENTUAL DEVELOPMENT OF
20 DITTOS LANE (APN 529 -29 -034)
WHEREAS:
A. On March 13, 2009, ROEM Development Corporation, a developer of affordable
housing, hereafter referred to as "ROEM," entered into an Agreement for Purchase and Sale of
Real Property and Escrow Instructions, hereafter referred to as the "Purchase Agreement,"
regarding 20 Dittos Lane, (APN 529 -29 -034), hereafter referred to as the "Property." ROEM
desires to develop an affordable housing project on the Property.
B. The Property is approximately 1.58 acres in size, is located in the Central Los
Gatos Redevelopment Project Area, has a General Plan designation of Medium Density
Residential, is Zoned R -1D, and is currently used as rental housing, including residential units.
The Property is owned by Nicholas Gera, who offered it for sale on the open market.
C. In April 2008 the Town's Redevelopment Agency was approached by ROEM
regarding possible development of affordable housing on the Property. ROEM subsequently
offered to assign the Purchase Agreement to the Agency so long as the Agency enters into an
agreement granting ROEM an exclusive right to negotiate with the Agency regarding the
development of the Property.
D. The proposed use of the project would be consistent with the Town's General Plan
and the Redevelopment Plan for the Project Area. Subject to future planning and approvals,
acquisition for eventual redevelopment of the Property would help to eliminate current blighting
conditions in the Project Area and would provide an opportunity to develop an appropriate
number of low and moderate income affordable housing units for the benefit of the community
and in satisfaction of various Community Redevelopment Law affordable housing requirements.
E. The Board of Directors of the Agency wishes to acquire the Property for purposes
of developing affordable housing consistent with the General Plan, Zoning and the Central Los
Gatos Redevelopment Project Area Plan.
F, The proposed Assignment and Assumption Agreement regarding the Purchase
Agreement, and the proposed Exclusive Right to Negotiate Agreement are attached hereto as
Exhibits "A and B," respectively and incorporated herein by this reference.
RESOLVED:
The Assignment and Assumption Agreement and Exclusive Right to Negotiate Agreement
are approved and the Executive Director is hereby authorized to execute the agreements in
substantially the form of Exhibits "A and B" hereto.
PASSED AND ADOPTED at a regular meeting of the Town Council /Agency Board of
Directors of the Town of Los Gatos /Los Gatos Redevelopment Agency, California held on the 21"
day of September, 2009, by the following vote:
DIRECTORS:
AYES: Diane McNutt, Joe Pirzynski, Steve Rice, Barbara Spector, Mayor Mike Wasserman
NAYS: None
ABSENT:
ABSTAIN:
SIGNED:
CHAIR OF THE REDEVELOPMENT AGENCY
TOWN OF LOS GATOS
ATTEST:
ECRE ARY OF THE REDEVELOPMENT AGENCY
TO OF LOS G AT
FINAL
ASSIGNMENT AND ASSUMPTION OF AGREEMENT FOR
PURCHASE AND SALE AND ESCROW INSTRUCTION
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENT FOR PURCHASE AND
SALE AND ESCROW INSTRUCTIONS (this "Agreement "), is made and entered into as of
September 21, 2009, by and between ROEM DEVELOPMENT CORPORATION, a California
corporation ( "Assignor "), and the REDEVELOPMENT AGENCY OF THE TOWN OF LOS
GATOS a public body corporate and politic ( "Assignee ").
RECITALS
A. Assignor, as Buyer, and Nicholas Gera, an individual as Seller, have entered into
that certain Agreement for Purchase and Sale of Real Property and Escrow Instructions, dated as of
March 23, 2009, as amended by that certain Addendum to Agreement for Purchase and Sale of
Real Property and Escrow Instructions, dated June 25 and June 29, 2009, and that certain Second
Addendum to Agreement for Purchase and Sale of Real Property and Escrow Instructions, dated
August 27 and August 28, 2009, and as may be subsequently amended in the manner set forth in
Section 5 below (the "Purchase Agreement"), regarding certain improved real property located at
20 Dittos Lane, Los Gatos, California, and more particularly described in Exhibit .A to the Purchase
Agreement. Capitalized terms used but not defined in this Agreement shall have the meanings
given in the Purchase Agreement.
B. Assignor and Assignee desire to evidence the assignment of the interest of "Buyer"
under the Purchase Agreement by Assignor to Assignee, and the assumption by Assignee of all of
the obligations of Assignor under the Purchase Agreement, except as otherwise provided in this
Agreement.
NOW, THEREFORE, in consideration of the Recitals, the promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assi went Subject to satisfaction of the conditions set forth in Section 3 below,
Assignor hereby assigns to Assignee all of the right, title and interest of the `Buyer" under the
Purchase Agreement and (1) all of the right, title and interest of Assignor in and to the Purchase
Agreement, including, without limitation, Assignor's interest in the Deposits and the Reports, and
(2) any claim, right, demand or remedy that Assignor may now or hereafter have or be entitled to on
account of the Purchase Agreement or the negotiations leading thereto.
2. Assum tp ion Subject to satisfaction of the conditions set forth in Section 3 below,
Assignee hereby ass>rumes all of Assignor's obligations under the Purchase Agreement, whether such
obligations first arise or accrue before or after the date of this Agreement, and Assignee agrees that
it shall be bound by the terms and provisions of the Purchase Agreement; provided, however, that
Assignor shall remain responsible for any obligations of Buyer accruing pursuant to Section 3.4 of
the Purchase Agreement resulting from entry on the Property by Assignor or Assignor's agents,
employees, and contractors.
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3. Conditions to Effectiveness The terms of this Agreement and the assignment and
assumption of rights, interests and obligations contemplated hereby shall become effective only
upon satisfaction of all of the following conditions:
a. Assignor (at its sole cost) shall have delivered to Assignee, by not later than
September 22, 2009, (1) the Reports received by Seller pursuant to Section 3.1.1 of the Purchase
Agreement, and (2) a Phase I Environmental Site Assessment for the Property prepared by a
licensed consultant reasonably acceptable to Assignee, and Assignee shall have determined in its
sole discretion, based on the Phase I Environmental Site Assessment, an inspection of the residential
units on the 'Property by a Town of Los Gatos ( "Town ") building inspector, and other information
available to Assignee, that the Property is in physical condition acceptable to'Assignee, such that the
Assignee is prepared to provide a Feasibility Approval Notice pursuant to Section 3.1.2 of the
Purchase Agreement;
b. Assignee shall have. prepared such studies as it deems appropriate (at its sole
cost) and shall have determined in its sole discretion that the potential costs of relocation of
occupants of the Property under any applicable federal and state relocation requirements is
acceptable to Assignee;
c, Assignor shall have provided a Preliminary Title Report for the Property
and a description of all liens, easements, encumbrances, covenants, conditions, and restrictions
that Assignor has accepted or is deemed to have accepted as Permitted Exceptions pursuant to
Section 3.2.4 of the Purchase Agreement, and Assignee shall have determined in its sole
discretion that the condition of title to the Property to which the Property will be subject at the
Close of Escrow is acceptable to Assignee; and
d. , Assignor shall have provided Seller's approval of Assignor's rights under
the Purchase Agreement to Assignee pursuant to Section 8.12 of the Purchase Agreement, in
forin acceptable to Assignee in its sole discretion..
e. An affiliate of Assignor and Assignee shall have executed and delivered to
each other an Exclusive Right to Negotiate Agreement in form and content reasonably
satisfactory to Assignor.
The conditions set forth in subsections a., b., c. and d. above are for the benefit of
Assignee and may be waived only by Assignee. The condition set forth in subsection e. above is
for the benefit of Assignor and may be waived only by Assignor.
In order to enable Assignee to consider satisfaction of the conditions set forth in-
subsections a., b., c., and d. above, Assignor shall arrange with Seller for reasonable and timely
access to the Property and its occupants by Assignee, the Town, and their respective agents and
consultants.
After consulting with Assignor with respect to the condition set forth in
subsection c. above, and if such be the case, Assignee shall provide written notice to Assignor
(the "Effectiveness Notice ") of the satisfaction of all conditions set forth in this Section 3 (or
waiver thereof by the benefited party) and the effectiveness of the terms of this Agreement
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1151 \01 \736885.4
promptly following satisfaction of all conditions but no later than 5:00 pan. local time on .
September 25, 2009.
If all conditions set forth in this Section 3 have not been satisfied (or waived by
the benefited party) by 5:00 p.m. local time on September 25, 2009, then this Agreement shall
not take effect, unless the parties agree otherwise in writing,
4. Notification to Seller. Promptly following receipt of the Effectiveness Notice,
Assignor shall formally notify Seller of the assignment contemplated by this Agreement.
5. Amendment of Purchase Agreement Assignor shall not cause and permit a
farther amendment of the Purchase Agreement without the prior written consent of Assignee,
which shall not be unreasonably withheld, conditioned, or delayed. Assignee shall not cause and
permit a further amendment of the Purchase Agreement effectuating one or more of the
following without the prior written consent of Assignor, which shall not be unreasonably
withheld, conditioned, or delayed: an increase in the Purchase Price; a change in the physical
condition in which the Property will be transferred to Assignor; a change in the condition of title
in which the Property will be transferred to Assignor; or another change that would materially
impair the redevelopment potential of the Property.
6. Reimbursement of Deposits Within five (5) business days after delivery of the
Effectiveness Notice, Assignee shall reimburse to Assignor the amount of Fifty Thousand
Dollars ($50,000), which constitutes the amount of the Deposits made by Assignor pursuant to
the Purchase Agreement. Assignee shall have no other monetary obligation to Assignor under
this Agreement.
7. Counterparts This Agreement may be executed in any number of counterparts,
provided each of the parties hereto executes at least one counterpart; each such counterpart hereof
shall be deemed to be an original instrument, but all such counterparts together shall constitute but
one agreement.
8. Entire Agreement This Agreement constitutes the entire agreement among the
parties pertaining to the assignment of the Purchase Agreement from Assignor to Assignee as of
the date hereof and supersedes all prior and contemporaneous agreements and understandings of
the parties in connection therewith. No representation, warranty, covenant, agreement or
condition not expressed in this Agreement shall be binding upon the parties to this Agreement.
9. Attorney's Fees If it becomes necessary for either party to file a suit to enforce
this Agreement or any provisions contained in this Agreement, or to seek damages for a breach,
the prevailing party shall be entitled to recover, in addition to all other remedies or damages,
reasonable attorney's fees and costs incurred in such suit,
10. Authodty Each party represents and warrants to the other that the signatory
below, has full authority to execute this Agreement on behalf of such party, and that this
Agreement constitutes the valid and binding obligation of such party.
t 1511011736885.4
3
IN WITNESS WHEREOF, the parties hereto Dave executed this Agreement as of the date
first above written.
ASSIGNOR
ROEM DEVELOPMENT CORPORATION, a
California corporation
m:
Jonathan Emami
Vice President
Marcus Griffili
Chief Financial Officer and Treasurer
ASSIGNEE
REDEVELOPMENT AGENCY OF THE
APPROVED AS TO FORM: TOWN OF LOS GATOS, a public body,
corporate and politic
By:
Orry Korb
Agency Counsel
Greg Larson
Executive Director
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1151 \01 \736885.4
FINAL
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
(20 DITTOS LANE DEVELOPMENT)
This Exclusive Right To Negotiate Agreement (this "Agreement ") is entered into as of
September 21, 2009 (the "Effective Date "), by and between the Redevelopment Agency of the
Town of Los Gatos, a public body, corporate and politic (the "Agency "), and Dittos Lane Family
Housing, L.P.., a California limited partnership (the "Developer "). The Agency and the
Developer (sometimes collectively referred to as the "patties ") have entered into this Agreement
on the basis of the followhig facts:
RECITALS
A. The Town Council (the "Town Council ") of the Town of Los Gatos (the "Town ")
has adopted and the Agency is responsible for implementation of the Redevelopment Plan for the
Central Los Gatos Redevelopment Project (the Redevelopment Plan ") to redevelop the Central
Los Gatos Redevelopment Project Area (the "Project Area "), consistent with the policies and
standards of the Redevelopment Plan and the General Plan of the Town (the "General Plan ").
The goals for the Redevelopment Plan include alleviation of blighting conditions and the
provision of affordable housing in the Project Area.
B, Roem Development Corporation ( "Buyer ") has entered into a purchase and sale
agreement (the " Purchase Agreement ") for the acquisition of an approximately 1.58 -acre
property located at 20 Dittos Lane (APN 529 -29 -034) within the Project Area, and more
particularly described in the attached Exhibit A (the "Property ").
C. In turn, the Buyer and the Agency have entered into an assignment and
assumption agreement (the "Assignment Agreement "), dated as of September 21, 2009, whereby
the Developer has assigned and the Agency has assumed (subject to satisfaction of specified
conditions) the rights of the 'Buyer" under the Purchase Agreement, giving the Agency the right
and obligation to purchase the Property in accordance with the Purchase Agreement.
D. The Agency desires to cause development on the Property of a residential
development, including an appropriate mix of affordable housing units, consistent with the
requirements of the Redevelopment Plan, the General Plan, and the California Community
Redevelopment Law (the "Project ").
E. The development of the Project in the Project Area will further the Agency's goals
of providing affordable housing- and will assist in ameliorating blighting influences in the Project
Area.
E. The purpose of this Agreement is to establish procedures and standards for the
negotiation by the Agency and the Developer of a disposition and development agreement (a
"DDA ") pursuant to which the Agency would convey the Property to the Developer and the
Developer would develop, own and operate the Project on the Property. As more fully set forth
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EXI11131T 13
in Section 3. 1, the Developer acknowledges and agrees that this Agreement in itself does not
grant the Developer the right to develop the Project, nor does it obligate the Developer to any
activities or costs to develop the Project, except for the actions and negotiations contemplated by
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the nauftial covenants and promises contained
herein and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties mutually agree as follows:
ARTICLE 1.
EXCLUSIVE NEGOTIATIONS RIGHT
Section 1.1 Good Faith Negotiations The Agency and the Developer shall negotiate
diligently and in good faith, during the Negotiating Period described in Section. 1.2, the terms of
a DDA for the development of the Project on the Property. During the Negotiating Period, the
parties shall use good faith efforts to accomplish the respective tasks outlined in Article 2 to
facilitate the negotiation of a mutually satisfactory DDA.
Among the issues to be addressed in the negotiations are the purchase price for the
Property, appropriate number of affordable units and affordability levels, design, parking and
aesthetic considerations of the Project (including appropriate means of access), the development
schedule for the Project, responsibilities for relocation of existing occupants of the Property,
financing of the Project, marketing and management of the Project, and the provision of public
improvements related to the Project. The amount, timing, method, source and other terms of any
Agency financial assistance toward development of the Project shall be determined through the
negotiating process for the DDA.
Section 1.2 Negotiating Period Subject to earlier termination pursuant to specific
provisions of this Agreement, the negotiating period (the "Negotiating Period ") under this
Agreement shall be two hundred seventy (270) days, commencing on the Effective Date (as set
forth in the Opening Paragraph of this Agreement). The Negotiating Period may be extended or
modified by formal amendment of this Agreement approved by the Agency Board and executed
by the Executive Diiector on behalf of the Agency and the Developer.
If, despite their respective diligent good faith efforts, the parties are unable to reach
agreement and execute and deliver a DDA by the expiration of the Negotiating Period, then this
Agreement shall terminate and neither party shall have any further rights or obligations under
this Agreement; except that the provisions of Sections 1A (regarding refunding of the Deposit
and any interest earned thereon to the Developer), 3.3 and 3.5 shall survive any termination. If a
DDA is executed by the Agency and the Developer then, upon such execution, this Agreement
shall terminate, and all rights and obligations of the parties shall be as set forth in the executed
DDA.
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In addition to termination of this Agreement as described above, if the assignment of the
Developer's rights as "Buyer" under the Purchase Agreement does not become effective due to a
failure to timely satisfy one or more of the conditions set forth in Section 3 of the Assignment
Agreement, then either party may terminate this Agreement by written notice to the other party.
Upon such termination, neither party shall have any further rights or obligations under this
Agreement, except that the provisions of Section 1.4 (regarding refunding of the Deposit and any
interest earned thereon to the Developer), 3.3 and 3.5 shall survive such termination.
Section 1.3 Exclusive Negotiations During the Negotiating Period, the Agency shall
not negotiate with any entity,. other than the Developer, regarding development of the Property,
or solicit or entertain bids or proposals to do so.
Section 1.4 Good Faith Deposit In consideration for this Agreement, the Developer.
shall, concurrently with the execution of this Agreement by the Agency, provide to the Agency a
cash deposit of Twenty -Five Thousand Dollars ($25,000) (the "Deposit "). During the term of
this Agreement, the Agency shall invest the Deposit for purposes of earning interest thereon.
If this Agreement is terminated without execution of a DDA other than as the result of the
occurrence of an uncured.Developer's default pursuant to Section 3.6, the Deposit and any
interest earned tliereon shall be refunded promptly to the Developer.
If this Agreement is terminated by the Agency due to the occurrence of an uncured
Developer's default, the Deposit and any interest earned thereon shall be retained by the Agency,
as more fully provided in Section 3.6.
If performance of this Agreement results in execution of a DDA, the disposition of the
Deposit and any interest earned thereon shall be as set forth in the DDA,
Section 1.5 Identification of Developer Representatives and Development Team
(a) Ne otg_, iating Representatives The Developer's representatives to negotiate
the DDA with the Agency are Jonathan Emaini and Marcus Griffin. The Developer's
negotiating representatives may be changed by written notice to the Agency.
(b) Development Team The parties' acknowledge that the identity and
quality of the Developer's team for the Project is important to the completion of the tasks set
forth in Article 2 below, and in seeking to negotiate a mutually acceptable DDA. The following
shall constitute initial members of the Developer's team for the Project%
Arclutect KTGY
Legal Counsel Cox, Castle & Nicholson LLP
As part of the Preliminary Proposal submitted pursuant to Section 2.3, the
Developer shall Jdentify and seek Agency approval of its proposed civil engineer for the Project,
which approval shall not be unreasonably withheld, conditioned or delayed. The architect and
legal counsel identified above and the civil engineer approved in accordance with Section 2.3
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shall comprise the "Development Team" for the Project. The Developer inay replace one or
more members of the Development Team upon receipt of Agency approval, which approval shall
not be unreasonably withheld, conditioned or delayed.
Section 1.6 Identification of Agency Representatives The Agency's representatives to
negotiate the DDA with the Developer are Bud Lortz and Greg Larson. Greg Larson, as Agency
Executive Director, has ultimate Agency staff authority to make decisions related to this
Agreement that can be made at the staff level, and to make staff recommendations to the Agency
Board in connection with decisions related to this Agreement to be made at the Agency Board
level. The Agency's negotiating representatives may be changed by written notice to the
Developer.
ARTICLE 2,
NEGOTIATION TASKS AND DDA PROVISIONS
Section 2.1 Overview, ERICA. Schedule. To facilitate negotiation of the DDA, the
parties shall use reasonable good faith efforts to accomplish the tasks set forth in this Article 2
within the specific times set forth in the milestone schedule set forth in the attached Exhibit B
(the "ERNA Schedule "), and within an overall timeframe that will support negotiation and
execution of a mutually acceptable DDA prior to the expiration of the Negotiating Period. The
ERNA Schedule may be modified from time to time (including modification of dates for
completion of specified actions and /or addition of further actions) without formal amendment of
this Agreement by written document executed by the Developer and the Agency Executive
Director or the Executive Director's designee; provided, however, in no event shall the overall
duration of the Negotiating Period by modified other than by formal amendment of this
Agreement approved by the Agency Board in accordance with Section 1.2.
In addition, Section 2.2 sets forth certain general terms that the parties intend to
incorporate in any mutually acceptable DDA.
Section 2.2 Certain DDA Provisions The parties acknowledge and agree that any
mutually acceptable DDA shall contain provisions to the following effect,
(a) Ph, sal Condition. The physical condition in which the Agency conveys
the Property to the Developer (provided the Developer is otherwise entitled to such conveyance
under the terms of the DDA) will be the same physical condition in which the Agency receives
the Property pursuant to the Purchase Agreement, namely "AS IS, WITH ALL FAULTS ", as
further described in Sections 4.2.3 and 4.3 of the Purchase Agreement; provided, however, that
the Agency may, in its sole discretion after obtaining the prior written consent of Developer,
which consent shall not be unreasonably withheld, conditioned or delayed, remove any physical
improvements currently located on the Property.
(b) Title Condition The condition of title (including liens, easements,
encumbrances, covenants, conditions, and restrictions) in which the Agency conveys the
Property to the Developer will be the same condition in which the Agency receives the Property
pursuant to the Purchase Agreement.
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(c) Retorts At the time of conveyance of the Property by the Agency to the
Developer, the Agency shall assign, by instrument reasonably acceptable to the Developer, the
Agency's rights, title and interest in and to the Reports (as defined in the Purchase Agreement),
which rights, title and interest have previously been assigned by the Buyer to the Agency
pursuant to the Assignment Agreement,
Section 2.3 Preliminary Proposal; Proposed Term Sheet Within the time set forth in
the ERNA Schedule, the Developer shall prepare and submit to the Agency a preliminary
proposal (the "Preliminary Proposal ") that contains the elements set forth in the attached
Exhibit C
The design components of the Preliminary Proposal shall. serve as the basis for the Initial
Community Workshop (as defiled and described in Section 2.5 below) and for input by the
Agency Board. During the course of preparation of the Preliminary Proposal, the Developer and
the applicable members of the Development Team shall confer with and consider in good faith
the input of Agency staff regarding the scope and content of the Preliminary Proposal.
Within the time set forth in the ERNA Schedule, Agency staff shall provide the
Developer with:
(a) formal comments regarding the Preliminary Proposal, taking into account
the input received at the Initial Community Meeting and from the Agency Board, as well as the
technical input from the Agency's consultants for the Project;
(b) a proposed term sheet (the "Proposed Tenn Sheet ") containing proposed
business and financial terms as a starting point for negotiation of the DDA; and
(c) approval or disapproval of the proposed civil engineer and landscape
architect for the Development Team, for which the Agency's approval shall not be unreasonably
withheld.
Section 2.4 Refined Proposal Within the time set forth in the ERNA Schedule, the
Developer shall submit a refined proposal for the Project (the "Refined Proposal "). The Refined
Proposal shall; (a) be a focused refinement of Preliminary Proposal; (b) contain the elements set
forth in the attached Exhibit D ; and (c) take into account the results of the hsitial Community
Workshop and any Agency Board comments regarding the Preliminary Proposal, the continents
of Agency staff and consultants regarding the Preliminary Proposal, the Developer's response to
the Proposed Term Sheet, and the negotiations to date. The design elements of the Refined
Proposal shall serve as the basis for the Second Community Workshop (as defined in Section 2.5
below).
During the course of preparation of the Refined Proposal, the Developer and the
applicable members of the Development Team shall confer with and consider in good faith the
input of Agency staff regarding the scope and content of the Refined Proposal. To facilitate
preparation of the Refined Proposal, the Agency shall convene a meeting or meetings between
the Developer and knowledgeable representatives of the Town departments that would review
any formal development application for the Project, to obtain input from such representatives of
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illustrative types of general Town development standards and conditions that would typically
apply to projects of a scope and nature similar to the proposed Project. Within the time set forth
in the ERNA Schedule, Agency staff shall provide the Developer with formal comments
regarding the Refined Proposal, taking into account the input received at the Second Community
Workshop and from the Agency Board, as well as the technical input from the Agency's
consultants for the Project.
The Refined Proposal and the Agency's comments thereon shall serve as the basis for
further negotiations of the DDA.
Section 2.5 Community Engagement The Agency and Developer shall confer and
seek agreement on an appropriate strategy to obtain input fiom community members regarding
both the Preliminary Proposal and the Refined Proposal. At a minimum, the Developer shall
take the lead in noticing and conducting an initial public workshop (the "Initial Community
Workshop ") to solicit community input following submittal of the Preliminary Proposal in
accordance with Section 23 and within the tune set forth in the ERNA Schedule, and a second
public workshop (the "Second Community Workshop ") to solicit community input following
submittal of the Refined Proposal in accordance with Section 2.4 and within the tune set forth in
the ERNA Schedule. The Initial Community Workshop and the Second Community Workshop
shall be noticed to all property owners and occupants in the vicinity of the Property.
Section 2.6 Purchase Price for the Property Agency Financial Contribution The
Agency and the Developer shall seek to agree upon the purchase price for the Property, and the
nature, tuning and amount of any Agency financial contribution to the Project. The Agency and
the Developer shall seek to agree upon a purchase price and any Agency financial contribution
based on an "open book" pro forma financial analysis of the Project, using the financial
information contained in the Preliminary Proposal and the Refined Proposal, as well as analysis
of such financial information by Agency staff and consultants, and other relevant information. It
is the parties' intent that any mutually acceptable Agency financial contribution to be included in
a DDA shall be in a farm or forms authorized for funding by the Agency pursuant to the
California Community Redevelopment Law. The proposed purchase price shall be subject. to
confirmation and refinement pursuant to the formal reuse valuation and the noticed hearing and
Town Council finding process to be conducted in accordance with Health and Safety Code
Scction 33433, as further described in Section 2.9 below.
Section 2.7 Reports; Treatment of Documents !Lpon'Termination
(a) Reports Unless otherwise waived by the Agency, the Developer shall
provide the Agency with copies of all reports, studies, analyses, plans, correspondence and
similar documents, but excluding financial or confidential or proprietary information, prepared
or commissioned by the Developer with respect to this Agreement and the Project, promptly
upon their completion.
While desiring to preserve its rights with respect to treatment of certain.
information on a confidential or proprietary basis, the Developer acknowledges that the Agency
will need sufficient, detailed information about the proposed Project (including, without
limitation the financial information to be contained in the Preliminary Proposal (as further
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provided in Exhibit C ) and the Refined Proposal (as further provided in Exhibit D }) to make
informed decisions about the content and approval of the DDA. The Agency will work with the
Developer to maintain the confidentiality of proprietary information subject to the requirements
imposed on the Agency by the Public Records Act (Government Code Section 6253 et se q).
The Developer acknowledges that the Agency may share information provided by the Developer
of a financial and potential proprietary nature with third party consultants and Agency
Boardmembers as part of the negotiation and decision malting process, it being understood that
such third party consultants and Agency Boardmembers shall be under the same requirements
and standards as set forth above in this silbsection (a).
(b) Treatment of Documents Upon Termination If this Agreement is
terminated without the execution of a DDA, the Agency shall return to the Developer any
information submitted by the Developer under this Agreement (and the Agency may, at its cost,
prepare and maintain copies of such information).
Section 2.3 CAA Review Within the time set forth in the ERNA Schedule, the
Agency (in consultation with the Town) shall determine the type of documentation required
pursuant to CEQA for the processing of the DDA and the land use entitlements for the Project,
and shall specify in writing the type and scope of any such CEQA documentation (the "CEQA
Document "), the identity of the proposed preparer of the CEQA Document (consultant or staff),
and the not -to- exceed budget for preparation of the CEQA Document (the "Budget "). The
Developer shall reasonably assist the Agency in its determination by providing information about
the Project, as requested. The Agency shall seek and consider in good faith the Developer's
input regarding the need for and scope of any CEQA Document, and the proposed preparer of
and Budget for any such CEQA Document. The Agency may, from time to time, make
reasonable modifications to the Budget upon prior consultation with the Developer and good
faith consideration of the Developer's input regarding such BLidget modifications.
The Agency (in cooperation with the Town) shall cause preparation of the CEQA
Document as promptly as possible consistent with satisfaction of state and local CEQA
guidelines for the preparation of the CEQA Document. So long as the Developer and the
Agency staff have otherwise concurred upon the terms or a proposed DDA for presentation to
the Agency Board and the Town Council, the parties shall cooperate in good faith to establish
any reasonably necessary modifications to the ERNA Schedule and any reasonably necessary
extension to the Negotiating Period in accordance with Section 1.2 to accommodate the time
necessary to complete the CEQA Document for consideration by the Agency Board and the
Town Council in connection with their consideration of approval of a DDA.
The Developer shall pay the Agency's reasonable costs of preparation of the CEQA
Document consistent with the Budget. Concurrently with the closing and funding of Developer's
pre - development financing or construction financing for the Property, and provided that the
Agency shall have submitted one or more invoices approved for payment by the Agency in
connection with preparation of the CEQA Document, the Developer shall pay to the Agency the
invoiced amount(s) up to the aggregate not -to- exceed amount set forth in the Budget.
Section 2.9 Section 33433 Report If the Developer and Agency staff concur upon the
terms of a proposed DDA for presentation to the Agency Board and the Town Council, the
7
NL\ MGR\ AdminWorkFites \CoafidentietV -21 -09 Dittos Agreement2.DOC
Agency shall prepare the necessary documentation pursuant to Section 33433(a)(2)(B) of the
California Health and Safety Code (the "Section 33433 Report ") to be submitted to the Agency
Board and the Town Council in conjunction with the Agency's and the Town Council's
consideration of any DDA that results from negotiations pursuant to this Agreement. The
Section 33433 report shall contain the estimated value of the Property determined at its highest
and best use under the Redevelopment Plan and the estimated value of the Property determined
at the use and with the conditions, covenants and development costs required pursuant to the
proposed DDA.
Section 2.10 Re placement Housing Plan The Agency shall be responsible for
preparing and presenting for consideration of approval by the Agency Board a replacement
housing plan (the 'Replacement Housing Plan ") with respect to any low and moderate income
residential units on the Property that may be removed fiom the community's affordable housing
stock as a result of the Project if the DDA is approved and implemented. The Replacement
Housing Plan shall be prepared and presented for consideration of approval in the manner and
within the time set forth in Health and Safety Code Section 33413,5, The parties contemplate
that the Replacement Housing Plan will designate affordable residential units in the Project (if
the DDA is approved) to serve as the replacement housing units for any low and moderate
income residential units currently on the Property that are removed. Nothing in this Agreement
shall constitute a representation, warranty, or covenant by the Agency that it will approve any
particular - form of Replacement Housing Plan.
Section 2.11 Progress Reports From time to time as reasonably agreed upon by the
parties, each party shall make oral or written progress reports advising the other party on studies
being made and matters being evaluated by the reporting party with respect to this Agreement
and the Project.
ARTICLE 3.
GENERAL PROVISIONS
Section 3.1 Limitation on Effect of Agreement. This Agreement shall not obligate
either the Agency or the Developer to enter into a DDA or to enter into any particular DDA. By
execution of this Agreement, the Agency is not conuliitting itself to or agreeing to undertake any
conveyance, disposition, or use of the Property. Execution of this Agreement by the Agency is
merely an agreement to conduct a period of exclusive negotiations in accordance with the terms
hereof, reserving for subsequent Agency and Town Council action the final discretion and
approval regarding the execution of a DDA and all proceedings and decisions in corinection
therewith. Any DDA resulting from negotiations pursuant to this Agreement shall become
effective only if and after such DDA has been considered and approved by the Agency Board
and, if required by law, the Town Council, following conduct of all legally required procedures,
and executed by duly authorized representatives of the Agency and the Developer, Until and
unless a DDA is signed by the Developer, approved by the Agency Board, and executed by the
Agency, no agreement drafts, actions, deliverables or communications arising from the
performance of this Agreement shall impose any legally binding obligation on either party to
enter into or support entering into a DDA or be used as evidence of any oral or implied
agreement by either party to enter into any other legally binding document.
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Section 3.2 Notices Formal notices, demands and communications between the
Agency and the Developer shall be sufficiently given if, and shall not be deemed given unless,
dispatched by certified mail, postage prepaid, return receipt requested, or sent by express
delivery or overnight courier service, to the office of the parties shown as follows, or such other
address as the parties may designate in writing from time to time:
Agency: Redevelopment Agency of the
Town of Los Gatos
Town Hall
101 E. Main Street
Los Gatos, CA 95030
Phone: (408) 354 -6867
Attention: Bud Lortz
Developer: Dittos Lane Family Housing, L.P.
ROEM Development Corporation
1650 Lafayette Street
Santa Clara, CA 95050
Phone: (408) 984 -5600,
Attention: Jonathan Emami
With a copy to: Cox, Castle & Nicholson-LLP
555 California Street, 10" Floor
San Francisco, CA 94104 -1513
Phone: (415)262 -5175
Attention: Stephen Ryan & Lisa Weil
Such written notices, demands and connnunications shall be effective on the date shown
on the delivery receipt as the date delivered or the date on which delivery was refused.
Section 3.3 Waiver of Lis Pendens It is expressly understood and agreed by the
parties that no its pendens shall be filed against any portion of the Property with respect to this
Agreement or any dispute or act arising from it.
Section 3.4 Costs and Expenses Each party shall be responsible for its owns costs
and expenses in con section with any activities and negotiations undertaken in connection with
this Agreement, and the performance of each party's obligations under this Agreement. As
further provided in Section 2.8, the Developer shall pay the costs of preparation of the CEQA
Document.
Section 3.5 No Commissions The Agency shall not be liable for any real estate
coimnissions or brokerage fees that may arise from this Agreement or any DDA that may result
from this Agreement. The Agency represents that it has engaged no broker, agent or finder in
conrection with this transaction, and the Developer shall defend and hold the Agency harmless
from any claims by any broker, agent or finder retained by the Developer.
Section 3.6 Defaults and Remedies
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(a) Default Failure by a party to negotiate in good faith as provided in this
Agreement, failure by a party to meet a deadline for performance of an action as set forth in this
Agreement (with particular reference to Exhibit B , the ERNA Schedule), or failure by a party to
observe any other material provision of this Agreement shall constitute an event of default
hereunder.
The non - defaulting party shall give written notice of a default to the
defaulting party, specifying the nature of the default and the required action to cure the default.
If a default remains uncured ten (10) days after receipt by the defaulting party of such notice, the
non - defaulting party may exercise the remedies set forth in subsection (b).
(b) Remedies In the event. of an uncured default by the Agency, the
Developer's sole remedy shall be to terminate this Agreement, upon which termination the
Developer shall be entitled to the return of the Deposit and any interest earned thereon.
Following such termination and the return of the Deposit and any interest earned thereon, neither
party shall have any further right, remedy or obligation under this Agreement; provided,
however, that the Developer's obligations pursuant to Sections 3.3 and 3.5 shall survive such
termination.
In the event of an uncured default by the Developer, the Agency's sole
remedy shall be to termnate this Agreement and to retain the Deposit and any interest earned
thereon. Following such termination, neither party shall have any right, remedy or obligation
under this Agreement; provided, however, that the Developer's obligation pursuant to Sections
3.3 and 3.5 shall survive such termination.
Except as expressly provided above, neither party shall have any liability
to the other for damages or otherwise for any default, nor shall either party have any other claims
with respect to performance Mulder this Agreement. Each party specifically waives and releases
any such rights or claims they may otherwise have at law or in equity.
The parties agree that, based.upon the circumstances now existing, both
known and unknown, it would be impractical or extremely difficult to establish the damages to
the non - defaulting party by reason of a default by the defaulting party. Therefore, it would be
reasonable at the termination of this Agreement pursuant to this subsection (b) to award the non-
defaulting party "liquidated damages" equal to the Deposit (or, where the Developer is the non -
defaulting party, return of the Deposit) plus all accrued interest as the sole and exclusive remedy
of the non - defaulting party.
Section 3.7 Attom sue The prevailing party in any action to enforce this
Agreement shall be entitled to recover attorneys' fees and costs from the other party,
Section 3.8 Governing Law This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
Section 3.9 Entire Agreement This Agreement constitutes the entire agreement of the
parties regarding the subject matters of this Agreement.
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Section 3.10 Assi iitg Went The Developer may not transfer or assign any or all of its
rights or obligations under this Agreement without the Agency's prior written approval, Any
such attempted transfer or assigrunent in violation of the preceding sentence shall be void.
Section 3.11 No Third Party Beneficiaries This Agreement is made and entered into
solely for the benefit of the Agency and the Developer and no other person shall have any right
of action under or by reason of this Agreement.
Section 3.12 Counterparts This Agreement may be executed in counterparts, each of
which shall be deemed an original but all - of which together shall constitute one and the same
agreement.
Section 3.13 Actions By The Agency Except with respect to the ultimate approval of
the DDA and the malting of any statutorily required findings in connection with DDA approval
(which ultimate approval and statutory findings may be made exclusively by the Agency Board
and the Town Council), whenever this Agreement calls for or permits the approval, consent,
authorization or waiver of the Agency, the approval, consent, authorization, or waiver of the
Agency Executive Director or the Executive Director's designee shall constitute the approval,
consent, authorization or waiver of the Agency without further action of the Agency Board.
Section 3,14 Authority Each party represents and warrants to the other that the
signatory below has full authority to execute this Agreement on behalf of such party, and that
this Agreement constitutes the valid and binding obligation of such party.
11
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IN WITNESS WHEREOF, this Agreement has been executed, in triplicate, by the parties
on the date first above written.
APPROVED AS TO FORM:
_e
Orly Korb, Agency Counsel
DEVELOPER:
DITTOS LANE FAMILY HOUSING, L.P., a
California limited partnership
By:
Naive:
Title:
By:
Nance:
Title:
AGENCY:
REDEVELOPMENT AGENCY OF THE TOWN
OF LOS GATOS, a public body corporate and politic
In
Greg Larson, Executive Director
12
1 1 5 110 1173 70 8 7.4
EXHIBIT A
LEGAL DESCRIPTION OF -THE PROPERTY
The Property referred to in the Agreement to which this Exhibit A is attached is situated in the
State of California, County of Santa Clara, Town of Los Gatos and is described as follows:
BEGINNING at a point in the Easterly line of Wilcox Street (formerly Swain's Lane), distant thereon 3 chains
and 4 links Southerly from the Southerly line of Main Street; running thence Southerly along said Easterly line
of Wilcox Street, 120 feet to the North line of a road; thence along the Northerly line of said Road, S. 80 1/2
W. 27 links; thence S. 2 1/4 E. 15 links; thence along the Southerly line of College Avenue (also called Jones
Road) S. 75 W. 3 chains and 36 1/2' links; S. 141/2° E. 42 links and S. 771/2° W. 2 chains and 84 links to
a stake marked "C10 ", standing in the Westerly fence line of said College Avenue (or Jones Road); thence
along said Westerly fence line S. 25 1/20 W. 2 chains and 56 links to a stake marked "D.1" and "L.M.C.1 ",
thence along said Westerly line of said College Avenue or Jones Road (also known as Wilcox Lane or Road), S.
34 30' W. 1 chain and 4 links to a 4" x 4" post marked "KU.12 ", standing in the Northeasterly line of the 2
acre tract of land conveyed by Francis S. Spencer, Trustee, to Edward Ditto by Deed dated March 21, 1882
and recorded in Book 69 of Deeds, page 491; thence along said last named line S. 31 45' E. 30 feet, more or
less, to the intersection with the most Easterly line of said Wilcox Lane or Road (or College Avenue or Jones
Road); thence Southwesterly along said line of said Wilcox Lane or Road to its intersection with the line
between said above mentioned 2 acre tract formerly of Edward Ditto and the 6.20 acre tract of land conveyed
by said Francis E. Spencer, Trustee to James L. Woodard, by Deed dated November 22, 1881 and recorded in
Book 62 of Deeds, page 143; thence along and beyond said last mentioned line N; 34 15' W. 260 feet, more
or less, to a 4" x 4!' fence post marked "D10 ", standing in the fence in the Northerly line of the Old Flume
reservation of the Los Gatos Manufacturing Company; thence along said fence line N. 84 40' E. 1 chains and
33 links to a 4" x 4" fence postmarked "D9 ", N. 76 20' E. 241/2 links to a 4" x 4" fence post marked "D8 ", N.
68 20' E. 49 1/2 links to a 4" x 4" fence post marked "D7, N. 61° E. 49 links to a 4 x 4" fence post marked
"D6 ", N. 57 E. 73 links to a 4" x 4" fence post marked "05 ", and N. 69° E. 24 links to a 4" x 4" fence post
marked "D4 "; thence along the Northerly line of said old flume reservation, N, 74 E..23 links to a stake
marked "DT' standing in the Northerly line of said old flume reservation; thence S. 31° 45' F. 8 feet to a 4','x
4" stake standing in the Southerly line of said old flume reservation of the Los Gatos Manufacturing Company
and at the Northernmost corner of said 2 acre tract of land formerly of Edward Ditto, thence along said
Southerly line of said old flum reservation N. 43" 45' E, 97 1/2 links to a stake marked "DT' and "L.M.C.2 ",
standing in the said Southerly line of said old flume reservation; thence N. 43 3/4 E. 3 chains 72 1/2 links to a
stake in a mound marked "C14 ", standing in the Northerly line of Ditto's lane; thence along the Northerly line
of said Lane N. 601/2° E. 84 links, N. 76 1/2 E. 1 chains and 45 links and N, 73 1/4 E, 3 chains and 98 links
to a point in the said Easterly line of Wilcox Street; and thence Southerly along said Easterly line of Wilcox
Street, 35 links to the point of beginning, being a portion of the Rancho Rinconada de Los Gatos.
Exceptlnt therefrom all that portlon thereof which lies on the Southerly side of said Southerly line of said Wilcox
Lane or Road, (or College Avenue or Jones Road).
ALSO EXCEPTING THEREFROM that portion described in the Deed from Grace M. Crim to Town of Los Gatos, A
.Municipal Corporation, dated June 17, 1938, Recorded June 23, 1938 in Book 878 of Official Records, Page
524, as follows:
Beginning at a point in the Westerly line of Wilcox Street, from which the Northeasterly corner of that certain
tract deeded to Grace M. Crim by Sarah c. Crim by Deed dated August 8, 1928 and Recorded in Book 414
Official Records, Page 462, bears North 4 47' West 69,80 feet along the Westerly line of Wilcox Street and
running thence along a curve to the right having a radius of 69.30 feet through an.arc, the course and
distance of the chord being South 35" 09' West 88.96 feet to a point on the Northerly line of College Avenue
(or Jones Road); and running thence along the Northerly ine of College Avenue, North 75 05' East 39.80 feet;
thence North 2° 15' West 9.90 feet and North 80 30' East 17.82 feet to a point on the Westerly line of Wilcox
Street, and running thence along the Westerly line of Wilcox Street, North 4 47' West 50.20 feet to the point
of begeinning, being a portion of the above mentioned tract deeded to Grace M. Crim,
EXCEPTING THEREFROM that portion thereof conveyed by Sophia C. Skendzel to State of California, by Deed
dated June 7, 1954 and recorded August 9, 1954 in Book 2933 of Official Records, page 648, Recorder's File
No. 997130, described as follows, to wit:
A -1
115 ROW37087.4
EXHIBIT "A" (continued) Title No. 09- 98204756 -B -MC
Locate No. CAM7743- 7743 - 29820098204756
COMMENCING at the most Westerly corner of that certain parcel of land described in the Deed to Sophia C.
.Skendzel, recorded September 12, 1952 In Book 2486, at page 15, Official Records of Santa Clara County,
being on the property line common to the lands now or formerly of Sophia C. Skendzel and of San Jose Water
Works, a corporation; thence along said common property line S. 33° 20' 15" E. 21.12 feet to the property line
common to the lands now or formerly of Sophia C. Skendzel and of Louis Casalegno; thence along last said
common property line S. 33 15" E. 14.15 feet; thence N. 52 50'45" E. 57.09 feet to the property line
common to the lands now or formerly of Sophia C. Skendzel and of Llno Spediacci, et al; thence along lastsald
common property line S. 85 '45" W. 65.08 feet to the point of commencement.
ALSO EXCEPTING THEREFROM that portion thereof, described as follows,
BEGINNING at a point in the Easterly line of Wilcox Street (formerly Swain's Lane) distant thereon 3 chains and
4 links Southerly from the Southerly line of Main Street; thence along said Easterly line of Wilcox Street, S. 3°
11' E. 120.00 feet to the North line of a road; thence along the Northerly line of said road, S. 80 30' W.
17.82 feet; thence S. 2 15' E. 9,90 feet; thence along the Southerly line of College Avenue (also formerly
called Jones Road); S. 75° 05' W. 222,09 feet; thence running S. 14 30' E. 27.72 feet; thence S. 77 30' W.
147.48 feet; thence running N, 35 47' 05" W. 126.41 feet to a point in the Northerly line of Ditto's Lane;
thence along the Northerly line of said Lane and the Easterly prolongation thereof N, 43 45' E. 60,67 feet; N.
60 30' E. 55,14 feet, N. 76 30' E. 95.70 feet and N. 73 15' E. 262.68 feet to a point in the Easterly line of
Wilcox Street; thence along said Easterly line S. 3 11' E. 23.10 feet to the point of beginning, being a portion
of the Rancho Rinconada de Los Gatos.
ALSO EXCEPTING THEREFROM that portion thereof conveyed by Heman D. Childs; et ux, to John Siracusa, et
ux, by Deed dated December 30, 1963 and recorded April 24, 1964 In Book 6476 of Official Records, at page
281, described as follows, to wit:
BEGINNING at the most Westerly corner of that certain parcel of land described in the Deed from Heman D,
Childs, et ux, to First Baptist Church of Los Gatos, Inc., a California corporation, dated June 12, 1961 and
recorded June 30, 1961 in Book 5216 of Official Records, at page 42, Santa Clara County Records; running
thence along the Southwesterly line of said parcel of land, S. 36 38' 08" E. 79.95 feet to the point of
intersection thereof with the existing Northwesterly line of College Avenue; running thence along said
Northwesterly line of College Avenue S. 69° 00' 22" W. 11.27 feet to an angle point therein; thence running
still along the Northerly line of said College Avenue, S. 24 38' 57" W. 175:00 feet; thence leaving said line
and running N. 18 39' 14" W. 143.51 feet to a point in the Southeasterly line of that certain 1,329 acre parcel
of land conveyed by Edward C. Bocci, et ux, to State of California, by Deed dated June 10, 1954 and recorded
September 21, 1954 in Book 2963 of Official Records, at ,page 416, Santa Clara County Records; thence
running along said last named line, N. 41 50' E. 122.50 feet to the point of beginning and being a portion of
the Rancho Rinconada de Los Gatos,
APN: 529 -29 -034
A -2
11511011737087.4
EXHIBIT B
ERNA SCHEDULE
This ERNA Schedule summarizes the schedule for various activities under the Exclusive Right to
Negotiate Agreement (the "Agreement ") to which thus exhibit is attached. The description of items in
this ERNA Schedule is meant to be descriptive only, and shall not be deemed to modify in any way the
provisions of the Agreement to which such items relate. Section references herein to the Agreement
are intended merely as an aid in relating this ERNA Schedule to other provisions of the Agreement and
shall not be deemed to have any substantive effect.
Whenever this ERNA Schedule requires the submission of plans or other documents at a specific time,
such plans or other documents, as submitted, shall be complete and adequate for review by the Agency
within the time set forth herein. Prior to the time set forth for each particular submission, the
Developer shall consult with Agency staff informally as necessary concerning such submission in order
to assure that such submission will be complete and in a proper form within the time for submission set
forth herein.
'Time periods expressed in days in this ERNA Schedule refer to calendar days.
This ERNA Schedule may be modified as provided in Section 2.1 of the Agreement.
DATE
ACTION
Within 30 days after the
The Developer shall submit the Preliminary Proposal to the
Effective Date
Agency. (Section 2.3)
Within 14 days after submittal
The Developer shall conduct the Initial Community
of the Preliminary Proposal
Workshop. (Section 2.3 and 2.5)
Within 30 days after submittal
The Agency shall provide the Developer with written
of the Preliminary Proposal
comments on the Preliminary Proposal (including a Proposed
Ter1n Sheet). (Section 2.3)
Within 60 days after the
The Developer shall submit the Refined Proposal to the
Agency provides written
Agency. (Section 2.4)
comments on the Preliminary
Proposal
Within 7 days following
The Developer shall conduct the Second Coma nunity
submittal of the Refined
Workshop. (Sections 2.4 and 2.5)
Proposal
Within 30 days after receipt of
The Agency shall provide the Developer with written
the Refined Proposal
comments on the Refined Proposal. (Section 2.4)
B -1
1151 \01 \737087.4
DATE
ACTION
At the tune the Agency
The Agency shall advise the Developer regarding the
provides written continents on
preparation of any CEQA Document and the Budget for such
the Preliminary Proposal
CEQA Document, The Agency shall commence preparation
of any required CEQA Document. (Section 2.8)
270 days after the Effective
Expiration of the Negotiating Period, -unless extended in
Date
accordance with Section 1.2.
115'1\01 \737087,4
:a
EXHIBIT C
PRELIMINARY PROPOSAL CONTENTS
The Preliminary Proposal referred to in Section 23 of this Agreement shall include the following
elements:
1. Conceptual Site Plan, A conceptual site plan including building footprints with
square footages, designation of uses, location/number of parking spaces (including handicapped
spaces), points of ingress and egress, physical connections to adjacent areas, etc.
2. Photo Montage of Design Concepts. A photo montage of developments of a
similar design character and quality to. that envisioned for the Project, showing illustrative
examples of: building types; massing; building articulation; exterior and interior design features,
materials and quality; parking and public space features and quality; and other physical
characteristics that are envisioned for the Project. Tire photo montage shall be sufficiently
detailed and shall be an accurate representation of the proposed physical development quality of
the Project in relation to the estimated total development cost amounts shown in the conceptual
development pro - farina described in Item 5 below.
3. Written Project Description. A narrative description of the preliminary
building/development program including: a) the type, scale (building height), size, uses, and
quality level (including preliminary outline specifications, sample materials for facade treatment,
etc.) of the proposed development; b) amount /allocation of on -site parking; c) proposed project
amenities and features; and d) the proposed role requested of the Agency, if any.
4. Affordable Housing Units. A description of the number, income affordability
levels, and unit types (e,g,, nlunber of bedrooms) for the proposed affordable residential units in
the Project.
5. Conceptual Project Pro - forma. A development pro -forma that includes
estimated land, relocation, predevelopment, direct construction (building, on -site and off -site
improvements), indirect and financing costs, projected revenues, and estimated operation costs,
based on the physical design features and quality described in Elements 1 -3 above.
6. financing Plan. A preliminary financing plan, consistent with the Conceptual
Pro- iorina described in Element 5 above, that identifies proposed sources /uses of funds including
estimated debt, equity, and Agency assistance if required (nature, amount, and justifications) for
the Project, and that describes investor's proposed rate of return. The proposed sources of debt
and equity need not identify specific lenders or equity sources, but shall instead include a
discussion of the types of debt and equity that the Developer believes may be accessed for the
Project, as well as the Developer's approach and timing for obtaining such debt and equity.
7. Proposed Schedule of Performance. A preliminary schedule that reflects a
reasonable timeline for development of the Project once a DDA has been approved, including
C -1
I IS I \0 1\737087.4
predevelopment activities (e.g., procurement of entitlements and permits, financing, construction
plans and contract, etc.), commencement of constriction, and completion of construction.
8. Development Team Member. The identity and professional information about
the civil engineer proposed to join the Development Team, as further discussed in Section 1.5.
C -2
115t \01 \737087,4
EXHIBIT D
REFINED PROPOSAL CONTENTS
The Refined Proposal referred to in Section 2.4 of this Agreement shall include the following
elements as a refinement of the Preliminary Proposal, and taking into account the results of the
Initial Community Workshop and any Agency Board comments regarding the Preliminary
Proposal, the comments of Agency staff and consultants regarding the Preliminary Proposal, and
the negotiations to date.
1. Engineered Site Plan. An engineered site plan including building footprints with
square footages, designation of uses, location/number of parking spaces (including handicapped
spaces), footprints for streets, and open spaces, points of ingress and egress, physical comiections
to adjacent areas, etc.
2. Conceptual Elevations. Illustrative examples of building exterior elevations with
details of building features, qualities and articulations.
3. Written Project Description. As a refinement to Element 3 of the Preliminary
Proposal, a revised and updated narrative description of the building/devolopment program
including: a) the type, scale (building height), size, uses, and quality level (including preliminary
outline specifications, sample materials for fagade treatment, etc.) of the proposed development; b)
amount/allocation of on -site parking; and c) proposed project amenities and features. .
4. Affordable Housing Units. As a refinement to Element 4 of the Preliminary
Proposal, a revised and updated description of the overall proposed affordable residential unit
strategy for the proposed Project including: a) the number, affordability levels, and unit types
(e.g., number of bedrooms) for the proposed affordable rental units; and b) the proposed approach
that would be used to attract /secure qualified resident households for the affordable units.
S. Detailed Project Pro- forma. As a refinement to Element 5 of the Preliminary
Proposal, a refined and updated development pro -forma that takes into account the information
from Elements 1 -4 above, and includes estimated land, relocation, predevelopment, direct
construction (building, tenant improvements, on -site and off -site improvements), indirect and
financing costs, projected revenues and estimated operation costs.
6. l+inancing Plan. As a refinement to Element 6 of the Preliminary Proposal, a
refined and updated financing plan, consistent with the Detailed Pro -forma described in Element 5
above, that identifies proposed sources /uses of funds including estimated debt, equity, and Agency
assistance if required (nature, amount, and justifications) for the Project, describes investor's
proposed rate of return, and includes letters of interest from qualified prospective debt and equity
providers tfiat the Developer has done business with before and who have expressed interest, or
who are likely to have interest, in the providing capital for the Project.
7. Proposed Schedule of Performance. As a refinement to Element 7 of the
Preliminary Proposal, a refined and updated schedule that reflects a reasonable timeline for
development of the Project once a DDA has been approved, including predevelopment activities,
commencement of construction, and completion of construction.
D -1
1 151\01 \737087.4