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HomeMy WebLinkAboutOB RESO 3-2014RESOLUTION NO. 3-2014 OVERSIGHT BOARD FOR THE SUCCESSOR AGENCY TO THE CITY OF SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY APPROVING AN EXCLUSIVE NEGOTIATION RIGHTS AGREEMENT WITH MILLER - CYPRESS SSF, LLC FOR POTENTIAL DISPOSITION AND DEVELOPMENT OF FORMER FORD PROPERTIES WHEREAS, the Successor Agency ( "Agency ") is the owner of certain real property (the "Property ") located in the City of South San Francisco, California, known as County Assessor's Parcel Numbers 012- 317 -110 (401 Airport Boulevard), 012 - 317 -100 (411 Airport Boulevard), 012 - 317 -090 (421 Airport Boulevard), 012- 318 -030 (315 Airport Boulevard), 012- 314 -100 (405 Cypress Avenue), and 012 -314 -220 (216 Miller Avenue parking lot); and WHEREAS, the Property was transferred from the City of South San Francisco to the Agency pursuant to Grant Deeds; and WHEREAS, on June 29, 2011 the legislature of the State of California (the "State ") adopted Assembly Bill xl 26 ("AB 26 "), which amended provisions of the Redevelopment Law; and WHEREAS, pursuant to AB 26 and the California Supreme Court decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., which upheld AB 26 (together with AB 1484, the "Dissolution Law "), the Redevelopment Agency was dissolved on February 1, 2012; and WHEREAS, pursuant to the Dissolution Law, the Agency has prepared and the Oversight Board has approved a Long Range Property Management Plan ( "LRPMP ") which is presently under review by California Department of Finance ( "DOF "); and, WHEREAS, the LRPMP being reviewed by the DOF includes development plans for the Property; and, WHEREAS, DOF approval of a LRPMP authorizing a process for conveyance of the Property is required prior to conveyance of the Property, and, WHEREAS, the Agency is interested in selling the Property to Miller Cypress SSF, LLC, a Delaware limited liability company ( "Developer ") contingent upon Developer preparing all appropriate environmental review documents, and applying for land use entitlements from the City of South San Francisco and if such entitlements are granted constructing approximately 266 multi- family residential units ( "Project ") on the Property; and, WHEREAS, the Developer has requested the exclusive right to collaborate with City to develop the Project and negotiate with the Agency for the purpose of reaching agreement on a project description, appropriate land uses, economic feasibility, and a definitive agreement whose terms and conditions would govern any conveyance of the Property and the development of the Property; and WHEREAS, City desires to grant Developer the exclusive right to collaborate and negotiate with City with regard to development of the Property, and WHEREAS, the Successor Agency Counsel has prepared an Exclusive Negotiation Rights Agreement ( "Agreement ") with Developer to reflect the terms and conditions of such exclusive collaboration and negotiation. NOW, THEREFORE, the Oversight Board to the former Redevelopment Agency of the City of South San Francisco does hereby resolve as follows: 1. The Recitals set forth above are true and correct, and are incorporated herein by reference. 2. The Agreement, substantially in the form attached hereto, is hereby approved, and the Executive Director or his designee is hereby authorized to execute it on behalf of the Successor Agency; to make revisions to the Agreement, with review and approval by the Agency Counsel, which do not materially or substantially increase the Agency's obligations thereunder; to sign all documents; to make all approvals and take all actions necessary or appropriate to carry out and implement the intent of this Resolution. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Oversight Board for the Successor Agency to the Redevelopment Agency of the City of South San Francisco at a meeting held on the 19th of August, 2014 by the following vote: AYES: Boardmembers Mark Addiego, Reyna Farrales, Billy Gross, Paul Scannell Vice Chairperson Patti Ernsberger and Chairperson Neil Cullen NOES: Barbara Christensen. ABSTAIN: None. U244215 ATTEST: Reodica, Deputy Clerk it Board for the Successor Agency to the South San Francisco Redevelopment Agency 2 Exhibit A EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT by and between MILLER - CYPRESS SSF, LLC and SOUTH SAN FRANCISCO SUCCESSOR AGENCY EXCLUSIVE ]NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 1161,11,1114 THIS EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT (this "Agreement ") is entered into by and between the SOUTH SAN FRANCISCO SUCCESSOR AGENCY, a public agency ( "Agency ") and MILLER CYPRESS SSF, LLC, a Delaware limited liability company ( "Developer ") dated as of (the "Effective Date "), which is the date this Agreement was approved by the South San Francisco Oversight Board and the South San Francisco Oversight Board ( "Oversight Board ") and the California Department of Finance ( "DOF "). Agency and Developer are each referred to as "Party" or collectively referred to as the "Parties." WHEREAS, the Agency is the owner of certain property certain real property (the "Property ") located in the City of South San Francisco, California, known as County Assessor's Parcel Numbers 012- 317 -110 (401 Airport Boulevard), 012 - 317 -100 (411 Airport Boulevard), 012 - 317 -090 (421 Airport Boulevard), 012- 318 -030 (315 Airport Boulevard), 012 - 314 -100 (405 Cypress Avenue), and 012 - 314 -220( 216 Miller Avenue parking lot), as more particularly described in Exhibit A attached hereto and incorporated herein by this reference; and WHEREAS, the Property was transferred from the City of South San Francisco to the Agency pursuant to Grant Deeds recorded on , ; and WHEREAS, on June 29, 2011 the legislature of the State of California (the "State ") adopted Assembly Bill xl 26 ( "AB 26 "), which amended provisions of the Redevelopment Law; and WHEREAS, pursuant to AB 26 and the California Supreme Court decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., which upheld AB 26 (together with AB 1484, the "Dissolution Law), the Agency was dissolved on February 1, 2012; and WHEREAS, pursuant to the Dissolution Law, the Agency has prepared and the Oversight Board has approved a Long Range Property Management Plan ( "LRPMP") which is presently under review by DOF; and, WHEREAS, the LRPMP being reviewed by the DOF includes development plans for the sites in this Agreement which are consistent with this Agreement; and, WHEREAS, DOF approval of a LRPMP authorizing a process for conveyance of the Property is required prior to conveyance of the Property, and, WHEREAS, the Oversight Board approved this Agreement on , 2014'and DOF approved the Agreement on , 2014, and, WHEREAS, the Agency is interested in selling the Property to Developer contingent upon Developer preparing all appropriate environmental review documents, and applying for EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT GATEWAY EAST -1- 2190181.2 land use entitlements from the City of South San Francisco and if such entitlements are granted constructing approximately 265 multi- family residential units ( "Project ") on the Property; and, WHERAS, the City of South San Francisco ( "City ") is currently processing the Downtown Station Area Plan ( "DSA Plan "), including related Environmental Impact Report ( "EIR ") under the California Environmental Quality Act ( "CEQA ") and related rezoning ( "Rezoning "), that includes the Property and is anticipated, if approved by the City Council, to allow for the development of Project on the Property, or similar type high density, transit - oriented multi- family residential project. The DSA Plan is currently anticipated to be considered by the City Council for final action by the end of 2014, and, WHEREAS, Developer anticipates expending funds to prepare environmental review documents, architectural and design drawings and conduct certain studies that are needed to assess the feasibility of the Project, consistent with the pending DSA Plan, EIR and Rezoning, and requires a grant of exclusive negotiating rights in order to be willing to make such expenditures; and WHEREAS, at its meeting on August 13,2014 the Agency approved this Agreement and directed staff to negotiate a Purchase Agreement for the Property with Developer. NOW FORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows. 1. Good Faith Efforts to Negotiate. The Parties will use their best efforts to successfully negotiate (i) a Purchase Agreement which will describe the terms and conditions governing the purchase of the Property by Developer, and (ii) a Development Agreement between the City of South San Francisco ( "City ") and Developer that will set forth requirements and entitlements for the Project. The Parties will diligently and in good faith pursue such negotiations. Furthermore, the Parties will use their best efforts to obtain any third -party consent, authorization, approval, or exemption required in connection with the transactions contemplated hereby. This Agreement does not impose a binding obligation on Agency to convey any interest in the Property to Developer, nor does it obligate City to grant any approvals or authorizations required for the Property or any project or improvements constructed thereon. a. If Developer has not continued to negotiate diligently and in good faith, Agency will give written notice thereof to Developer who will then have ten (10) business days to commence negotiating in good faith. Following the failure of Developer to thereafter commence negotiating in good faith within such ten (10) business day period, this Agreement may be terminated by Agency. If this Agreement is terminated by Agency pursuant to the above sentence, Developer acknowledges and agrees that Agency will suffer damages, including lost opportunities to pursue other development alternatives for the Property and delayed receipt of property tax EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MMLER- CYPRESS SSF, LLC 2312414 revenues from the Property, and that it is impracticable and infeasible to fix the actual amount of such damages. Therefore, the Parties agree that if this Agreement is terminated as provided above, Agency will retain the Payment (as defined in Section 5 of this Agreement, infra), plus any interest thereon, as fixed and liquidated damages and not as a penalty, and following such termination neither Party will have any further rights against or liability to the other under this Agreement. b. If Agency has not continued to negotiate diligently and in good faith, Developer will give written notice thereof to Agency which will then have ten (10) business days to commence negotiating in good faith. Following the failure of Agency to thereafter commence negotiating in good faith within such ten (10) business -day period, this Agreement may be terminated by Developer. In the event of such termination by Developer, Agency will return the unused portion of the Payment to Developer in accordance with the provisions of Section 5 of this Agreement and neither Party will have any further rights against or liability to the other under this Agreement. C. If, notwithstanding Agency's and Developer's mutual diligent, good faith negotiations, the Parties have not entered into a Purchase Agreement on or before expiration of the Term of this Agreement (as defined in Section 3 of this Agreement) or any extension thereof, Agency will return the Payment after taking into account any expenditures made for costs incurred by the Agency pursuant to this Agreement, and neither Party will have any further rights against or liability to the other under this Agreement. d. If performance of this Agreement results in execution of a Purchase Agreement, the Agency will apply any unused portion of the Payment to either the agreed - upon deposit or purchase price requirement of the Purchase Agreement. 2. Developer's Exclusive Right to Negotiate With Agency. Agency agrees that it will not during the term of this Agreement, directly or indirectly, through any officer, employee, agent, or otherwise, solicit, initiate or encourage the submission of bids, offers or proposals by any person or entity with respect to the acquisition of any interest in the Property or the development of the Property, and Agency will not engage any broker, financial adviser or consultant to initiate or encourage proposals or offers from other parties with respect to the disposition or development of the Property or any portion thereof. Furthermore, Agency will not, directly or indirectly, through any officer, employee, agent or otherwise, engage in negotiations concerning any such transaction with, or provide information to, any person other than Developer and its representatives with a view to engaging, or preparing to engage, that person with respect to the disposition or development of the Property or any portion thereof. EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC ` *i`zIEI 3. Term. a. The term of this Agreement ( "Term ") commences on the Effective Date, and will terminate eight (8) months from the date the City Council approves the Station Area Plan (and related EIR and Rezoning), unless extended or earlier terminated as provided herein. b. During the Term, Developer will provide Agency with progress reports a minimum of every ninety (90) days with respect to Developer's due diligence review of the Property, commencement of environmental requirements under CEQA, preparation of architecture and construction plans, and general progress toward development of the Property. C. During the Term, Agency will provide Developer with progress reports a minimum of every ninety (90) days with respect to the Agency's progress with the DOF approval of a LRPMP and the conveyance of the Property to the Developer and the City's progress with respect to processing and approval of the DSA Plan, EIR and Rezoning. d. The Term of this Agreement may be extended for up to a maximum of ninety (90) additional days upon the mutual written agreement of Developer and Agency acting through and in the discretion of its Agency Executive Director, or his/her designee ( "Agency Executive Director ") and the payment by Developer of $25,000. Developer understands that the Agency will only consider an extension of the Term of this Agreement where Developer has demonstrated, to the Agency's satisfaction, substantial progress towards development of the Property, by submittal of a permit application, the receipt of any City required environmental review documents necessary to satisfy CEQA, submittal of architecture and construction plans, payment of any applicable processing and plan check fees or undergoing City review of any necessary land use entitlements including a development agreement. 4. Relationship of the Parties. Nothing in this Agreement creates between the Parties the relationship of lessor and lessee, of buyer and seller, or of partners or joint venturers. 5. Payment for Agency Costs. a. In consideration for this Agreement and the costs the Agency has and will incur in furtherance of this Agreement and the negotiation of the Purchase Agreement, Developer will, within five (5) days of the Effective Date, submit to Agency a deposit ( "Payment ") in the amount of Fifty Thousand Dollars ($50,000) in immediately available funds. Agency will deposit the Payment in an interest bearing account of the Agency and any interest, when received by Agency, will become part of the Payment. EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 . Agency agrees to account for deposit, interest earnings, and any expenditures made related to the execution of this Agreement consistent with all reporting requirements of the DOF. C. On or before expiration of the Term of this Agreement, the Agency may, in accordance with the provisions of Section l lc) of this Agreement, draw on the Payment to reimburse the Agency's cost for third -party assistance and staff time in the negotiations for and preparation of the Purchase Agreement. The Agency will notify the Developer of the identity, qualifications, scope of work and budget for any third party consultants that will be paid for by the Payment prior to authorizing work under any such third party contract and will provide Developer a written account of such reimbursement, including copies of any third party invoices under approved scopes of work (not including any information subject to attorney client privilege) upon the request of Developer. d. Any amount remaining in the Payment after expiration of the Term of this Agreement or execution of a Purchase Agreement, whichever comes first, and taking into account expenditures authorized by Section 5 above, will be disposed of as provided in Section 1 of this Agreement. e. In addition to Agency Costs discussed herein, Developer shall be subject to all applicable fees imposed by the City for processing land use entitlements as set forth in the City's adopted Master Fee Resolution dated June ---, 2014 and any applicable cost recovery and indemnifications agreements. 6. Terms and Conditions of the Purchase A eement. The Parties agree to use their best efforts to successfully negotiate a Purchase Agreement including, but not limited to, the lease terms, rental payments, terms of the purchase and the option price. The Parties agree the terms shall be generally based on those set forth herein and in Exhibit 1 attached hereto and incorporated herein by reference. 7. Developer's Studies, Right of Entry. a. During the Term of this Agreement, Developer will use its best efforts to prepare, at Developer's expense, any studies, surveys, plans, specifications and reports ( "Developer's Studies ") Developer deems necessary or desirable in Developer's sole discretion, to complete its due diligence for the Property. Developer's Studies may include, without limitation, title investigation, marketing, feasibility, soils, seismic and environmental studies, financial feasibility analyses and design studies. The Developer will have rights of access to the Property to prepare the Developer's Studies. b. Developer hereby agrees to notify the Agency twenty -four (24) hours in advance of its intention to enter the Property. EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 c. Developer will provide the Agency with work plans, drawings, and descriptions of any intrusive sampling it intends to do. Developer must keep the Property in a safe condition during its entry. Developer shall repair, restore and return the Property to its condition immediately preceding Developer's entry thereon at Developer's sole expense. ® Without limiting any other indemnity provisions set forth in this Agreement, Developer shall indemnify, defend (with counsel approved by Agency) and hold the Agency, its officials, officers, employees, consultants, contractors and volunteers ( "Agency Indemnities ") harmless from and against all claims resulting from or arising in connection with entry upon the Property by Developer or Developer's agents, employees, consultants, contractors or subcontractors pursuant to this Section 7. provided however, Developer will have no indemnification obligation with respect to the gross negligence or willful misconduct of any Agency Indemnities. Developer's indemnification obligations set forth in this Section 7 shall survive the termination of this Agreement and shall apply to any claims filed against the Agency within eighteen months of termination of this Agreement. C. If upon expiration of the Term of this Agreement the Parties have not successfully negotiated a Purchase Agreement, Developer will provide Agency within fifteen (15) days following said date of expiration copies of the Developer's Studies completed by such date, not including the intellectual property of Developer. Developer will also provide Agency with copies of any Developer's Studies completed after the expiration of the Term within fifteen (15) days following completion of such studies, or if Developer intends not to complete any Developer Studies, Developer will provide Agency with copies of such uncompleted studies. 8. Agency's Re orts and Studies. Within twenty (20) days following the Effective Date, Agency will make available to Developer for review or copying at Developer's expense all nonprivileged studies, surveys, plans, specifications, reports, and other documents with respect to the Property that Agency has in its possession or control, which have not already been provided. Studies or documents prepared by Agency and its agents solely for the purpose of negotiating the terms of a Purchase Agreement are not required to be provided by Agency to Developer and are excluded from this requirement. 9. Developer's Pro Forma, Evidence of Financing and Schedule for Convevance of Propgt1y Following Potential Ap roval of a Purchase Agreement. At least 45 days prior to Agency consideration of the Purchase Agreement, Developer will provide Agency with a pro forma for the Project that confirms the financial feasibility of Developer's proposed development of the Property and planned financing for the Project. The parties agree that the Purchase Agreement will contain language that provides that: (1) not later than forty-five (45) day prior to conveyance of the Property, Developer will provide evidence satisfactory to Agency that Developer has secured binding commitments, EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER- CYPRESS SSF, LLC 2312414 subject only to commercially reasonable conditions, for all funding necessary for the successful purchase of the Property and completion of the Project, and (2) prior to conveyance of the Property Developer shall obtain approval of final construction plans for Airport Boulevard properties, and issuance of building permits for the Airport Boulevard properties. Not later than forty five (45) prior to consideration of the Purchase Agreement, Developer shall provide a development schedule for all Property. Full Disclosure. Developer is required to make full disclosure to Agency of its principals; officers; major stockholders, partners or members; joint venturers; negotiators; development managers; consultants and directly involved managerial employees (collectively, "Developer Parties "); and all other material information concerning Developer. Any change in the identity of the Developer Parties will be subject to the approval of Agency, which will not be unreasonably withheld. Developer will make and maintain full disclosure to Agency of its methods of financing to be used in the acquisition and development of the Property. 11. Periodic Reporting to Governing Bodies. Agency will report periodically to the Agency Board and/or the Oversight Board of the Successor Agency on the status of negotiations, and Developer may be asked to attend such meetings to provide those bodies with a status update of their development efforts related to this Agreement. 12. Reserved. 13. Confidentiality; Dissemination of Information. To the extent permitted by law, during the term of this Agreement, each Party will obtain the consent of the other Party prior to issuing or permitting any of its officers, employees or agents to issue any press release or other information to the press with respect to this Agreement; provided however, no Party will be prohibited from supplying any information to its representatives, agents, attorneys, advisors, financing sources and others to the extent necessary to accomplish the activities contemplated hereby so long as such representatives, agents, attorneys, advisors, financing sources and others are made aware of the terms of this Section. Nothing contained in this Agreement will prevent either Party at any time from furnishing any required information to any governmental entity or authority pursuant to a legal requirement or from complying with its legal or contractual obligations. 14. Execution of Purchase Agreement. The Agency has no legal obligation to grant any approvals or authorizations for the sale of the Property or any development thereon until the Purchase Agreement has been approved by the Agency, the South San Francisco Oversight Board and the California Department of Finance, if necessary. Such consideration and potential approval shall not occur until the Agency has completed, considered and certified/approved any required CEQA environmental review documents. 15. Termination. a. This Agreement may be terminated at any time by mutual consent of the Parties. EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 b. Agency will have the right to terminate this Agreement upon its good faith determination that Developer is not proceeding diligently and in good faith to carry out its obligations pursuant to this Agreement. Agency will exercise such right in accordance with the provisions set forth in Section 1 of this Agreement. C. Developer will have the right to terminate this Agreement, in accordance with the provisions set forth in Section 1 of this Agreement, if the results of its investigation of the Property are unsatisfactory, in Developer's sole and absolute discretion, with respect to Developer's desired development activities or if Developer is unable to obtain other necessary approvals, rights or interests. d. Neither Party will have the right to seek an award of damages as a result of the termination of this Agreement pursuant to this Section. 16. Effect of Termination. Upon termination as provided herein, or upon the expiration of the Term and any extensions thereof without the Parties having successfully negotiated a Purchase Agreement, this Agreement will forthwith be void, and there will be no further liability or obligation on the part of either of the Parties or their respective officers, employees, agents or other representatives; provided however, the provisions of Section 11 (Expenses), Section 13 (Confidentiality; Dissemination of Information), Section 18 (Indemnification), and Section 22 (Brokers) will survive such termination. Provided further, that upon termination or expiration of this Agreement without the Parties having successfully negotiated a Purchase Agreement, Developer will deliver to Agency all of the Developer's Studies pursuant to the provisions of Section 7 of this Agreement. 17. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement will be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices will be sent by: a. Personal delivery, in which case notice is effective upon delivery; b. Certified or registered mail, return receipt requested, in which case notice will be deemed delivered on receipt if delivery is confirmed by a return receipt; C. Nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; d. Facsimile transmission, in which case notice will be deemed delivered upon transmittal, provided that . A duplicate copy of the notice is promptly delivered by first -class or certified mail or by overnight delivery, or EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER -CYPRESS SSF, LLC 2312414 A transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile will be considered to have been received on the next business day if it is received after 5 :00 p.m. recipient's time or on a nonbusiness day. Agency: South San Francisco Successor Agency 400 Grand Avenue South San Francisco, CA 94080 Attn: City Manager Tel (650) 877 -8501 Fax (650) 829 -6609 with a copy to: Meyers Nave Attn: Steve Mattas 575 Market Street, Suite 2080 San Francisco, CA 94105 Tel (415) 421 -3711 Fax (415) 421 -3767 Developer: Sares -Regis Group of Northern California 901 Mariner's Island Boulevard, 7th Floor San Mateo, CA 94404 Attention: Mark Kroll and Andrew Hudacek Telephone: (650) 378 -2800 Email: mkrollasrgnc.com, ahudacekO,,sr c.com Holland & Knight LLP 50 California Street, Suite 2800 San Francisco, CA 94109 Attention: Tamsen Plume Telephone: (415) 743 -6900 Email: tamsen.plume @hklaw.com 18. Indemnification. Developer hereby covenants, on behalf of itself and its permitted successors and assigns, to indemnify, hold harmless and defend the Agency and the City of South San Francisco and their elected and appointed officials, officers, agents, representatives and employees ( "Indemnitees ") from and against all claims, costs (including without limitation reasonable attorneys' fees and litigation costs) and liability, arising out of or in connection with this Agreement and/or arising out of or in connection with the Developer's access to and entry on the Property pursuant to Section 7 of this EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER- CYPRESS SSF, LLC 2312414 Agreement; provided however, Developer will have no indemnification obligation with respect to the gross negligence or willful misconduct of any Indemnitee. 19. Severability. If any term or provision of this Agreement or the application thereof will, to any extent, be held to be invalid or unenforceable, such term or provision will be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this Agreement or the application of such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable unless an essential purpose of this Agreement would be defeated by loss of the invalid or unenforceable provision. 20. Entire AMement; Amendments In Writing; Counterparts. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the Parties with respect to such subject matter. This Agreement may be amended only by a written instrument executed by the Parties or their successors in interest. This Agreement may be executed in multiple counterparts, each of which will be an original and all of which together will constitute one agreement. 21. Successors and Assigns; No Third -Party Beneficiaries. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided however, that neither Party will transfer or assign any of such Parry's rights hereunder by operation of law or otherwise without the prior written consent of the other Party, and any such transfer or assignment without such consent will be void. Notwithstanding the foregoing, Developer is permitted to assign this Agreement without such written consent, provided that Developer assigns this Agreement to (i) an entity that is wholly controlled by Developer, or (ii) an entity in which the Developer is a member and has day to day management responsibilities for such entity. Subject to the immediately preceding sentence, this Agreement is not intended to benefit, and will not run to the benefit of or be enforceable by, any other person or entity other than the Parties and their permitted successors and assigns. 22. Brokers. Each Party warrants and represents to the other that no brokers have been retained or consulted in connection with this transaction. Each Party agrees to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or liabilities arising in connection with a breach of this warranty and representation. The terms of this Section will survive the expiration or earlier termination of this Agreement. 23. Approvals. Unless otherwise provided in this Agreement, the Agency Manager will be authorized to enter into all written approvals, consents or waivers by the Agency without further authorization by the Agency Council. Nothing herein, however, will be deemed to prevent the Agency Manager from requesting formal approval by the Agency Council if the Agency Manager, in his or her sole discretion, determines to seek such approval. EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 24. Captions. The captions of the sections and articles of this Agreement are for convenience only and are not intended to affect the interpretation or construction of the provisions hereof. 25. Governing, Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. AGENCY By: Mike Futrell Executive Director ATTEST: By: Agency Clerk APPROVED AS TO FORM: By: Steve Mattas Agency Counsel EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 it � � ► FRR IWAL APPROVED AS TO FORM: Ln Tamsen Plume, Holland & Knight, Counsel for Developer EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER- CYPRESS SSF, LLC 2312414 Exhibit A PROPERTY (Attach legal description of Property) EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 00 1 11 Criteria Sares -Regis Preliminary Land Purchase Price Offered • $11,500,000 Prevailing Wages for Construction Yes Sites • 401 -421 Airport Blvd. • 315 Airport Blvd. • 405 Cypress Ave. • Miller Ave. Site Development Type Market -rate rental. Decision on pursuing condos on any site subject to cost- benefit analysis in the future. Condos will be subject to inclusionary housing ordinance Height (floors) • 401 -421 Airport — 6 stories (4 residential over 2 parking) 315 Airport — 6 stories (4 residential over 2 parking) 405 Cypress — 5 stories (4 residential over 1 parking) Miller Avenue — 5 stories (4 residential over 1 parking) Proposed Number of Units 266 Total units 1 -421 Airport —121 units 315 Airport — 68 units 405 Cypress — 37 units Miller Avenue — 40 units Unit Size Composition • 48% One - bedroom 35% Two - bedroom 13% Junior -One 4% Three- bedroom Affordable Units 1 20% BMR would be required per inclusionga EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 2312414.1 EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414 ordinance for condominiums Retail Space/Live Work Live -work units along Cypress and Miller Avenue for projects facing Airport-Blvd. Project Amenities As presented during project tour: Common work/meeting areas, gym, outdoor space Parking 399 parking spaces, with a potential reduction in spaces if financeable Developer's Equity Stake 35% during construction phase Project Entitlement/ Purchase Agreement 8 months after approval of Downtown Consideration and Construction Period Station Plan for consideration of approval of project entitlements including development agreement and purchase agreement • 24 months for construction Project Phasing Project would be entitled as one project and constructed as one project per construction phasing schedule set forth in development agreement subject to force majeure provision. Developer must have (1) approved project financing and (2) obtained building permits for all units prior issuance of certificate of occupancy for any units. Offsite Public Improvements Make a contribution in an amount to be determined during negotiation of purchase agreement for offsite improvements (which will also be identified during project entitlement process and urchase agreement). 2312414.1 EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT MILLER - CYPRESS SSF, LLC 2312414