HomeMy WebLinkAbout00385C - WESTAR ASSOCIATES RAMON GENE AUTRY SHOPPING CENTER WestA,r Associates, Inc
roperty Negotiation
GREEMENT #385C
R1046, 9-2-98
EXCLUSIVE AGREEMENT TO NEGOTIATE
WESTAR ASSOCIATES (RAMON/GENE AUTRY TRAIL)
THIS EXCLUSIVE AGREEMENT TO NEGOTIATE ("AGREEMENT), is made this
day of 1998, by and between the COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF PALM SPRINGS ("AGENCY") and WESTAR ASSOCIATES,
INC. ("Developer").
RECITALS
The parties entered into this Agreement on the basis of the following facts,
understandings, and intentions:
A. The Agency is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under the Community Redevelopment Law of
the State of California (Health and Safety Code Sections 33000, et sue).
B. The Agency desires to effectuate the Redevelopment Plan for Redevelopment
Project Area No. 4 by providing for the development of a regional retail shopping center within
the approximately 38-acre vacant property at the northeast corner of Gene Autry Trail and
Ramon Road (the "Shopping Center").
C. The Developer is experienced in shopping center development and has dealt with
the major tenants who might occupy the Shopping Center. The term "Developer", as used
herein, includes the principals, partners, and joint venturers of Developer and all obligations of
Developer herein shall be the joint and several obligations of such principals, partners, and joint
venturers.
D. Due to various uncertainties, including market conditions and the availability of
tenants, the need to develop a land use plan with adequate environmental review, and conditions
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of the site, including prior soil contamination issues creating significant remediation costs, the
parties believe additional due diligence is necessary before a conclusive purchase agreement can
be concluded.
E. The Agency and Developer desire, for the period set forth herein, to negotiate
diligently and in good faith to prepare an agreement whereby the Developer would develop the
Shopping Center Site for a major regional power center.
NOW, THEREFORE, and in consideration of the mutual covenants hereinafter contained,
it is mutually agreed upon by the parties as follows:
SECTION 1. NATURE OF NEGOTIATIONS.
A. Good Faith. The Agency and the Developer agree that, for the period set forth
in Section 2 herein, they will negotiate diligently and in good faith to prepare and enter into an
agreement (the "DDA") consistent with the provisions of this section for the development of a
Shopping Center (the "Project") on the Site specified herein. The development will be subject
to all rules, regulations, standards, and criteria set forth in the Redevelopment Plan, the City's
General Plan, applicable specific plans and zoning regulations, and with this Agreement. The
DDA will generally be in the form negotiated by the Agency with other development entities.
B. Site. The Project shall be located upon the real property designated as the
"Shopping Center" or the "Site", as shown in the "Site Map," attached hereto as Exhibit "A"
and incorporated herein by this reference. The Site is divided into two ownerships, herein
designated as the "Agency Parcel" and the "Epsteen Parcel".
C. Nature of Shopping Center and Ownership. The Developer's interest shall be
fee. The Developer is responsible for financing and constructing all improvements upon the
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Site. The Shopping Center shall be a "power center" with one or more major tenants
occupying 100,000 or more square feet, and ancillary retail tenants to include uses such as
general merchandise, food, theatres, home improvement, clothing, electronics, sports,
restaurants, and similar uses.
D. Soils. During negotiations for the DDA, Agency shall deliver to Developer all
reports, studies, tests, and other information prepared for Agency concerning the condition of
the soils and the remediation of any contamination upon the Site. Developer may hire any
consultants which Developer deems necessary to study, analyze, and report on the Site and to
develop a remediation plan. Agency shall not be obligated to clean up the property, and
Developer shall take the Site "as-is". However, based upon Developer's review of the Site and
the estimated cost of the remediation plan, the parties shall agree on a remediation budget to be
included in the DDA and to be offset against the purchase price.
E. Financial Provisions.
1. Developer shall acquire a fee interest in the Site at a price to be agreed
upon by the parties with the actual net usable square footage determined through survey, and
with the offset for remediation as mutually agreed to by the parties.
2. Developer shall be responsible for funding the cost of any condemnation
action.
3. Developer shall be responsible for financing and constructing all
improvements.
4. Developer shall pay for all necessary public improvements and pay all
City's fees for processing the Project, without assistance from the Agency.
F. Schedule. The goal will be to develop the Shopping Center for opening by June
to December, 2000. The DDA shall contain a Schedule of Performance. Due to the need to
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possibly acquire the Epsteen Parcel through condemnation, the Epsteen Parcel may be delivered
in a later phase.
G. Use. Transfer. and Maintenance Restrictions. The DDA will generally be
subject to restrictions on use and transfer during construction and for a specified period
thereafter (i) to assure that the use will be consistent with and promote the Redevelopment Plan,
(ii) to protect the character of the Project and to provide an adequate long-term financial return,
(iii) to prevent speculation, and (iv) to assure that any transferee has the resources, capability,
and experience to successfully operate the Shopping Center. In addition, restrictions shall be
recorded to assure proper maintenance of landscaping and improvements.
H. Property Acquisition. To the extent provided by law, the DDA will contain
provisions that the Agency will consider the use of its power of eminent domain for site
assemblage should voluntary negotiations be unsuccessful.
I. Exclusivitv. The Agency agrees for the period set forth in Section 2 that it will
not negotiate with or enter into any agreement with any other entity for development of the Site,
and the Developer agrees not to negotiate with any other person or entity regarding development,
expansion, or redevelopment of a large-scale power center exceeding fifteen (15) acres within
a ten (10)-mile radius of the Site without the approval of Agency.
SECTION 2. PERIOD OF NEGOTIATIONS.
A. Period of Exclusive Negotiation. The period of negotiation shall be one (1) year
from the date this Agreement is signed by the Agency, except as provided herein.
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B. Early Termination. Within one hundred eighty (180) days from the date hereof,
the parties shall meet and review the status of performance under this Agreement (herein
"Midterm Review"). Within such period, Developer should have done the following:
1. Retained the architectural, engineering, and soils consultants necessary to
develop the site plan and remediation plans for the Site.
2. Prepared a preliminary site plan.
3. Prepared a preliminary soils remediation plan.
4. Prepared a preliminary financial proforma.
5. Have developed a tenant interest list specifying tenants contacted and those
from whom commitments have been or will be obtained. To the extent Developer wants such
information to remain confidential, they shall be supplied to the Agency only if confidentiality
can be maintained.
If the parties determine that the Project is not economically feasible, or if Agency
finds Developer's progress with respect to the foregoing unsatisfactory, then Agency may
terminate this Agreement, retaining the Good Faith Deposit as specified in Section 5.
C. Extension of Time. This Agreement shall terminate after the expiration of the
period set in Subsection A unless extended as follows:
1. For sixty (60) days, if an agreement has been prepared by the Agency and
executed by the Developer and has been submitted to the Agency but has not yet been approved
by the Agency Board; or
2. For thirty (30) days if the major business terns have been agreed to and
the Executive Director determines that further negotiations are likely to result in a written
agreement; or
3. By mutual agreement of the parties.
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D. Agency Approval. Developer understands and acknowledges that if negotiations
culminate in an agreement, such agreement shall be effective only after and if the agreement has
been considered and approved by the Agency Board after public hearing thereon as required by
law.
SECTION 3. DEVELOPER'S RESPONSIBILITIES.
During the period of negotiation, Developer will prepare such studies, reports, and
analysis as shall be necessary to permit Developer to determine the feasibility of the Project.
During the period of negotiation, and as requested by the Agency, the Developer shall submit
to the Agency the following:
A. Full disclosure of Developer's principals, partners, joint venturers, negotiators,
consultants, professional employees, or other associates of the Developer who are participants
or principals of the Project, and all other relevant information concerning the above.
B. Statement of financial condition in sufficient detail to demonstrate Developer's
financial capabilities, those of its principals, partners, joint venturers, and those of its
prospective developers to satisfy the commitments necessitated by the Project. To the extent
Developer wants such financial statements to remain confidential, they shall be supplied to the
Agency only if the confidentiality of the statements can be maintained.
C. All information necessary for the design of the Project to meet the Developer's
reasonable requirements. In addition, Developer shall take all actions necessary to obtain
construction and permanent financing.
D. All information necessary to show tenant availability and interest, the nature of
the proposed tenants, and the financial strength and resources of the tenants. To the extent
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Developer wants such information to remain confidential, they shall be supplied to the Agency
only if confidentiality can be maintained.
E. All the information necessary to complete Midterm Review under Section 2.
The Developer shall negotiate exclusively with the Agency's negotiating team and with
no other persons unless expressly authorized to do so by the Agency's negotiating team. During
the period of negotiations, no statements will be made by the Developer to the media without
the approval of the Agency's negotiating team. No prepared statements shall be released to the
media without the mutual consent of the respective negotiating teams.
SECTION 4. AGENCY'S RESPONSIBILITIES.
A. Agency Assistance. The Agency shall cooperate fully in providing Developer
with appropriate information and assistance.
B. Preparation of Agreement. If agreement is reached on the business terns for
inclusion in the agreement, the Agency shall prepare such agreement for consideration by the
Developer.
C. Environmental Quality Act. The Agency will assist Developer in preparing an
environmental impact report or such environmental documentation as may be necessary for the
Project.
D. Zonine. The Agency will undertake all acts necessary to rezone such portions
of the property as may be necessary to permit the Shopping Center on the Site.
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SECTION 5. GOOD PAITII DEPOSIT.
Concurrently with the execution of this Agreement, Developer shall submit to the Agency
a good faith deposit in the sum of Fifteen Thousand Dollars ($15,000.00) in the form of a cash
deposit, cashier's check,irrevocable letter of credit, or other form of security acceptable to the
Agency to insure that the Developer will proceed diligently and in good faith to negotiate and
perform all of the Developer's obligations under this Agreement. If the deposit is in cash or a
certified cashier's check, it shall be deposited in an interest-bearing account in a bank or trust
company selected by the Agency. Interest, if any, shall be added to the deposit and held as
additional security for the Developer's obligations hereunder. Upon termination of this
Agreement, the balance shall be returned to the Developer provided that the Developer has
negotiated diligently and in good faith and carried out its obligations hereunder. If Developer
has failed to do so, in as much as the actual damages which would result from a breach by
Developer of its obligations under this Agreement are uncertain and would be impractical or
extremely difficult to determine, Agency shall be entitled to retain the entire amount of said
deposit, as liquidated and agreed damages. It is further understood that the DDA may require
an increase in the good faith upon execution of the DDA. Notwithstanding the foregoing, the
first Five Thousand Dollars ($5,000.00) shall be non-refundable. In the event, after Midterm
Review in Section 2, it is determined to proceed and prepare a DDA, then, thereafter, the
additional Ten Thousand Dollars ($10,000.00) shall also not be refundable (but shall be
refundable if the Agency terminates at Midterm Review for any reason).
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SECTION 6. MISCELLANEOUS.
A. No Commissions. The Agency shall not be liable for any real estate commission
or any broker's fees which may arise herefrom. The Agency represents that it has engaged no
broker, agent, or finder in connection with this transaction, and the Developer agrees to hold
the Agency harmless from any claim by any broker, agent, or finder retained by the Developer.
B. Ownership of Documents. If the negotiations contemplated by this Agreement
do not result in the execution of an agreement, Developer shall transfer to Agency copies of any
reports, studies, analysis, site plan layouts, engineering studies, memorandums, or similar
documents regarding the proposed development and prepared during the period of negotiations
(except tenant information and proformas), which copies shall become the property of Agency.
Such transfer shall be made without any representation or warranty by the Developer as to the
accuracy or sufficiency of the contents of such documents and shall be made subject to the rights
of the preparers of such documents including, without limitation, the copyright (if any)
associated with such documents.
C. Purpose of Contract. It is expressly understood and agreed by the parties hereto
that this is an Agreement regarding the conduct of contract negotiations only and does not
convey any interest in the property whatsoever. It is further agreed and understood that this
Agreement does not imply any obligation on the part of the Agency to enter into any agreement
that may result in negotiations contemplated herein.
D. Amendment. This Agreement may only be amended by a document in writing
signed by the parties hereto.
E. Time for Acce tance. This Agreement, when executed by the Developer and
delivered to the Agency, shall constitute a binding offer which cannot be withdrawn prior to
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September 30, 1998, so that the Agreement may be presented to the Agency Board.
Notwithstanding any other provision herein to the contrary, Agency shall not be obligated
hereunder unless and until the Agency Board authorizes the Chairperson to execute this
Agreement.
F. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first
above written.
"AGENCY"
COMMUNITY REDEVELOPMENT AGENCY OF
THE CIT)�-(7F-PALM SP GS, a public body,
corporate and politic
C ExQcutive Rirectar
ATTEST: t�
Agency Secretary .11UL
,.1, Gib �miC
AP�OVEDZS1 TO FORM: „t•• � ��� ��91f{lYY y.
Agen�� aunskl
[SIGNATURES CONTINUED ON NEXT PAGE]
276/014084-0006/3189076.3 m08/24/98 -10-
"DEVELOPER"
WESTAR ASSOCIATES, INC.
(Check One: _individual, Lpartnership, Vcorporation)
[NOTARIZED] > �
Signature
P tjNam . —�e3cf' —r `@ -
Print Title: "I p--,es Q et,
[NOTARIZED]
Signature
Print Name: J. D `✓�
Print Title: ��Ae77�y-y
Mailing Address:
(Corporations require two signatures; one from each of the following: (A) Chairman of Board,
President, any Vice President; AND (B) Secretary, Assistant Secretary, Treasurer, Assistant
Treasurer, or Chief Financial Officer.)
[END OF SIGNATURES / NOTARY JURAT(S) FOLLOW]
276/014084-0006/3189076.3 .08/24/98 -1 1-
0
STATE OF CALIFORNIA )
) ss.
COUNTY OF D,4A16)5 )
ON j 9 before me, 0A1111 V'oc- ,Notary Public,
personally
appeared �._ � -'
personally-knowm-to-axe, (er proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
hei4ie/they executed the same in h6Aher/their authorized capacity(ies), and that by hisAff/their
Lev
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal. [SEAL]
Bonny Todorof
Signature U„ Comm.{f113551.8 /��`
• NOTARY PUBLIC CALIF08NIAQ�
�. ORANGE COUNTY (Y -
,, Gomm.Frxp.AprA,26,2001.04
STATE OF CALIFORNIA )
ss.
COUNTY OF )
ON before me, Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal. [SEAL]
Signature
2761014094-0006/3189076.3 m08/24/98 -12-
EXHIBIT "A"
Map of Area Covered by Exclusive Agreement to Negotiate
LAi YINTS�w z3 5 Nr , (f N7�A7 S�M. . 10 31 I 12~ 13 !
"i1r
.. j EPSTEEN PARCEL
3.87 AC. NET
= 103%11 S0.FT.
'� �urra / /• � i bi
I
Q^ `
REDEVELOPMENT AGENCY '
I REDEVELOPMENT AGENCY PARCEL
PARCEL 1 2
8.22 AC. NET 5.39 AC NET 3
I`358185 SQ.FT 234743 SO.. FT
�`
rt •+ ,C
J-t - I . .ao.�r.� �*: ...'..•ter q- _ _
j n
RAMON "" ""Yx ROAD -�
9/ 2Y--- -- -- ---- _'-
r� Epsteen Parcel
Agency Parcel, divided into Parcel 1 and Parcel 2,
separated by Lot B (easement)