Loading...
HomeMy WebLinkAboutSite Infrastruction AgreementSITE II RASTRUCTURE AGREEMENT Attachment No. 1 ORIGNA� TIIIS SITE INFRASTRUCTURE AGREEMENT ("Agreement'') is dated as of the 17th day of December, 2013, by and between the City of National City ("City"), Paradise Creek Housing Partners, L.P., a California limited partnership ("Developer"). RECITALS A. The a Developer and the Community Development Commission of the City of National City ("CDC") entered into that certain Disposition and Development Agreement greenent [Transit Oriented Inftll Affordable Housing and Paradise Creek Enhancement Project] dated June 21, 2011 ("DDA"). The Developer will construct, ground lease and operate "Phase r on a portion of the "Site," as both terms are defined in the DDA. The Developer has or will assign its rights and obligations with respect to Phase II, as defined in the DDA, to a limited partnership. B. The City has paid or will pay substantial amounts for preparation of the Phssn I Site, which the Developer has agreed to reimburse to the City, which reimbursements shall be referred to herein as the "Site Infrastructure Reimbursements." NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Developer hereby agree as follows: 1. Site Infrastructure. (a) Maximum Amount. In consideration of the mutual covenants set forth in this Agreement, the Developer shall be obligated to pay to the City up to Four Million and No/100 Dollars ($4,000,000.00) ("Maximum. Site Infrastructure Reimbursement"), on the terms and conditions set forth herein. (b) Payment Amount and Timing. Within ten (10) business days of receiving a demand from the City, the Developer shall reimburse the City for the fees, casts and expenses incurred by the City with respect to preparation of the Site, including without limitation, costs incurred with respect to relocation of persons and improvements loted at the Site; provided, however that the. aggregate amount of such reimbursements :shall not exceed the Maximum Site Infrastructure Reimbursement. The first installment of the Site Infrastructure Reimbursements shall be One Million and No/100 Dollars ($1,000,000.00), which amount shall be due and payable to the City on or before January 6, 2014. The City acknowledges that the Developer will be paying the Site Infrastructure R.eu'nbursements utilizing funds from third -party sources that may not have been feeltl_-Amd5A at the time the City mid Developer are entering into this Agreement. Therefore, notwithstanding anything to the contrary set forth in this Agreement, in the event that the City makes a demand for payment under this Section 1(b) and the Developer has not received funds sufficient to pay the amount demanded, the parties shall meet and confer in order to agree on an amount and a time for payment; and until they reach such an agreement no amounts shall be due hereunder. 1 Attachment No. 2. No Representations or Warranties by the City. Except as set forth in the DDA, the City is not making any representations or warranties whatsoever to the Developer with respect to the condition of the Site, any work done on the Site; or the adequacy or completeness of any Site preparation work. In furtherance and not in limitation of the foregoing sentence, except as set. forth in the DDA, the City HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY RIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE OF HAZARDOUS MATERIALS OR MOLD UPON THE SITE OR ANY PORTION THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE SITE OR ANY PORTION THEREOF IS AFFEC fL1) BY ANY STREAM (SURFACE OR UNDERGROUND), BODY OF WAFER, ER, FLOOD PRONE AREA; FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SUP, LOCATION, AGE., USE, DESIGN, QUALITY, DESCRIPTION, DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE S1`i E. OR ANY PORTION THEREOF, OR ANY RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE SITE OR ANY PART THERE€3F, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) - 12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS MATERIALS IN OR ON, UNDER OR Its THE VICINITY OF THE SITE; (9) THE SQUARE FOOTAGE OF THE SITE OR THE IMPROVEMENTS THEREON; (10) IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL R THE SITE; (14) THE ABILITY OF DEVELOPER TO REZONE THE SITE OR CHANGE THE USE OF THE SITE; (15) THE ABILITY OF DEVELOPER TO ACQUIRE ADJACENT PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY UNDERGROUND UTILI'1'it<S; (17) THE EXISTENCE AND POSSIBLE LOCATION OF ANY ENCROACHMENTS; (18) WHETHER 'flit IMPROVEMENTS ON THE SITE WERE BUILT, I N WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE IMPROVEMENTS ON THE SITE; (20) THE CHARAC fEH. OF THE NEIGHBORHOOD IN WHICH THE SITE IS SITUATED; (21) THE CONDITION OR USE OF THE SiTE OR COMPLIANCE OF THE SITE WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING 2 Attachment No. 1 ORDINANCES, CODES OR OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE SHE OR FITNESS OF THE SITE FOR ANY PARTICULAR PURPOSE (THE DEVELOPER AFFIRMS THAT IT HAS NOt RELIED ON THE CITY'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE SITE FOR ANY PARTICULAR PURPOSE, AND THAT THE CITY MAKES NO WARRANTY THAT THE SITE IS FIT FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MAITER CONCERNING THE SITE: T DEVELOPER SHALL HAVE COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE SITE AND WILL ACQUIRE THE SAME SOLELY ON THE BASIS OF SUCH EXAMINATIONS. THE DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE SITE WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT THE CITY HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE CITY SHALL NOT BE LIABLE FOR ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE SITE NOR SHALL THE CITY BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR OTHER INFORMATION PERTAINING TO THE SI'1'.E OR THE OPERATION THEREOF, FURNISHED BY THE CITY, OR ANY AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON THE CITY'S BEHALF. IT IS ACKNOWLEDGED AND AGREED THAT THE DEVELOPER IS ACQUIRING THE STEh SUBJECT TO THE FOREGOING. THE DEVELOPER. WILL GROUND LEASE THE SITE IN TIS "AS -IS" CONDITION AND HEREBY ACKNOWLEDGES AND AGREES THAT THE DEVELOPER IS FULLY AWARE OF THE AGE OF THE SITE, THAT OVER TIME VARIOUS EVENTS MAY HAVE OCCURRED ON THE Sim WHICH EVENTS MAY BE TYPICAL AND(OR) -ATYPICAL OF EVENTS OCCURRING TO OTHER. PROPERTIES OF SIMILAR AGE TO THE SITE AND SIMILARLY.LOCATED IN THE CITY OF NATIONAL CITY AND/OR THE COUNTY OF SAN DIEGO, CALIFORNIA, THAT SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, M�, FIRE, SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS, PERMITS, APPROVALS, LICENSES AND(OR) ORDERS OF GOVERNMENTAL AGENCIES WITH JURISDICTION OVER ER THE SITE. E. THE ACQUISITION OF ALL OR ANY PORTION OF THE SITE BY THE DEVELOPER [BY GROUND LEASE OR OTHERWISE] SHALL BE CONCLUSIVE EVIDENCE THAT: (A) THE DEVELOPERHAS FULLY AND COMPLETELY INSFEC'1ED (OR HAS CAUSED TO BE FULLY AND COMPLETELY INSPECTED) THE SITE; AND (B) THE DEVELOPER ACCEPTS THE SITE AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE FOR THEIR PURPOSES. 3 Attachment No. 1 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE DEVELOPER SHALL PERFORM AND RELY SOLELY UPON THE DEVELOPER'S OWN INVESTIGATIONS CONCERNING ITS INTENDED USE OF THE SITE, AND THE SITE'S FITNESS THEREFOR. FHE DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT THE CITY' S COOPERATION WHETHER BY PROVIDING DOCUMENTS RELATING TO THE SITE OR PERMITTJNG INSPECTION OF THE SITE, SHALL NOT BE CONSTRUED AS ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SITE, OR WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO THE DEVELOPER IN RELATION TO THE SITE. I-A-c_ DEVELOPER'S INITIALS 3. General Provisions. (a) Governing Law. This Agreement shall be interpreted and construed in accordance with California law, without regard to any choice of law principles. (b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the same instrument (c) Captions. The captions in this Agreement are inserted for convenience of reference and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions of this Agreement. (d) Binding Effect. This Agreement 41311 be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, heirs and permitted assigns. (e) Modifications; Waiver. No waiver, modification, amendment, discharge or change of this Agreement shall be valid unless it is in writing and signed by the. party against which the enforcement of the modification, waiver, amendment, discharge or change is sought. (f) Entire Agreement. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and all prior or contemporaneous agreements, understandings, representations or statements, oral or written, are superseded. (g) Partial Invalidity. Any provision of this Agreement which is unenforceable, invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full effect. 4 Attachment No. 1 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE DEVELOPER SHALL PERFORM AND RELY SOLELY UPON THE DEVELOPER'S OWN INVESTIGATIONS CONCERNING ITS NTElsIDED USE OF THE SITE, AND THE SITE'S FITNESS THEREFOR THE DEVELOPER FURTI-IER ACKNOWLEDGES AND AGREES THAT THE CITY'S COOPERATION WHETHER BY PROVIDING DOCUMENTS RELATING TO THE SITE OR PERMITTING INSPECTION OF THE SYt E, SHALL NOT BE CONSTRUED AS ANY WARRANTY OR. REPRESENTATION, EXPRESS OR Ii 1PLIED, OF ANY KIND W) TH RESPECT TO THE SITE, OR v r i i H RESPECT TO HE ACCURACY, COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO THE DEVELOPER IN '"��N TO THF SITE. 3. General Provisions. (a) Governing Law. This Agreement shall be interpreted and construed in accordance with California law, without regard to any choice of law principles. (b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (c) Captions. The captions in this Agreement are inserted for convenience of reference and in no way define, describe or limit the soope or intent of this Agreement or any of the provisions of this Agreement. (d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors, heirs and permitted assigns. (e) Modifications; Waiver. No waiver, modification, amendment, discharge or change of this Agreement shall be valid unless it is in writing and signed by the party against which the knforcement of the modification, waiver, amendment, discharge or change is sought. (f) %tire Agreement. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and all prior or contemporaneous agreements, understandings, representations or statements, oral or written, are superseded. (g) Partial Invalidity. Any provision of this t' eement which is unenforceable, invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full effect. 4 Attachment No. 1 (h) Attorneys' Fees. The parties agree that the prevailing party in litigation for the breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5 and any other applicable provisions of California law, including, 'without limitation, the provisions of CCP Section 998. All claims, disputes, causes of action or controversies chAll be subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch. (i) Independent Counsel. Each of the parties hereto acknowledges that: (i) they have been given the opportunity to be represented by independent counsel in connection with this Agreement; (ii) they have: executed this Agreement with the advice of such counsel, if such counsel was retained; and (ii) this Agreement is the result of negotiations between the parties hereto and the advice and assistance of their respective counsel, if such counsel was retained. The fact that this Agreement was prepared or negotiated by any party's counsel as a matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this Agreement shall not be construed against either party due to the fact that such party's counsel prepared or negotiated this Agreement in its final form. j) Capacity and Authority. All individuals signing this Agreement for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent and warrant that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above. City: City of Natio, al City B n Morrison, Mayor Apppved as to Form: By: ua G •�j; . Silva, City Attorney IGNATURES CONTINUED ON FOLLOWING PAGE] 5 Attachment No. 9 DEVELOPER: Paradise Creek Housing Partners, L.P., a California limited partnership By: Related/Paradise Creek Development Co., LLC, a California limited liability company hs: Administrative General Partner By; /Lrt Frank Cardone, Vice President By: CHAT Paradise Creek Development Co., LLC, a California limited liability company Its: Managing General Partner By: Community HousingWorks, a California nonprofit public benefit corporation Its: Managing Member By: Anne Wilson, Senior Vice President 6 Attachment No. 1 DEVELOPER: Paradise Creek Housing Partners, L11., a California limited partnership By:Related/Paradise Creek Development Co.. LLC, a California limited liability company Its: Administrative General Partner By: Frank Cardone, Vice President By: CHW Paradise Creek Development Co., LLC, a California limited liability company Its: Managing General Partner By: Community HousingWorks, a California nonprofit public benefit corporation Its: ng Member B ' ../ - y: • Anne...W.1196n, Senior Vice President 6