HomeMy WebLinkAbout2000 CON CDC Hennessey Group - ERN 8th Street0 GN\i
EXCLUSIVE RIGHT -TO -NEGOTIATE AGREEMENT
THIS EXCLUSIVE RIGHT -TO -NEGOTIATE AGREEMENT ("ERN") is entered into this 18th
day of January, 2000, by and between the COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY ("Agency") and HENNESSEY GROUP ("Developer").
RECITALS
The Agency has designated an area within the City of National City ("City") for redevelopment
according to guidelines specified in its ordinances and intends to assist Developer in developing a
certain portion of said redevelopment area, which redevelopment area is shown on the site map
attached hereto as Exhibit "A" and incorporated herein ("Site Map").
ARTICLE 1 - NEGOTIATION
1.1 Good Faith Negptiations
The Agency and the Developer each agree, for the period set forth below, to negotiate
diligently and in good faith to prepare a Disposition and Development Agreement ("DDA")
to be entered into between the Agency and the Developer concerning the area ("Site") which
is shown on the Site Map. For the period herein provided, the Agency agrees to negotiate
exclusively with the Developer, and not with another person or entity, with regard to
disposition and development of the Site. As used herein, the term "Effective Date" shall
refer to the date this Agreement is executed by the Agency. Should the Agency and
Hennessey Group fail to reach an agreement on terms suitable to both parties, the Agency
will refrain from negotiating a transaction with parties with which Hennessey Group had
previously marketed the property. Should the Agency desire to negotiate with such a party,
the Agency will pay Hennessey Group for the value of their efforts.
1.2 Period of Negotiations
The Agency agrees to negotiate with the Developer for a period ("ERN Period")
commencing January 19, 2000 and continuing until May 16, 2000. If at the conclusion of
the ERN Period, the Developer has not signed and submitted a DDA to the Agency together
with a $10,000 deposit ("Deposit") and/or other documents and reports as may be
reasonably required by the Agency, then this Agreement shall automatically terminate. The
Deposit may be in the form of cash, a letter of credit, or such other security as may be
reasonably acceptable to the Agency. If a DDA is so signed and submitted by the
Developer (together with such Deposit and/or documents) to the Agency Executive Director
within such ERN Period, then this ERN shall be extended for sixty (60) days from the date
of such submittal to enable the Agency to take the actions necessary to authorize the Agency
Executive Director to sign such DDA if the Agency desires to do so. The Agency
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covenants and agrees that it will use due diligence and its good faith efforts to satisfy such
conditions and sign the DDA as soon as possible after the submission of the DDA to the
Agency. If the Agency Executive Director has not signed the DDA by such 60th day, then
this ERN shall automatically terminate and the Deposit shall be returned to the Developer,
unless the Sixty (60) day period has been mutually extended in writing by the Agency
Executive Director or his designee ("Designee") and the Developer. If at the expiration of
such extended period, the Agency Executive Director has still not signed the DDA, the
Deposit shall be returned to Developer. If the DDA has been signed, then the Deposit shall
be credited toward the purchase price.
The actual sale price will be determined by a review of the developer's proforma of
development cost and evaluation by an independent, qualified third party hired by the
Agency.
1.3 Nrg tiation Fee
Upon execution of this ERN, the Developer shall submit to the Agency a fee ("Fee") in the
sum of Two Thousand Five Hundred Dollars ($2,5000). If a DDA is entered into, the fee
will be applied to the Deposit for the purchase of the property. The Fee shall be refunded to
the Developer, if after reasonable efforts the parties are unable to reach agreement on the
terms of the DDA.
ARTICLE 2 - PROPOSED DEVELOPMENT
2.1 ,Scope and Schedule of Development
Developer, at its cost, shall prepare and submit to the Agency Executive Director, or its
Designee, the information and data required below within the periods specified below. If
the Developer is unable to provide the information by the required date, it will forward a
letter to the Agency stating why it is unable to provide such information and when it will
provide it; whereupon, the Agency Executive Director, or his Designee, may modify the
time periods for delivery set forth below by written authorization delivered to the
Developer.
2.1.1 Pre-I.and Control Services
a. ,Site Plan
Based upon the concept of a automobile -related filling station and
convenience store, the Developer, at its expense, shall provide a site plan
and architectural concept for the development of the Site, including parking
areas by April 15, 2000. The Developer shall have the right to review with
the Agency members and staff the status of the site plan and architectural
concept in order to ascertain the Agency's position regarding the site plan
and architectural concept. Agency shall make its staff reasonably available
to Developer during the term of the ERN so that Developer can obtain
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preliminary and, if applicable, final approval of the site plan. The Agency
members and staff shall cooperate with the Developer in reviewing such
plans.
b. Written Development Schedule
No later than April 1, 2000, the Developer shall provide a preliminary
written development schedule through construction of all structures and
improvements and complete occupancy of all the buildings to be constructed
by Developer on the Site.
c. Soil Analysis
The Developer, at its expense, shall obtain a preliminary analysis of soil
samples sufficient to demonstrate the feasibility of the proposed
development on a preliminary basis to the Developer and shall provide
copies of such reports to the Agency. Delivery of such reports shall be
contingent upon Developer and Developers' Consultants being granted
access to the parcels included within the Site by the Agency. To the extent
any such reports are not obtained during the Pre -Land Control Period, the
Developer shall deliver such reports during the Post -Land Control Period
described below. In obtaining the preliminary analysis of soil samples, the
Developer shall indemnify, defend, and hold harmless the Agency, the City
of National City, and their officials, agents, and employees from all liability
or loss.
2.1.2 Post -hand Control Services
The Developer shall submit the following no later than May 1, 2000.
a. Refined Development Plan
The Developer shall submit a refined Development Plan which shall consist
of preliminary concept drawings and schematics clearly showing building
footprints, elevations, design theme, preliminary landscaping, signage and
lighting, parking aisles, spaces and medians, vehicular and pedestrian
accessways and exits, and other factors fully descriptive of the proposed
development, all to scale. The Agency agrees that it will cooperate with the
Developer in promptly reviewing such refined Development Plan.
b. Proposed Lenders
The Developer shall advise the Agency in writing of its proposed lenders
(e.g., equity, construction, take-out) as well as any partners as such shall
become known.
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c. Environmental Information Forms
The Developer shall complete the Environmental Information forms as
provided by the Planning Department of the City and submit same, for
approval, to the Planning and Engineering Departments.
d. Rezoning
The Developer shall, to the extent necessary, apply for any rezoning, if
required. The Agency acknowledges, by its execution of this ERN, that the
general plan adopted by the City will accommodate the commercial/retail
uses intended by the Developer and that the Agency will cooperate with the
Developer to effect any such rezoning.
2.2 Obligations of Agency
During the Post -Land Control Period, the Agency shall complete the services described
below.
2.2.1 Cooperation
The Agency acknowledges that the Developer will incur substantial costs and
expenses under this Agreement in connection with its proposed development of the
Site. The Agency agrees that it will reasonably cooperate with the Developer by (a)
processing and reviewing applications, reports, and approvals required by the
Developer in a diligent and timely manner, (b) making staff personnel reasonably
available to the Developer for review of plans and reports, including the Site Plan
and Updated Site Plan, (c) providing documents, studies, reports, resolutions and
ordinances and other information reasonably requested by the Developer, (d) acting
as an intermediary with the City in furthering the Developer's development plan as
contemplated by this ERN and any necessary approvals, permits, or authorizations
required by the Developer in connection with its development of the Site, and (e)
using due diligence to comply with the ERN/DDA Development Schedule.
2.2.2 I,and Surveys
The Agency, where possible, shall provide a copy of any and all land surveys within
the Site to the Developer as such shall become available.
2.2.3 Environmental Reports (Soils)
The Agency will provide by February 15, 2000 a environmental report of the
probability of toxins in the soil of said site. Remediation of any contaminants shall
be determined during the course of negotiation.
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2.3 Progress Reports
The Developer agrees to make a written report advising the Agency on progress and/or
problems with the proposed development by March 7, 2000.
ARTICLE 3 - LAND USE ZONING
and PLANNING REQUIREMENTS
3.1 Land Use Element and Zoning Ordinance Amendments
The Agency staff shall cooperate with Developer before the Planning Commission and City
Council in any applications for land use permits and in any Land Use Element and/or
Zoning Ordinance amendments which may be required. The Developer shall, however, be
the applicant for all such permits and/or amendments and shall file all necessary papers and
pay all fees in order to process any such proposed permits or amendments. Such
cooperation by the Agency staff shall not in any way pre -commit the Agency, Planning
Commission, or City Council to any decision or course of action relative to the proposed
development.
3.2 Preparation of EIR
The Developer shall supply all information to the Agency and to the City of National City,
and shall process all documents necessary to satisfy requirements of the California
Environmental Quality Act. Invitation of consulting firms to submit their qualifications and
preparation of the Agreement for the consultant to prepare any necessary EIR ("EIR
Consultant") shall be mutually agreed upon by the Agency and the Developer. The
Developer shall have fifteen (15) days to review the prospective consulting firms and their
qualifications. Final selection of the EIR Consultant shall be in Agency's sole discretion
following consultation with the Developer. The Developer shall enter into the Agreement
for the preparation of any necessary EIR with the EIR consultant, and the Developer shall
be solely responsible for the EIR consultant's fees.
Upon selection of the EIR Consultant, Developer shall have the right to review the progress
of the EIR Consultant with respect to the preparation of the EIR as more particularly
described below. Upon completion of each stage of preparation of the EIR, including the
preparation of working papers, a proposed outline, first draft, and any revised drafts of the
EIR, the EIR Consultant shall deliver a copy of each such work produced to Developer.
Developer shall have the right to review each such work produced and provide feedback
and input to the EIR Consultant. Prior to presentation of a final draft of the EIR to the
Agency and the City, the Developer shall have the right to review such EIR; and, if such
EIR is not acceptable to Developer, in its sole discretion, Developer shall have the right to
terminate this Agreement.
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ARTICLE 4 - THE DEVELOPER
4.1 Offices of the Developer and Aggney
The principal offices of the Developer and Agency are located at:
Developer:
Agency:
HENNESSEY GROUP
17581 Irvine Boulevard, Suite 108
Tustin, CA 92780
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY
140 E. 12th Street, Suite B
National City, CA 91950-3312
All communications shall be forwarded to the Developer and Agency by first-class U.S.
mail, postage prepaid, at the respective above addresses or such other addresses as may be
directed by either party or by overnight courier or facsimile machine.
ARTICLE 5 - PUBLIC HEARING
If the negotiations hereunder culminate in a DDA, such DDA becomes effective only if and when
such DDA has been considered and approved by the Agency and is executed by the Agency. The
DDA shall be considered at a public meeting in accordance with State Law. Nothing herein shall
require either the Agency or City Council to approve the ERN or DDA. The Developer will
cooperate with the Agency and Council in the preparations for the conduct of public meetings or
hearings on the Final Development Plan, the EIR, and DDA.
ARTICLE 6 - REAL ESTATE COMMISSION
The Agency shall not be liable for any real estate commissions or brokerage fees, which may arise.
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. The Agency in the future will not utilize such services
without the Developer's prior consent.
ARTICLE 7 - GENERAL PROVISIONS
7.1 Attorney's Fees
In the event any action shall be instituted between Developer and Agency in connection
with this ERN, the prevailing party in such action shall be entitled to recover from the other
party all of its costs of action, including reasonable attorneys' fees as fixed by the court
therein.
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7.2 Governing Law
This ERN and the documents in the form attached as exhibits hereto shall be governed by
and construed under the laws of the State of California.
7.3 Severability
In the event that any phrase, clause, sentence, paragraph, section, article, or other portion of
this Agreement shall become illegal, null, or void or against public policy for any reason, or
shall be held by any court of competent jurisdiction to be illegal, null, or void or against
public policy, the remaining portions of this ERN shall not be affected thereby and shall
remain in force and effect to the fullest extent permissible by law.
7.4 Mediation/Arbitration
If a dispute arises out of or relates to this ERN, or the breach thereof, the parties agree first
to try, in good faith, to settle the dispute by mediation in San Diego, California, in
accordance with the Commercial Mediation Rules of the American Arbitration Association
(the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally
by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or
breach thereof, which is not resolved by mediation shall be settled by arbitration in San
Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then
existing. Any award rendering shall be final and conclusive upon the parties, and a
judgment thereon may be entered in any court having jurisdiction over the subject matter of
the controversy. The expenses of the arbitration shall be borne equally by the parties to the
arbitration, provided that each party shall pay for and bear the costs of its own experts,
evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part
hereof against a specified party as part of the arbitration award.
7.5 No Obligations to Third Parties
Except as otherwise expressly provided herein, the execution and delivery of this ERN shall
not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person
or entity other than the parties hereto.
7.6 Entire Agreement
This Agreement supersedes any prior agreements, negotiations and communications, oral or
written, and contains the entire agreement between the parties as to the subject matter
hereof. No subsequent agreement, representation, or promise made by either party shall be
of any affect unless it is in writing and executed by the party to be bound thereby.
7.7 Assignment: Successors and Assigns
This ERN shall not be assigned by either party without the express written consent of the
other party hereto. This ERN shall be binding upon and shall inure to the benefit of the
successors and assigns of the parties hereto.
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IN WITNESS WHEREOF, the Agency and the Developer have executed this Exclusive Right -to -
Negotiate Agreement as of the date and year set under their signatures.
APPROVED AS TO FORM:
/*-4 's
George H. Eiser, III
City/CDC Attorney
Attachments: Exhibit "A" - Site Map
AGENCY:
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY
George H. W ers, Chairman (Mayor)
DEVELOPER:
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RIGHT OF ENTRY
Hennessey Group
Attn: Michael Hennessey
17581 Irvine Blvd. Suite 108
Tustin, Ca 92780
Project: Hennessey
Parcel: 555-054-07,08,10,11
Grantor: CDC
1 Permission is hereby granted by the Community Development Commission of the
City of National City (CDC) herein after referred to as "Owner" to Hennessey
Group, its agents, contractors, potential tenants to enter onto the Property for the
purpose of performing certain activities described more particularly as: investigate
and collect samples by drilling various holes for the purpose of soil testing and
sampling, land surveying, and any other test or study that may be necessary, and
replace with uncontaminated soil or granular betonite, accomplishing all necessary
incidents thereto.
2. The permission shall remain in effect for a period of 180 working days after the
Agreement is signed, or until completion of the work by Hennessey Group,
whichever occurs first. Hennessey Group shall provide to the Owner written notice
of commencement of work.
3. Hennessey Group, and its agents and contractors, shall keep the Property free
from all encumbrances and/or liens including all costs and attorney's fees in
defending any claim or liability in anyway connected with Hennessey Group (or
Hennessey Group's contractor or subcontractor) failure to pay any person(s)
referred to in Section 3181 of the California Civil Code which may be instituted or
filed against the Property.
4. Hennessey Group hereby releases and agrees to protect, defend, hold harmless
and indemnify Owner from and against all demands, claims, injury, liability, loss,
damage, cost and expense, however same may be caused, including all costs and
reasonable attorney's fees in providing the defense to any claim arising therefrom,
for any loss of or damage to property (real and/or personal), for personal injury to or
death of any person or persons arising out of or occurring by reason of, or anyway
connected with the grant of this right of entry by Owner to Hennessey Group.
5. Prior to the expiration of this right of entry as set forth in paragraph 2 above,
Hennessey Group shall cause the Property to be restored to its former condition.
Hennessey Group shall conduct its work on the Property in a manner so as not to
unreasonably interfere with the use of the Property by Owner. It is agreed that
Hennessey Group shall bear the cost for any actual damage to and/or substantial
interference with the possession and us of the Property. Hennessey Group agrees
to protect, defend, hold harmless and indemnify Owner from such costs, including all
costs and reasonable attorney's fees in providing the defense to any claim arising
therefrom.
7. Hennessey Group will provide to Owner copies of all reports and findings obtained
from the soil samplings and tests conducted.
IN WITNESS WHEREOF, said parties have executed this Right of Entry the day and
year first above written.
APPROVED AS TO FORM:
By:
/.4 ter ACItA,
George Eiser, III
City/CDC Attorney
COMMUNITY DEVELOPMENT
COMMISSION
OF THE CITY OF NATIONAL CITY
George H. aters, Chairman
HENNESSEY GROUP
By:
aePJ.. Hennessey
RIGHT OF ENTRY
Project: Hennessey
Parce1:555-054-03, 07, 08, 0910,11
Grantor: CDC
Hennessey Group
Attn: Michael Hennessey
17300 17th Street, Suite J-251
Tustin, CA 92780
1. Permission is hereby granted by the Community Development Commission of the
City of National City (CDC) herein after referred to as "Owner" to Hennessey
Group, its agents, contractors, potential tenants to enter onto the Property for the
purpose of performing certain activities described more particularly as: investigate
and collect samples by drilling various holes for the purpose of soil testing and
sampling, land surveying, and any other test or study that may be necessary, and
replace with uncontaminated soil or granular betonite, accomplishing all necessary
incidents thereto.
2. The permission shall remain in effect for a period of 180 working days after this
Right of Entry is signed, or until completion of the work by Hennessey Group,
whichever occurs first. Hennessey Group shall provide to the Owner written notice
of commencement of work.
3. Hennessey Group, and its agents and contractors, shall keep the Property free
from all encumbrances and/or liens including all costs and attorney's fees in
defending any claim or liability in anyway connected with Hennessey Group (or
Hennessey Group's contractor or subcontractor) failure to pay any person(s)
referred to in Section 3181 of the California Civil Code which may be instituted or
filed against the Property.
4. Hennessey Group hereby releases and agrees to protect, defend, hold harmless
and indemnify Owner from and against all demands, claims, injury, liability, loss,
damage, cost and expense, however same may be caused, including all costs and
reasonable attorney's fees in providing the defense to any claim arising therefrom,
for any loss of or damage to property (real and/or personal), for personal injury to or
death of any person or persons arising out of or occurring by reason of, or anyway
connected with the grant of this right of entry by Owner to Hennessey Group.
5. Prior to the expiration of this right of entry as set forth in paragraph 2 above,
Hennessey Group shall cause the Property to be restored to its former condition.
6. Hennessey Group shall conduct its work on the Property in a manner so as not to
unreasonably interfere with the use of the Property by Owner. It is agreed that
Hennessey Group shall bear the cost for any actual damage to and/or substantial
interference with the possession and use of the Property. Hennessey Group
agrees to protect, defend, hold harmless and indemnify Owner from such costs,
including all costs and reasonable attorney's fees in providing the defense to any
claim arising therefrom.
7. Hennessey Group will provide to Owner copies of all reports and findings obtained
from the soil samplings and tests conducted.
8. This Right of Entry shall constitute a license granted by Owner revocable in Owner's
sole discretion.
9. Hennessey Group or their agents, contractors, potential tenants, at its sole cost
and expense, shall purchase and maintain while performing work on the site, the
following insurance policy:
a. Comprehensive general liability insurance, with minimum limits of $1,000,000
combined single limit per occurrence, covering all bodily injury and property
damage arising out of its operation under this Agreement.
b. The aforesaid policy shall constitute primary insurance as to Owner, its officers,
employees, and volunteers, so that any other policies held by Owner shall not
contribute to any loss under said insurance. Said policy shall provide for thirty
(30) days prior written notice to Owner of cancellation or material change.
c. Said policy shall name the CDC and its officers, agents and employees as
additional insureds.
d. Insurance shall be written with only California admitted companies which hold a
current policy holder's alphabetic and financial size category rating of not less
than a VIII according to the current Best's Key Rating Guide, or a company equal
financial stability that is approved by the Owner's Risk Manager.
e. This Agreement shall not take effect until certificate(s) or other sufficient proof
that these insurance provisions have been complied with, are filed with and
approved by Owner's Risk Manager or Legal Counsel.
IN WITNESS WHEREOF, said parties have executed this 16th day of February, 2001.
APPROVED AS TO FORM:
By:
George Eiser, III
City/CDC Attorney
COMMUNITY DEVELOPMENT
COMMISSION
OF THE CITY OF NATIONAL CITY
By:
George H. aters, Chairman
HENNESSEY GROUP
By:
Mic(ael J. Hennessey