HomeMy WebLinkAboutAMCAL Multi Housing Inc. -Ventura and Seventh mixed use project AMCAL Multi Housing Inc Exclusive Negotiation AgreementEXCLUSIVE NEGOTIATION AGREEMENT
Ventura and Seventh Mixed Use Project
This EXCLUSIVE NEGOTIATION AGREEMENT (this "ENA") is dated as of
CI+AorwE and Is entered between the REDEVELOPMENT
¢o AG�OF TH"SOF FRESNO, a public body, corporate and polNc, organized
dip and existing under the laws of the State of California, ("Agency"), the CITY OF
yo FRESNO, a municipal corporation ("Cdy"), and AMCAL MULTI -HOUSING, INC., a
California corporation (°Developer'), on the terms, and subject to the conditions, set
& forth below. The Agency, City and Developer are sometimes referred herein collectively
as the "Parties," and either individually as a "Party."
RECITALS
A. The Agency and City desire to encourage and effectuate the
redevelopment of certain parcels of real property, comprising a total of approximately
3.40+1- acres (collectively, the "Site"), on the south side of Ventura Street between
Seventh and Eighth Streets in the City of Fresno (the "Sde"). The Site is depicted on
the "Study Area Map," attached to and incorporated in this Agreement as Exhibit A.
B. A Portion of Me Site, as designated on Exhibit A, lies within the Southeast
Fresno Revitalization Project Area (the "Project Area"), and is subject to the Project
Area's governing redevelopment plan (the "Redevelopment Pian"). The remaining
period of the Site is owned by the City and consists of 3 parcels, as designated on
Exhibit A, and is rot presently within the boundaries of the Project Area.
C. The parcels comprising the Site are owned by the Agency and City.
D. To the extent provided in or allowed by the Law including Cal. H$S.C.
Sections 33334.2 and 33449, as provided byjaint resolutions of the Fresno City Council
and the Agency, findings and determinations pursuant to Health and Safety Code
Section 3333vtZ(g), the Plan and limited to the terms and conditions therein, the
Agency may make improvements upon and/or construct and improve structures in order
to provide housing for persons and families of low- to moderate -income, including
related on-site and off-site improvements, by variously (1) allowing the use of Housing
Set Aside Funds outside the Airport Area Revitalization, Central Business District,
Central City Commercial Revitalization, Chinatown Expanded, Convention Center,
Freeway 99 -Golden Stale Boulevard Corridor, FruitrChuni Mariposa, Reeding
Business Park, South Fresno Industrial Revitalization, South Van Nees Industrial,
Southeast Fresno Revitalization, West Fresno 1, West Fresno II, West Fresno 111,
redevelopment plans, (2) restricting the use of the Housing Set Aside Funds to certain
of the Community Development Block Grant eligible areas of the City, (3) placing a
priority on the use of the Housing Set Aside Funds from certain Project Areas to be
used either within or adjacent to the Central Area or adjacent to certain Project Areas.
E. The Developer proposes to develop the Site as a mixed use development
comprised of senior affordable rental housing and commemiagretall that will meet the
needs of the area's diverse population, and to negotiate with the Agency and City the
terms of a Disposition and Development Agreement and HOME Program Agreement
(the "DDA HOME Agreement") to develop and operate the Project on the Site.
F. The City is a recipient of HOME Investment Partnerships Program
(hereinafter referred to as "HOME Program") funding from the U.S. Department of
Housing and Urban Development (hereinafter referred to as "HUD"), under the Title II of
the Cranston -Gonzalez National Affordable Housing Act of 1990, as amended
(hereinafter referred! to as the "ACT") for eligible activities further establishing the
national objectives to benefit its low- to nwderate-Inceme residents, in accordance with
he 2006-2010 Consolidated! Plan and Annual Action Plan, to increase, improve, and
preserve the community's supply of low and moderate Income housing available at
affordable housing cost to persons and families of low -to moderate-incorx+.
G. Subject to the Agency compliance with Community Redevelopment Law
("CRL"), the Parties intend to negotiate mutually acceptable terms and conditions in the
DDA that will define the Parties' rights, obligations and Participation in developing and
operating the Project on the Site.
H. On April 21, 2010, the Housing and Community Development Commission
of the City of Fresno reviewed the Proposed development and recommended it for
approval. On April 22, 2010, the City Council and Agency Board In a Joint Meeting
approved the DDA/HOME Agreement.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and further
consideration as is hereby acknowledged, and subject to the terms and conditions and
provisions hereof, the Parties agree as follows:
1. Exclusive Good Faith Negotiations. The Pates, during the Negotiation Period
defined in Section 3 below, and only for so long as the Developer timely meets its
obligations under this ENA, including without limitation the Performance Schedule in
Exhibit "B shall negotiate exclusively and in good faith regarding the proposed
development and operation of the Project on the Site and the terms of the ENA. Gaal
faith negotiations shall include, without limitation, attending scheduled meetings,
trading staff and consultants to cooperate with the other Party to the extent reasonably
practicable and necessary to negotiations, providing information reasonably available to
the Party and necessary to negotiations, and promptly reviewing and returning any
comments on correspondence, reports, agreements or other documents received from
the other Party.
2. Development Concept/Scope. The negotiations under this ENA will be based on
a Development concept including components described in Recitals "D" and "F" above.
3. Negotiation Period. The Parties will negotiate for 12 months (365 calendar days)
from the date that the Agency and City execute this Agreement (the "Negotiation
Period"), unless negotiations are terminated sooner as provided herein. When the
Negotiation Penod expires, this Agreement shall automatically terminate unless either.
(a) (I) before expiration of the Negotiation Period, the Developer shall prepare
and deliver a status report to the Agencys Executive Director, for submittal to the
Agency's Board of Directors (the "Agency Board") and the City Council (the "Council"),
(A) demonstrating to the Executive Directors satisfaction Nat the Developer is then in
material compliance with this Agreement, and that the Developer has made and is then
making good faith efforts to timely complete all its obligations under the Performance
Schedule, (B) explaining why the Developer has been unable to complete its obligations
under the Performance Schedule, despite each goad faith efforts, and (C) containing a
proposed amended Performance Schedule, (it) the Agency Board and City Council
approve the extension and amended Performance Schedule, and (iii) the Developer and
the Agency and the City execute an amendment to this Agreement to implement
extending the Negotiation Period and amending the Performance Schedule; or
(b) (i) before expiration of the Negotiation Period, the Developer and the Agency
Executive Director and the City Planning and Development Directoddesignee have
submitted proposed DDAHOME Agreement terms and a Project scope, sufficient to
begin a National Environmental Policy Act ("NEPA") and California Environmental
Quality Ad ("CEQA") environmental review to the Agency Board and the Council, (it) the
Agency Board and the Council directed staff to negotiate the final DDAtHOME
Agreement. to take all steps necessary to comply with NEPA and CEQA and to prepare
and process any plan amendments, (iii) and the Agency Board and City Council extend
the Negotiation Period to the later of one year from the date of direction or 30 days after
completing the environmental assessment process that complies with NEPA and
CIRCA.
(c) If, on expiration of the Negotiation Period, including any extensions, the
Agency Boats and the Council have not made the reoulsite findings and approved a
DDA/HOME Agreement that the Parties timely execute, then this ENA shall
automatically terminate unless the Council and Agency Board have approved, and the
Developer and the Agency and City have entered, a wdgem extension ENA that Includes
an updated Performance Schedule. On termination of this ENA, the Agency and City
thereafter may deal with the Sire and negotiate with others concerning the Site as the
Agency, in its sots and absolute discretion, may determine.
Notwithstanding the foregoing, any Party may terminate this ENA for cause in the
event another Party is in default of this Agreement for failure to negotiate in good faith.
Any substantive breach of this ENA shall constitute a failure to negotiate in good faith.
No Party shall terminate Nis ENA unless the Party seeking to terminate has first
provided written notice of its intent to terminate the ENA to the other Parties, specifying
the cause, and the non-performing party(ies) fail(s) to cure the default or other cause
within thirty (30) days after receipt of such notice. The Agency/City or Developer may
terminate this Agreement for cause upon thirty (30) days written notice If the terminating
parties determines, in Its sole discretion, that the development of the she is financially
infeasible. In the event this ENA Is terminated, in accordance with this paragraph, no
Party shall have any further rights, obligations, or liability to the other Party as the result
of this ENA.
6. Performance Schedule. In addition to their respective obligations specified in this
ENA, the Developer and the Agency and the City shall timely complete each of their
respective activities or tasks set forth in the Performance Schedule, attached to and
incorporated in this ENA as Exhibit "S".
5. Meetings. Within 10 days after the Effective Date, the Parties shall jointly prepare
a meeting schedule Nat anticipates accomplishing the timely performance of those
activities and tasks set forth in the Performance Schedule (Exhibit `S"). Agency,
Developer and City shelf, as needed, shall meet or hold a conference call on average
every two weeks to discuss the status of the activities and tasks in the Performance
Schedule, the accomplishment of such activities and tasks and other matters related to
the negotiations and the Project.
6. Proposed Terme and Conditions for DDAIHOME Agreement. During me
Negotiation Period, Including any extensions, the Parties shall negotiate the proposed
terms for the DDA/HOME Agreement. The DDA/HOME Agreement will detail the
Parties respective rights and obligations for developing and operating the Project on the
Site, and shoukt include at a minimum, without limitation, terms and conditions on the
following:
6.1. Projectdesign;
(i The Developers participating add cooperating with the Agency and City in
planning the development of the Site, subject to compliance with all
applicable ordinances, requirements, rules, regulations and policies of the
Agency, the City, and the U.S. Department of Housing and urban
Development (HUD), including, but not limited to, applicable zoning
ordinances, requirements, rules, regulations, and policies, as thorn time b
time amended;
6.3. The Developer's sole obligation and cost for determining whether the Site
or any pad thereof Is suitable for the Project, including preliminary
investigations of surface and subsurface conditions (including, without
limitation, environmental contamination), that the Developer may deem
reasonably necessary or appropriate for determining suifabiliry;
6.4. Agency and City obligations and powers, if any, to obtain for the
Developer access to properties in the Site and the right to perform due
diligence investigation and tests;
6.5. The covenants, conditions and restrictions on the Site and the Project, or
any part of either, including without limitation use, maintenance,
construction, powers of termination, reentry and reveries, and the rights
and restrictions of tenants and/or owners;
6.6. Signage for the Project;
6r'. Economic development standards for the Project;
6.6. Restrictions on the Developers rights to assign or otherwise transfer any
rights and obligations under the DDA/HOME Agreement or any property
that the Agency/City my convey to the Developer;
6.8. The Developer's completion guaranty for its obligations under the
DDAlHOME Agreement;
6.10. City insurance requirements and Developer's Indemnification of the
Agency, the City and the representatives, officers and employees of the
Agency and the City regarding the Site, the Project and the Developer's
obligations and performance under the DDA/HOME Agreement;
6.11. Agency/City obligations, If any, relating to the Project and its development;
6.12. The purchase price and/or other consideration to be paid by the
Developer for the Site. Such purchase price and/or other consideration
will be based on such factors as market conditions, density of
development, costs of development, risks of the Agency and City, risks of
the Developer, estimated or actual Developer profit, public purpose and/or
fair market or reuse value for uses permitted to be developed and financial
requirements of the Agency/City, and will be subject to approval by the
Agency and the Council after a public hearing as required! by law.
6.13- Responsibilities for communication with media outlets and coordination of
ground breaking and grand opening activities.
6.14. Labor compliance
6.15, Community outreach
6.16. Rental restrictions required by the City, Agency, and HDD.
6AT Subordination of City and Agencys normal restriction covenants, density
bonus agreements, deeds of (rust, etc. to (conventional) senior
construction and permanent lenders.
The terms and conditions set forth in this Section 6 are representative and not
exhaustive. The Parties do not intend for this ENA W create any legally binding
obligations regarding the DDA/HOME Agreement. Execution of this ENA by the
Agency/City is merely an agreement to enter into a period of exclusive negotiations
according W the terms hereof. For any DDA/HOME Agreement or its terms to be
enforceable. It must be contain! In a final writing, must be approved by the Agency
Board and the City Counal after complying with all applicable laws, and most be
executed by and delivered to each Party.
7. Developer's Principals and Legal Status. The Developer shall disclose such
Information to the Agency/City regaMing its principals, legal status, and financial
capabilities and project experience as the Agency/City may reasonably request. At a
minimum, the Developer shall disclose the following: (a) its principals, shareholders,
members and/or partners, (b) its directors, officers. and key employees, (c) its parent
company, subsidiaries and affiliates, if any, and (d) all other pertinent information
concerning the Developer and its legal structure.
Without limiting the generality of the preceding paragraph, the Developer represents the
following concerning the Developer as of the Effective Date:
7.1 The Developer is a California Corporation.
7.2 The principal office of the Developer is:
30141 Agoura Road, Suite 100
Agoura Hills, CA 91301
7.3 The principal members of the Developer are
Percy Vaz, Chief Executive Officer
7.4 The Developers architect will be:
The Vincent Company, Architects, Inc.,
1500 W. Shaw Avenue, Suite 304
Fresno, CA 93711.
The Developer will be solely responsible for selecting/retaining/paying all
additional design consultants, which may include: structural engineers, mechanical
engineers, electrical engineers, civil engineers, landscape archkect, etc.
The Developer will give the Agency/City at least 10 daysprior notice of any
change in the above information during the tern of this ENA. Any change In the
principal members. managers, consultants, or professionals of the Developer will be
subject to the written approval of the Agency/Cily
8. Financial and Other Information. The Developer shall promptly provide the
Agency/City any financial information that the Agency/City may reasonably request,
including without limitation a true, coned and complete copy of its =at recent CPA
reviewed financial statement. The Developer shall promptly provide the Agency/City
with other Information, data, and commitments that the Agency/City may reasonably
request to ascertain the Developers financial and performance capabilities to
expeditiously complete the Project on the Site. In any event, no later than 180 days
before end of the Negotiation Period, including any extension thereof, the Developer
shall submit to the. Agency/City, in reasonable detall. the Developer's proposed
construction financing for development of the Project and proposed permanent
financing for Ne Project.
The Developer will specifically identify any such information that is proprietary.
To the extent permitted by law, the Agency/City will use best efforts to maintain the
confidentiality of such Developer -identified information consistent with controlling law
and order(s) of court(s) of competent jurisdiction, but will have no liability it. despite Its
best efforts, any Developer -Identified information is disclosed. Notwithstanding the
preceding sentence, the Agency/City may disclose such Developer-dentified
information to City or Agency representatives, consultants, employees and officers in
connection with the Project, and the Agency or City shall disclose such Information as
any court or other authoritative body may direct or order.
g. Assignment Prohibited. The Developer may not assign or otherwise transfer any
of its rights or obligations under this ENA without the express wdflen consent of the
Agency and City. The Agency and City may give or deny consent in its sole and
absolute discretion. Notwithstanding the foregoing, with written notice to the Agency
Executive Director, Housing Manager and with Agency Board and City Council
knowledge and approval, the Developer may join in and associate with another entity in
a joint venture, partnership or other legal arrangement for the purpose of developing the
Site, provided (i) the Developer retains management and central of such entity, (it) such
entity has assets, financial capability and development experience acceptable to the
Agency/City, (iii) the Develcper first submits to the Agency Board and City Council a
report and substantiating evidence of the Developer's majonty control and the entity's
assets, financial capability and development experience, and (iv) me Developer remains
fully responsible to the Agency/City for performance of all obligations under this
Agreement.
Upon any permitted assignment or transfer hereunder, the Developer and the
assignee/transferee shall execute and deliver to the Agency/City such documentation
as the Agency/City may require. When the AgemcylCity accepts the assignment or
transfer and receives all such documentation, the assigneeltrensferee shall thereafter
be the'Developer' under this Agreement for all purposes
10. Plans, Reports, Studies and Investigations.
10.1. Coples to Agency. On request by the Agency or City. and at no cost to
the Agency or City, the Developer shall promptly give the Agency or City
copies of all plans, reports, studies and investigations (collectively, the
"Plans," individually a 'Plan") respecting the Site and Me Project that the
Developer prepares or causes to be prepared. Plans may include, without
limitation, marketing studies or plans, designs, drawings, specifications,
materials, compilations, documents, instruments, models, source or object
codes and other information disclosed or submitted, in writing or by any
other medium or media. For all parts of the Project that are subject to a
DDA/HOME Agreement with Me Developer, the Developer shall
indemnity, defend, and hold the Agency, the City and Agency and City
representatives, officials, officers, and employees harmless from any
losses, liabilities, claims, causes of action, injuries or expenses including,
without limitation, reasonable attomeys fees and costa, allsing from,
relating to or In any way connected with the Plans, or the preparation
thereof, or the use thereof without modificafian, for the Project. This
Indemnity shall not apply where, as described in paragraph 10.3, the
Agency/City or a transferee thereof uses a Plan, in any form, for another
Protect, or for Nis Project with a developer other than the Developer.
10.2. Propiletary Rights. If this ENA terminates for any reason without an
executed DDNHOME Agreement with the Developer, the Agency/City
may retain all duplicate copies of Plans in its possession and may demand
duplicate copies of other Plans completed or partially completed and not
yet delivered. On such Agency or City demand, the Developer shall
deliver to the Agency/City such duplicate copies of all Plans not yet in
Agency/City possession, including, without limitation, partially completed
Plans. If, at the time of the Agency/City demand, the AgencylCity wants
any partially, completed Plan to be completed, the AgencylCity shall pay
the costs to complete such Plan but not the costs that the Developer
already owes or has already Inverted or that would be payable whether or
not the Plan is completed). Upon completion, the Developer shall deliver
the original of such completed Plan to the Agency/City and shall transfer
to the Agency/City, without cost to the AgencylCity, all right, title, Interest
and ownership rights Mat the Developer has or may have to such
completed Plan, if any, and will notify the AgencylCity of known third party
rights, IF any. In the completed Plan such as copyright, trademark or other
use limitations retalned by persons other than the Developer. On request
by the AgencylCity, the Developer, at no cost to the Developer, will
cooperate with and assist the Agency/City to obtain any third party rights
that may be necessary for the Agency/City to use the completed Plan.
103. Use of Plans. All duplicate copies of Plans, and all original Plans
completed at AgencylCity expense, retained by or delivered to Me
Agency/City, pursuant to Paragraph 10.2 will belong to the Agency and
City and (subject to acquiring any third party rights in any completed
original Plan) may be used by the Agency/City for any purpose as It may
deem advisable, including but not limited to completion of the Project or
other project(s) an the Site If this Agreement Is terminated as a result of
the Developers default. Any Agency or City use or Agency or City
transferee's use of any duplicate copy of a Plan in completed or
uncompleted form or any original Plan completed at Agency/City expense
for other projects, or for this Project with a developer other than the
Developer, will be at the Agency/City's risk and without liability or legal
exposure to the Developer, Including actions from third parties. This
section only refers to the use of plans by the CRY/Agency or a third party
pursuant to Paragraph 10.2 of this Agreement, arising from a defau8 of
this Agreement, and done not refer to any use of plans that would occur
after the adoption of a DDA with the Developer or during the actual
contraction of the Project; such use of plans or completion of a partially
constructed Pmject would be subject to terms contained in the DDA and Is
beyond the scope of this Agreement.
11. Additional Developer ResponalWlithes. Without limiting any other provision of
this ENA or the Developer tasks and actions required In the Performance Schedule. the
Developer shall, during the Negotiation Period, including any extension thereof, do the
following at its sole cost and expense In furtherance of the negotiation process:
11.1. Meetings. The Developer shall meet with Agency and City
representatives to review and understand the planning and design criteria
applicable to the Site, and developing Site plan alternatives and physical
design concepts In accordance with the Performance Schedule (Exhibit
B").
11.2. Repots. Normally but not more frequently than monthly, but at any time
requested by the Agency Boandl Council, Developer shall make oral
and wrigen progress reports advising the Agency and City and/or its staff
on all progress being made on tasks and other activities undertaken by
the Developer pursuant to this ENA and/or the Developers proposed
methods of financing acquisition of the Site and development of the
Pal
113. Financial Status. On request by the Agency and City from time to time,
the Developer shall demonstrate tts financial capacity and ability W timely
and satisfactorily perform Its obligations under this ENA.
11.4. Development Team. Promptly on any change in a development team
member that Developer has Ideal in Section 8 above or pursuant to
Exhibit Sr T the Developer shall notify the Agency and City in wilting and
identify the new team member.
11.5. Rights of Entry. Before entering upon any property within the Site,
whether for site assessment or other due diligence, the Developer shall
first obtain a right of entry from the City/Agency and any tenant or
occupant. The Developer may ask the Agency and City to use best efforts
to help the Developer obtain a night of entry upon private property. The
right of entry shall be In form and content reasonably acceptable to the
AgencylCity including any required insurancelindemndy previsions, and
any private property owner.
11.6. Professional Services Costs; Deposit. It Is the understanding of the
Parties that the Developer shall be responsible for hiring and paying all
consultants on the Project related to design, engineering, planning,
structural analysis, historic preservation, economic feasibility and
absorption, the Low Income Housing Tax Credit application process,
marketing, community outreach, and property management.
Notwithstanding the foregoing, unless otherwise agreed In writing, and
except for Agency/City costs for any redevelopment plan amendments,
the Developer shall be solely responsible for, and shall pay or reimburse
all amounts payable under any agreement, for third party professional or
consulting services that the Agenq/City enters relating to the Project
("Consurant/Services Agreement") Including, without limitation, its own
building and/or historic surveys. Before the Agency or City enters into any
Consultant/Services Agreement, the Developer, as set forth In the
Performance Schedule, shall initially cowed with the Agency/Cry cash, or
cash equivalent acceptable to the Agency/City, equal to 50 percent of the
estimatetl costs or proposed compensation under the Consultant/Services
Agreement. The Agency or Cry will place each deposit in an Interest
bearing account. The Developers failure to deliver a deposit, or to
maintain the deposit as the Agency and City may determine, shall be a
default of this Agreement.
Before entering a Consultant/Services Agreement, the coal of
which is the responsibility of the Developer, the Agency and City will notify
the Developer of its Intent to enter the agreement for the Developers
account, with the name of the intended consultant/servlces provider and a
mpy of the proposed amps of work and compensation. The Developer
will be entitled to object to only III the proposed compensation amount,
and (ii) those factors in the scope of work that affect the amount of
compensation (collectively, Me'Compensalionl Factors'). The Developer
has no right to object to or approve other previsions of the
Consuranl/Services Agreement, including without limitation the selection
of the particular consultantmervices provider. Not later than 10 business
days after delivery, the Developer will entry the Agency and City in writing
of any objections to the Compensation! Factors. The Developers failure
to deliver written objection will be daemon approval of the Compensationl
Factors. If the Developer delivers any objection to the Compensation/
Factors, the Parties will In good faith negotiate for not more than 10
business tlays. Unless otherwise agreed in writing, If the Parties do not
resolve any such objections within the 10 businessdays, either Party may
terminate this Agreement by written norms to the other and no Parties
shall have any further rights, obligations, or liability to the other Party as
the result of this Agreement, other than financial obligations then due and
owing.
The Developer authorizes the Agency and City to use or draw on
the deposit to pay the actual amounts payable under any
Consultant/Services Agreement. The Developer shall maintain the
deposit so that funds are available for the Agency and City to timely pay
amounts under any ConsullantlServices Agreement as such amounts
become due and payable. The Developer shall supplement the deposit
within 10 business days after receiving a written request from the Agency
and City specifying the amount needed under Consukant(Services
Agreements.
At expiration of the Negotiation Period, including any extension thereof,
or any earlier termination of this Agreement, tl Me Developer has
continued to negotiate in good faith, within 10 days after receiving the
Developer's written demand, the Agency and City shall return to the
Developer any remaining unexpended and unencumbered deposit
amount, including any accrued and unexpended interest, less any costs
owing under outstanding Consuitant/Services Agmement(s).
The term "business day' as used in this ENA means any day other
than (i) a Saturday or Sunday (it) a day on which commercial banks in
California are authorized or required by law to close, or (jli) a day on which
the Agency/City is authorized to remain closed. Any other reference to
"day" in this Agreement means a calendar day.
11]. Environmental Reporta/Studles, The Developer shall promptly provide
the Agency and City with copies of any environmental reports and any
other studies which the Developer prepares, causes to be prepared or
otherwise obtains with respect to the Site or the Project.
11.8. Venture and Seventh Footprint As additional consideration for the
exclusive negotiating rights provided under this ENA, even If the Parties
do not successfully negotiate and enter into a ODAMOME Agreement In
accordance with this ENA, before the expiration of the. Negotiation Period,
the Developer shall deliver to the Agency/City a conceptual site plan
showing footprints of buildings and facilities for a "Ventura and Seventh"
development proposed by Me Developer for a porion of the Site.
12. Agency and City Responsibilities. In addition M those items designated as
Agency/City Responsibilities In the Performance Schedule (Exhibit "B"), the Agency and
City, during the Negotiation Period, including any extension thereof, in furtherance of
the negotiation process the Agency/Cfty will corporate and assist the Developer, as
needed, In fulfilling Developer obligations under the Performance Schedule.
13. DDA and Compliance with Laws. If the negotiations Mai in a proposed
DDNHOME Agreement, Agency Board and City Council approval thereof may occur
only after compliance with all applicable laws and ordinances Including, without
limitation, the CRL, HUD requirements, and CEOA and NEPA, as applicable. The
DDA/HOME Agreement shall contain by reference the design and site plan of the
Project; such design shall be part of the Project approval and must be approved by the
Agency Board and City Council with the DDA/HOME Agreement. Any DDA/HOME
Agreement shall became effective only If and after the DDA/HOME Agreement has
been considered and approved by the Agency Board and City Council at a public
hearing called for such purpose.
14. NEPA and CEPA. An objective during the Negotiation Period, as provided in the
Performance Schedule, is to establish a Project scope and description sufficient to
include in a NEPA and CEOA review. The Developer shall contact Krazan 8
Associates to revise the initial NEPAICEOA prepared for the acquisition of the property.
The Agency and City will consult with the Developer regarding me cumulative impact,
and on any mitigation issues, mitigation measures and the responsibility therefor.
The Developer shall be solely responsible for the costs of NEPA/CEQA compliance for
the Project. If an Environmental Impact Reports) under CEPA or Environmental
Impact Statement(s) under NEPA is determined to be necessary to the project, the
Developer may determine that the project is financially infeasible under Section 3 of this
Agreement. Alternatively, the Parties may discuss atlematives to laminating the
Agreement based an the cost of an EIR/EIS.
The Developer shall cooperate with the Agency and City and its CEOA
consultant in preparation of the environmental documents by, among other things.
timely supplying necessary technical data and other related Information and/or
development plans concerning the Project.
15. Brokers. Neither the Agency/ City, nor the Developer will be liable for any real
estate commissions, finders fees or brokerage fees arising from, relating to or in any
way connected with the transactions contemplated by this ENA. The Agency/City and
Developer represent and warrant to each other that it has hot engaged any broker.
agent or finder in connection with such transactions. The Agency/City and Developer
shall indemnify, defend and hold each other and their representatives, officials,
employees and officers harmless from and against any losses and liabilities, including
without limltation reasonable attorneys' fees, arising from, relating to or in any way
connected with any claim by any broker, agent or finder for any commission, fee or
other compensation in connection with such transactions or any breach of such
representation and warranty by the Agency/City or Developer.
15. Entire Agreement; Attorneys' Fees; Time is of the Essence; Counterparts.
This ENA is the entire ENA agreement as understand by the Parties with respect to the
matters set forth herein. This ENA may be amended only in a writing signed by all
Parties, and approved by the Agency Boats and City Council. If a Party brings an
action or files a proceeding in connection with the enforcement of its respective rights or
as a consequence of any breach by the other Party, then the prevailing Party(ies) in
such action or proceeding shall be entitled to have its reasonable attorneys' fees and
costs and other oulrof-pocket expenditures paid. by the losing Party. Time is of the
essence In this ENA. This ENA is the product of negotiation and all Parties are equally
responsible for authorship of this ENA. Section 1654 of the CaIRomla Civil Code shall
not apply to the interpretation of this Agreement. Each indn dual executing this ENA
represents and warrants they are duly authorized to execute and deliver this ENA on
behalf of the Party named herein and this ENA is binding upon said party in accordance
with its terms. This ENA may be executed in counterparts.
17. Nondiscrimination. The Developer covenants and agrees that there shall be no
discrimination against or segregation of any person or group of persons on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code
(race, color, religion, sex, sexual orientation, marital status, national origin, ancestry,
familial status, source of Income, disability, ancestry, age or any other basis prohibited
by California Civil Code § 51), as those bases are refined in Sections 12926 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code, In the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Site, nor shall the Developer or any person
claiming under or through the Developer establish or permit any such practice or
practices of discrimination or segregation in the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees of the Site.
18. Notices. All notices required or permitted hereunder Shall be delivered in person or
by facsimile, by overnight courier, or by registered or certified mall, Postage prepaid,
return receipt requested, to such Party at its address shown below, or to any other place
designated in writing by such Party:
Agency: Executive Director
Redevelopment Agency of the City of Fresno
2344 Tulare Street, Suite 200
Fresno. CA 93721
City: Manager
Housing and Community Development Division
City of Fresno
2600 Fresno St., Room 3070
Fresno, CA 93721-3605
Developer. Arjun Nagarkattl, President
AMCAL Mufti -Housing, Inc.
30141 Agoura Road, Suite 100
Agoura Hills, CA 91301
With a copy to: Kyle Amd6 Esq.
191
Bocarsley, Emden, Cowan, Ear l & Arndt, LLP
633 West Fifth Street, 70" Floor
Los Angeles, CA 90071
Notice shall he deemed received on delivery, M delivered personally or by
facsimile; one day after delivery to the courier if delivered by couner, or three days after
deposit into the United States mail if delivered by registered or certified mail.
19. Agreement Limitations. The Agency and City are not, by entering this ENA,
committing themselves to or agreeing to undertake: (a) land acquisition, (b) land
dlspasltien to the Developer, (c) funding commitments, or (d) any other act or activities
requiring the subsequent independent exercise of discretion by the Agency, the City or
any agency or department thereof. This ENA does not constitute an agreement by the
Agency or the City to exercise control over the Project within the Site. This ENA is
merely an agreement to enter exclusive negotiations with respect to the Site according
to the terms hereof, with all final discretion and approval remaining with the Agency
Board and the City Council as to any DDAIHOME Agreement and all proceedings and
decisions In connection therewith.
20. Miscellaneous provisions.
20.1. Governing Law and Venue. California law govems this ENA. The
provisions of this ENA will be construed, and the noble and duties
(procedural and substantive) of the Parties hereunder will be determined,
according to California laws. Venue for filing any action to enforce or
interpret this Agreement will be Fresno, California.
20.2. Headings. The section headings in this ENA are for convenience only;
they do not explain, modify or add to the meaning of this ENA.
20.3. Severabillty. The provisions of this ENA are severable. The invalidity or
unenforceability of any provision in this ENA will not affect the other
provisions.
204. Interpretation. This ENA Is the result of the combined efforts of the
Parties. If any provision is found ambiguous, the ambiguity will not be
resolved by construing this ENA in favor of or against either Party, but by
construing the terms according to their generally accepted meaning.
20.5. Precedence of Documents. If the body of Nis ENA and any Exhibit or
attachment conflict, the terms In the body of this ENA will control. Any
lens or cnntlRion in any Exhibit or attachment that purports to modify the
allocation of risk between Ne Parties is void,
20.6. Successors and Assigns. Subject to the limitation on assignment
in Section 9, this ENA is binding on and will inure to the benefit of the
Parties and their respective successors antl assigns.
14
207 Counterparts. The Parties may sign this ENA in counterparts, each of
which when signed and delivered will be deemed an original, and all of
which together will constitute one instrument
20.8. Effective Date. The Effective Date of this ENA shall be the date that all
Parties have duly executed this ENA, following Agency and City Council
approval.
20.9: Independent Capacity. The Agency/City shall not become or the deemed
a partner or joint venturer with Developer or associate in any such
relations with Developer by reason of the provisions of this ENA.
Developer shall not for any purpose be considered an agent, officer or
employee of the Agency/City.
20.10. Conflict of Interest. No officer or employee of the Agency/City
shall hold any interest in this Agreement (California Government Code
Section 1090.)
Remainder of Page Left Blank Intentionally;
Signatures on Next Page.
15
Each Party acknowledges that this Agreement has been executed by its duly authorized
representative(s) on the date.
AGENCY
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO
A public body, corporate and politic
By:
Tare
Dated: s+- 1,3,2010
Cm
CITY OF FRESNO
A Califor uoration
By:
Nle:
Dated: ,2010
DEVELOPER:
AMCAL ulti-Housing, Inc. A Calrfomia Corporation
By:
Title: 51
Dated: 0Ueoail- 13 2010
L
ATTEST: APPROVED AS TO FORM:
REBECCA KLISCH JAMES C. SANCHEZ
City Clerk and Ex ORicio Clark of the Agency City Attorney and Ex Curcio Attorney
eyF117//C By:
Deputy Deputy 'FQW 1<')i
Attachments.
Exhibit Al Study Area Map
Exhibit B: Performance Schedule
16
Exhibit A
Study Area Map
RDA
Parcel
City
Parcels
JI e nwar
TI
E
E Ti
EALTA AVE
17
Exhibit B
Performance Schedule
Developer Responsibilities. During the Negotiation Period, and wihout limiting any
other provision of this ENA, the Developer shall complete the following tasks, at its sole
cast and expense, in furtherance of the negotiation process, by the limes stated. The
times staled shall con from the Effective Date of this ENA. If the Parties enter an
agreement extending fire Negotiation Period and updating this Performance Schedule,
the amendment and updated Performance Schedule will supersede this Performance
Schedule.
1. To the extent not already Identified in Section 7, identify in writing to the Agency and
City the names of the Developers decision makers and its lead negotiators, fire
decision-making authonly for each such person and the decisions that must be
made by the Developers governing body; the names of its design consultants,
market consultants, architect, engineer, financial consullant (if any), legal counsel,
building contractor, building management company and any other development
Were members. (Days 1 - 30)
2. Prepare and submit a phasing, ownership, and operations plan for all phases. (Days
1-30)
3. Prepare, for Agency/City staff review and comment, a conceptual development plan
for the Site, indicating general land use designabons, Intensities and similar
information, sufficient to calamine the entitlement track necessary. (Days1-30)
4. Prepare a schematic plan to include number, type and proposed location of
residential units, square footage and proposed location of the retail, resident
services, site amenities, and number, type and proposed location of parking spaces.
(Days 1 - 30)
5. Prepare and submit all necessary entRlement applications defined! in the process per
Agency/City responsibillry In Section 4 above. (Days 120-180)
6. Prepare a Project economic model to include development costs, Income,
supportable investment and public revenues expected to be generated by the
Project. It is understood that the Developer will seek a welfare tax exemption. The
ecorwmic model will be presented In sufticiem detail to enable the Agency/Cry to
estimate all public revenues to be generated by the Pmxct and evaluate the
economic feasibility of the proposed Prejem. (Days 90-120)
]. Submit a financial plan for the Project, including a statement of overall construction
casts, source and availability of equity capital. construction and permanent financing,
and the scope and type of proposed Agency/City investment the Developer deems
necessary. (Days 120 - 150)
8. Prepare and submit to the Agency/City evidence of market support for the Project
components. Such evidence may include a market study, letters of tenant interest or
other market data to allow Me Agency/City to reach conclusions as to the market
interest for the Project (Days 120-150)
9. Submit to the Agency/City proposed DOA/HOME Agreement deal points, a general
development plan, the economic parameters of the development, and a Project
scope description, including any proposed phases thereof. The proposed
DDA/HOME Agreement deal points shall be consistent with the minimum
DDA/HOEM Agreement deal points set forth in the ENA, and shall include a Project
development and implementation schedule. (Days 150-180)
10. Subject to Its objection rights, Deposit 50h percent of the estimated costs for
each Consultant/Services Agreement before the Agency/City enters the
Agreement(s), fund entitlement application fees, permits and CEOA document fees
to proceed with finalizing the DDA/HOME Agreement and proceeding with
entitlement antl CERA review of the Project. (Within Negotiation Period, including
any extension)
11. Complete the revision of NEPA/CEOA. (Days 120-150)
12. Complete negotiation of DDA/HOME Agreement. (Within Negotiation Period,
Including any extension)
19
Agency and City Responsibilities. During the Negotiation Period, and without limiting
any other provision of this ENA, the Agency and City shall complete and/or work to
complete the following tasks, all in furtherance of the negotiafion proccess, by the times
stated. Unless otherwise indicated, all costs shall be the responsibility of the Developer.
The times stated shall run from the Effective Date of this ENA If the Agency/City and
the Developer enter an agreement extending the National Period and updating the
Performance Schedule, the updated Performance Schedule shall supersede this
Performance Schedule.
1. Provide the Developer with an inventory of existing public infrastructure and its
locations, condition and capacity (Agency/City cost, unless otherwise agreed in
writing), (Days 1 -45)
Z Provide, or assist the Developer in obtaining, available and existing public
records such as, plans, studies, reports and documents relating to the Site. Such
information may include, without limitation, EIRs, the General Plan, utility plans,
architectural historic surveys, social plana, soils reports, zoning, the
Redevelopment Plan, owner participation rules, any Agency adopted policies,
and other Information that may assist the Developer In evaluating the Site and
the Project. (Days 1 -45)
3. Conduct a review of the Redevelopment Plan to determine possible
amendments, e.g., land use and land assembly, timing to adopt any
amendments, and financial impacts thereof relative to the proposed Project
(Agency cast). (Days 1 - 60)
4. Cooperate with and assist Developer in determining a description and timeline for
the entdlement track likely to be necessary to enable the project to proceed in the
timeliest manner. (Daysi -30)
5. Hire appropriate professional services, as needed, to conduct a complete
building survey of the Site to determine the extent and nature of serous building
and health and safety code violations (at Developer cost under any Consultant
Services Agreement, or shared costs as the Parties may agree in writing). (Days
30-90)
6. Provide final requirements to the Developer as to the rental resirctions required
by the Cityand Agency. (Days -I-60)
7. Cooperate with and assist Developer with any Historical Preservation meetings
or requirements likely to be necessary to enable the project to proceed in the
timeliestmanner. (Daysi-150)
YYI
& If and as directed by the Agency Board and Council, prepare an initial study to
determine the type and scope of environmental assessment necessary for the
Project (at Developer cost under any ConsultznVServices Agreement). (Days 30
-120)
9. Cooperate with and assist Developer in determining the land disposition
schedule and method for the 3 parcels. (30-120)
10. Cooperate with and assist Developer in determining the demolition schedule and
method for the 2 City awned parcels. (30-120)
11. Pay for any redevelopment plan amendments that the Agency may determine
appropriate, solely from annually allocated and available funds. (Following
submission of the DDAIHOME Agreement deal points and other information to
the Council and the Agency Board, and direction to proceed with any such plan
amendments)
MEMO AGENDAREM W. 1:9011 C
REPORT TO THE CITYCOUNCIL BOARD MEETING: VW10
AND REDEVELOPMENT AGENCY BOARD Apq'Invansr
FXECIm�OIRE'CTCR
.,�,n„
DATE: April ffi,2010 r,;q)zz%lo
FROM: MARLENE MURPHEY, Executive Director
SUBJECT: Approve an Exclusive Negowthm Agreement (ENA) between the Redevelopment
Agency d the City of Fresno (the "Agency), the City of Fresno ('City") and AMCAL
Multi -Housing, Inc. a Caldomia corporation (the 'DevelopefL, for a mixed-use
devebpment on 3.40 acres at Ventura Street between 7s and B Streets (470-052-
01, 470-052-02 and 470-052-03), in and adjacent to the Southeast Fresno
Redevelopment Project Area.
EXECUTIVE SUMMARY
Agency and City Housing and Community Development Staff recommend the City Council and
Agency Board approve the attached ENA between the Agency, the City and Developer, fora
mixed-use developmeml on 3.40 acres at Venture Street between r and Fix Streets (470-052-
01, 4701 and 470-052-03), in and adjacent to Me Southeast Fresno Redevelopment
Project Area. Two of the properties comprising the site are a Tomer Fresno Unified School
District maintenance facility of 2.85 acres (4704)52-02) and a singe family home parcel at 3745
E. EI Monte Way of 26 acres (470-052-03) acquired by the City of Fresno in 2007 and 2008.
The Agency acquired the site at the comer nt Ventura and 7e Street (4704152-01) in late 2007.
The RFP was released in January, 2010 and responses were due in March An evaluation
par el of City and Agency housing staff revievved gra five submissions and created a short list of
Mines fins, which they interviewed on March 26 and Menu 29. From that selection process,
staff chose to recommend entering into an ENA wtth AMCAL Multillousing, Inc. of Agoura
Hills.
AMCAL has experience in Fresno, opening the Sandstone ape tments in Southwest Fresno
just over a year ago and starting construction on the 50-und Summer Hill Place project at San
Benito and "B' Street in March, 2010.
BACKGROUND
Venture and Seventh has the potential to become an exemplary model for the creative use of a
mixed residential and commercial development in Southeast Fresno utilizing the site's full
potential. A residential mixed use development containing Mgh-0ensdy senior rental housing
units is envisioned. The commercial street homage portion of the site will enhance the
appearance of Venture Street by providing attractive commercial properties that serve the
surrounding neighborhoods. The site is located between two established residential and
commercial neighborhoods. The VenluraW gs Canyon corridor has been identifietl by the City
as a route for Bus Rapid Transit (BRT), a vital element in the region's transportation
Infrastructure connecting downtown to the outlying parts of the city.
REPORT TO THE CITY COUNCIL AND REDEVELOPMENT AGENCY BOARD
Exclusive Neliadation Agreanera-AMCAL Muat-Housing, Inc
APd122. 2010
Pepe 2
AMCAL's conceptual proposal consists of between 60 to 90 units of senior affordable rental
housing and commercial/retail. A conceptual plan was included with the RFQ response but the
predse unit count and retail square footage shall be determined though the negotiation
process and the Citys entdlamsnl process. It is anticipated that AMCAL will apply for 9% Low
Income Housing Tax Credits to help finance the project, thereby ensuring that all of the units
will be available to households at 60% of median income area median income (AMI) or
below, with some at rents as low as 30% to 40% of AMI.
The City accuiretl its parcels using HOME Program funds, and would ensure affordability
covenants on the HOME -assisted units as well. Further, the HOME Program funds assist with
leverxi of Ne Agency's investment of Low- and Moderate- Income Housing Funds. This
mixed use project adds to the City's and Agency's portfolio of developments and ongoing
efforts to revitalize the neighborhood and builds upon previous revitalization endeavors in the
immediate area. The agreement for the conveyance of the property to AMCAL is anticipated to
be a combined Dispassion & Development Agreement (DDA)/HOME Agreement between the
three parties.
California Redevelopment Law (including Cal HSS. C. Sections 33334.2 and 33449), requires
the Agency to set aside 20% of its tax increment for affordable housing for persons and
families of low- to moderatevncome, including making improvements upon, constructing, or
improving structures in oder to provide housing for persons of lou- or moderateincome or by
constructing related on-site and of -site improvements.
Separately, the Agency is undertaking the demolition of existing structures and clearance of the
project site. The proposed development will help eliminate vacant, blighted parcels along the
Ventura corridor. The design contained in AMCAL's conceptual plan creates a sense of place
and community within the lural neighborhood . The site is located within close proximity to
numerous amenities which makes 4 an ideal location for a residential developmerrt
The residential portion of the project could be gated, with the gates being open during the day
for easy access of resldents and services. The gates will be dosed abler business hours for
added security and will be accessible only to residents by remota control or call box In
addition, access to EI Monte Way (to the soillh) will be timiled to an exit -only gate. This exit -
only design will reduce the amount of traffic onto the existing residential street and
neighborhood.
The project will not only address Vle reed for affordable urban housing, but will also provide
much needed social services and social interaction for its senior reeldenta. A social service
provider, seleeled by AMCAL, will offer a wide variety of programa and services to the
residents. Programs will be offered! based upon surveys of the residents in an effort to rater to
the specific needs of the seniors. Finally, the project will house a prolesslonal on-site property
manager trained in federal Section 42 and HOME Progrem regulations. Strong property
management will enhance and foster the security, appearance and experience of cine residents.
REPORT TO THE CITY COUNCIL AND REDEVELOPMENT AGENCY BOARD
Exclusive Negotietlan Agreement-AMCAL MUMI-Housaq, Inc.
Apol 22, 2010
Page 3
This project will be designed to offer the maximum comfort, security, convenience and livability
to its senior residents.
IMM, =— -1.784
The primary impact to the existing neghborhood will be the elimination of vacant, underutilized
parcels of land. This project will also bring a new, vibrant focal point to the neighborhood. In
addition. the project will mean more housing into the existing urban neighborhood to spur
revitalization. This revitaleabon will help create a larger market for commercial and retail uses,
thus creating more employment opportunities in the immediate area. The development will
serve as an example M the vision of the 2025 General Plan Lard Use of mediunvhigh density
residential living.
Per the terms of the ENA, the Developer will submit entitlement applications this year and
submit an application for LIHTC in early 2011.
Nmlementardon Plan
The project is in the best interests of, and will materially contribute to, Redevelopment Plan
implementation. The Project (i) will have a positive influence in the Plan Area, and surrounding
environs, (ii) is in the vital and bast interests of Agency and the health, safety, and welfare of
City residents, (m) complies with applicable federal, stale, and local laws and requirements, (iv)
will help eliminate blight, (v) will improve and preserve the community's supply of low, and
moderate income housing available at affordable rent, as defined by Cal. H.&S.C. Sections
50052.5 and 50053, to persons and families of low or moderate income, as defined in Cel.
H.&S.C- Section 50093 of Code; (vi) will be available to meet the replacement housing
provisions in Cal. H.&S.C. Section 33413; (vii) will apply funds solely within the respective Plan
areas except to the extent otherwise provided herein and allowed by Law, (viii) all planning and
administrative expenses incurred in pursuit hereof are necessary, far the production,
improvement, or preservation of low and moderate mcome housing; (u) will comply with all
owner partiapation rules and means of Agency and the Plan, and (x) will comply with any antl
all applicable review and other requirements of the Citys Historical Preservation Commission.
Project Timirw
The City. Agency and AMCAL shall negotiate the terms of a DDA/HOME Agreement during the
entitlement phase of the project, and shall bring forward a DDAMOME Agreement for approval
at the antl of the entitlement process, after the CEDA review and analysis of the project is
complete. Under the banns of the DDAMOME Agreement, AMCAL shall submit a 9% LIHTC
application to the California Tax Credit Allocation Committee in early 2011.
REPORT TO THE CITY COUNCIL AND REDEVELOPMENT AGENCY BOARD
Extlusrve Negotiation Apmemem—AMCAL MW OuVng,Inc.
AmI22,21110
Pepe x
Housing and Community Development Commission
At the regularly scheduled Dealing of Ne Housing and Community Development Commission
on April 14, 2010, no Commission unanimously recommended approval of this ENA.
Attachments:
Area Map
Draft Exclusive Negotiation Agreement
. 27;
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