19-0402_C & C DEVELOPMENT CO., LLC_Exclusive Negotiation AgreementTHE CITY OF SAN JUAN CAPISTRANO
EXCLUSIVE NEGOTIATION AGREEMENT
(The Groves at Williams Ranch)
THIS EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement") is dated u, of û9f'f l ?
2019,for reference purposes only, and is entered into by and between the City of San Juan Capistrano, a
public body corporate and politic ("City") and C & C Development Co., LLC, a California limited
liability company, and The Waterford Group, Inc., a California corporation (collectively, "Developer"), to
provide a specified period of time to attempt to negotiate a disposition and development agreement. The
City and the Developer are sometimes referred to in this Agreement individually, as a "Part¡/" and,
collectively, as the "Parties." This Agreement is entered into by the Parties with reference to the
following recited facts (each, a "Recital"):
RECITALS
A. The City is the owner of that certain real property located at the northeast corner of
Camino Capistrano and Junipero Sena Road, San Juan Capistrano (APN 12l-050-21) and more
specif,rcally described in Exhibit A ("Property"); and
B. The City has unmet goals for low income housing units under its current Housing
Element and regional housing needs assessment goals for the 2014-2021planning period.
C. Approximately 2 to 2-Y' acres of the approximately 20 acres of the Properly are
developable. The City has an interest in developing the developable portion of the Property ("Developable
Property") for affordable housing and accepted development proposals from interested developers; and
D. The Developer has proposed the redevelopment of the Developable Property with a high
quality senior multi-family affordable rental complex of approximately 50-68 units and related
improvements, which maximize the available parking that can be accommodated on the triangular parcel
and retain the existing parking dedicated to the adjacent assisted living facility, as generally depicted in
the conceptual site plan attached to this Agreement as Exhibit "B" and incorporated into this Agreement
by this reference ("Project"); and
E. The intent of both the City and the Developer in entering into this Agreement is to
establish a specific, limited period of time to negotiate regarding a future agreement between them
governing the potential acquisition of the Developable Property and development of the Project on the
Developable Property, all subject to mutually agreeable terms, conditions, covenants, restrictions and
agreements to be negotiated and documented a future disposition and development agreement ("DDA").
NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE CITY
RELATING TO THE SALE AND DEVELOPMENT OF THE DEVELOPABLE PROPERTY AND
THE PROMISES OF THE CITY AND TITE DEVELOPER SET FORTH IN THIS AGREEMENT, THE
CITY AND THE DEVELOPER AGREE, AS FOLLOWS:
1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and
are incorporated into this Agreement, in their entirety, by this reference.
2. Deposits. Concurrent with the Developer's execution of this Agreement, the Developer
shall provide to the City a single deposit in the amount of Twenty-Five Thousand Dollars ($25,000) in
1603\0russ3627 .2
imrnediately available funds ("Deposit") to ensure that the Developer will proceed diligently and in good
faith to fulfill its obligations under this Agreement during the Negotiation Period (as defined in Section
3(a)), as part of the consideration for the City's agreement not to negotiate with other persons during the
Negotiation Period, and to defray some if not all of the legal costs of the City in pursuing the
contemplated negotiations with the Developer during the Negotiation Period, pursuant to this Agreement.
The City shall charge attorney fees associated with review and implementation of this Agreement or
preparation of the DDA) against the Deposit. The City shall provide monthly accountings to the
Developer as to the amount of legal fees paid from the Deposit. The Developer will not be required to
deposit additional funds beyond the initial Deposit even if the City's total legal fees exceed the amount of
the Deposit. At the termination of this Agreement, any remaining funds shall, at the Developer's option,
either be applied to the purchase price or returned to the Developer. Developer acknowledges that the
Deposit shall be in addition to those fees and expenses required by the City for any permit, other required
entitlement or project processing. A portion of the Initial Deposit in an amount equal to One Hundred
Dollars ($1OO¡ shall immediately become non-refundable upon Developer's transfer of the Initial Deposit
to the City under this Agreement as consideration for the City's agreement not to negotiate with other
persons during the Negotiation Period.
3. Term of Agreement.
(a) The rights and duties of the City and the Developer established by this
Agreement shall commence on the first date on which all of the following have occurred (the "Effective
Date"): (1) execution of this Agreement by the authorized representative(s) of the Developer and delivery
of such executed Agreement to the City, (2) payment of the Deposit to the City by the Developer, in
accordance with Section 2, (3) approval of this Agreement by the City governing body and execution of
this Agreement by the authorized representative(s) of the City and (4) delivery of such fully executed
Agreement to the Developer, the exact date of which shall be mutually agreed to by the Parties promptly
after Developer's receipt of the fully executed Agreement from the City as evidenced in writing signed by
their respective authorized representatives. The City shall deliver a fully executed counterpart original of
this Agreement to the Developer, within ten (10) calendar days following the City governing body's
approval of this Agreement, if approved, and the execution of this Agreement by the authorized
representative(s) of the City. This Agreement shall continue in effect for the period of two hundred forty
(240) consecutive calendar days immediately following the Effective Date ("Negotiation Period"), subject
to the limitations of Section 3(b).
(b) The Negotiation Period may be extended upon the mutual written agreement of
the City's City Manager and the Developer for no more than two (2) additional consecutive ninety (90)
calendar day periods. Notwithstanding the immediately preceding sentence or any other part of this
Agreement, in no event shall the Negotiation Period exceed four hundred twenty (420) consecutive
calendar days from the Effective Date; provided however, that the City Manager may extend the
Negotiation Period for any additional time as necessary for the sole purpose of completing any necessary
process and review under the California Environmental Quality Act.
(c) This Agreement shall automatically expire and be of no further force or effect at
the end of the Negotiation Period, unless, prior to that time, both the City and the Developer approve and
execute a DDA acceptable to both the City and the Developer, in their respective sole and absolute
discretion, in which case this Agreement willterminate on the effective date of such DDA.
4. Obligations of Developer. During the Negotiation Period, and pursuant to the attached
Milestone Schedule (Exhibit C), Developer shall proceed diligently and in good faith to develop and
present to City staff and, subsequently, to the City governing body, for review, all of the following:
2
1603\01U553627 .2
(a) Developer shall pay for an appraisal to determine the fair market value of the
Developable Property by an appraiser mutually acceptable to the Developer and the City;
(b) A proposed complete conceptual development plan for the Project on the
Developable Property that describes and depicts: (1) the location and placement of proposed buildings
and (2) the architecture and elevations ofthe proposed buildings;
(c) A proposed time schedule for the development of the Project on the Developable
Property; and
(d) A proposed financing plan identifzing financing sources and cost estimates for
the Project.
5. Obligations of City. During the Negotiation Period, and pursuant to the attached
Milestone Schedule (Exhibit C), City shall proceed diligently and in good faith complete all of the
following:
(a) Deliver to the Developer all records and documents in the City's possession that
related to the Property;
(b) Prepare fee estimates based on Developer's conceptual development plan for
Development Impact Fees, Planning Entitlement Processing Fees, and Building Permit Fees; and
(c) Initiate the preparation of a Lot Line Adjustment to create the parcel of the
Developable Property for the Project.
6. Negotiation of DDA.
(a) During the Negotiation Period, the City and the Developer shall proceed
diligently and in good faith to negotiate a DDA between them. The City and the Developer shall
generally cooperate with each other and supply such available documents and information as may be
reasonably requested by the other to facilitate the conduct of the negotiations. Both the City and the
Developer shall exercise commercially reasonable efforts to complete discussions relating to the terms
and conditions of a DDA and such other matters, as may be mutually acceptable to both the City and the
Developer, in their respective sole discretion. The exact terms and conditions of a DDA, if any, shall be
determined during the course of these negotiations. Nothing in this Agreement shall be interpreted or
construed to be a representation or agreement by either the City or the Developer that a mutually
acceptable DDA will be produced from negotiations under this Agreement. Nothing in this Agreement
shall impose any obligation on either Party to agree to a definitive DDA in the future. Nothing in this
Agreement shall be interpreted or construed to be a guaranty, warrant¡z or representation that any
proposed DDA that may be negotiated by City staff and the Developer will be approved by the City
governing body. The Developer acknowledges and agrees that the City's consideration of any DDA is
subject to the sole and absolute discretion of the City governing body and all legally required public
hearings, public meetings, notices, factual findings and other determinations required by law.
(b) Based upon Developer's proposal the Parties have come to a tentative agreement
on the following terms, subject to future negotiation during the Negotiation Period:
mari<et varue as ¿"t",.ii* ,r,#";ï;ïilili.ïi:liäJH,"ïxl:lîHåîTii rrom the citv ror rair
-1
1603\0tuss3627 .2
(ii) The Cify shall prepare and fully process a Lot Line Adjustment to form
the parcel for the Developable Properly and the City shall retain approximately 17-Yz fo l8_acres of
undevelopable land that is part of the Property. The City shall record the Lot Line Adjustment prior to
any closing on the Developable Property with the Developer.
(iii) City shall take back a residual receipts loan in the amount of the fair
market value of the Developable Property for the purchase of the Developable Properly and shall provide
a residual receipts loan in the amount of the impact fees for the Project as well as for development costs
for the Project in an amount to be determined by the City and the Developer during the Negotiation
Period.
7. Restrictions Against Change in Ownership, Management and Control of Developer
and Assignment of Agreement.
(a) The qualifications and identity of the Developer and its principals are of
particular concern to the City. It is because of these qualifications and identity that the City has entered
into this Agreement with the Developer. During the Negotiation Period, no voluntary or involuntary
successor-in-interest of the Developer shall acquire any rights or powers under this Agreement, except as
provided in Section 7(c).
(b) The Developer shall promptly notifu the City in writing of any and all changes
whatsoever in the identity of the business entities or individuals either comprising or in Control (as
defined in Section 7(d)) of the Developer, as well as any and all changes in the interest or the degree of
Control of the Developer by any such person, of which information the Developer or any of its
shareholders, partners, members, directors, managers or offtcers are notified or may otherwise have
knowledge or information. Upon the occurrence of any significant or material change, whether voluntary
or involuntary, in ownership, management or Control of the Developer (other than such changes
occasioned by the death or incapacity of any individual) that has not been approved by the City, prior to
the time of such change, the City may terminate this Agreement, without liability to the Developer or any
other person and refund any remaining Deposit funds provided by the Developer to the pursuant to
Section 2, above, by sending written notice of termination to the Developer, referencing this Section
77(b).
(c) The Developer may assign its rights under this Agreement to an Affiliate (as
defined in Section 7(d)), on the condition that such Affiliate expressly assumes all of the obligations of
the Developer under this Agreement in a writing reasonably satisfactory to the City, and further provided
that C & C Development Co., LLC, a California limited liability company, and The Waterford Group,
Inc., a California corporation (or their Affiliate), together with a nonprofit partner or its Affiliate,, Control
any such Affiliate. The City acknowledges that the entity to develop the Property will be in the form of a
limited partnership in which an Affiliate of C & C Development Co., LLC, a California limited liability
company, and The Waterford Group, Inc., a California corporation, will serve as a general partner and an
Affiliate of a nonprofit corporation will serve as the managing general partner (the "Partnership"). The
Developer may assign it rights under this Agreement or under the DDA to the Partnership without the
consent of the City provided that the Partnership expressly assumes all of the obligations of the Developer
under this Agreement in a writing reasonably satisfactory to the City
(d) For the purposes of this Agreement, the term "Affiliate" means any person,
directly or indirectly, controlling or controlled by or under common control with the Developer, whether
by direct or indirect ownership of equity interests, by contract, or otherwise. For the purposes of this
agreement, "Control" means possession, directly or indirectly, of the power to direct or cause the
4
1603\01u553627 2
direction of the management and policies of an entity, whether by ownership of equity interests, by
contract, or otherwise.
8. Obligations to Review Draft Agreements and Attend Meetings.
(a) During the Negotiation Period, each Party shall diligently review and comment
on draft versions of a DDA provided by the other Party and, if the terms and conditions of such a DDA
are agreed upon between City staff and the Developer, the Developer shall submit the DDA fully
executed by the authorized representative(s) of the Developer to the City Manager for submission to the
City governing body for review and approval or disapproval. Any future DDA shall consist of terms and
conditions acceptable to both the Developer and the City governing body, in their respective sole and
absolute discretion.
(b) During the Negotiation Period, the Developer shall also keep City staff advised
on the progress of the Developer in performing its obligations under this Agreement, on a regular basis or
as requested by City staff, including, without limitation, having one or more of the Developer's
employees or consultants who are knowledgeable regarding this Agreement, the design and planning of
the Project and the progress of negotiation of a DDA, such that such person(s) can meaningfully respond
to City and/or City staff questions regarding the progress of the design and planning of the Project or the
negotiation of a DDA, attend both: (l) periodic meetings with City staff, as reasonably scheduled and
requested by City staff during the Negotiation Period, and (2) meetings of the City governing body, when
reasonably requested to do so by City staff.
9. Developer to Pay All Costs and Bxpenses. All fees or expenses of engineers,
architects, financial consultants, legal, planning or other consultants or contractors, retained by the
Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning
andlor design activities, drawings, specifications or other activity or matter relating to the Developable
Property or the Project or negotiation of a DDA that may be undertaken by the Developer during the
Negotiation Period, pursuant to or in reliance upon this Agreement or in the Developer's discretion,
regarding any matter relating to a DDA, the Developable Properly or the Project, shall be the sole
responsibility of and undertaken at the sole cost and expense of the Developer and no such activity or
matter shall be deemed to be undertaken for the benefit of, at the expense of or in reliance upon the City.
The Developer shall also pay all fees, charges and costs, make all deposits and provide all bonds or other
security associated with the submission to and processing by the City and/or the City of any and all
applications and other documents and information to be submitted to the City and/or the City by the
Developer pursuant to this Agreement or otherwise associated with the Project. The City shall not be
obligated to pay or reimburse any expenses, fees, charges or costs incurred by the Developer in pursuit of
any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design
activities, drawings, specifications or other activity or matter relating to the Developable Property or the
Project or negotiation of a DDA that may be undertaken by the Developer during the Negotiation Period,
whether or not this Agreement is, eventually, terminated or extended or a DDA is entered into between
the City and the Developer, in the future.
10. City Not To Negotiate With Others. During the Negotiation Period, the City and City
staff shall not negotiate with any other person regarding the sale or redevelopment of the Developable
Property. The term "negotiate," as used in this Agreement, means and refers to engaging in any
discussions with a person other than the Developer, regardless of how initiated, with respect to the
availability of the Developable Property or that person's redevelopment of the Developable Property,
without the Developer's prior written consent. Developer acknowledges that City may receive and retain
unsolicited offers regarding redevelopment of the Developable Property, but shall not enteftain any offer
or negotiate with the proponent of any such offer during the Negotiation Period; provided, however, that
5
1603\01\2553627 .2
the City may notiff such proponent that it is a party to this Agreement . Developer acknowledges that the
City is a public agency and subject to the provisions of the California Public Records Act, Government
Code Section 6254, et. seq. (the "Act"). The City shall use its best effofts to inform Developer of any
request for information received pursuant to the Act. If Developer believes the information requested is
confidential, Developer may pursuant a court order preventing the release of the requested information.
1 1. Acknowledgments and Reservations.
(a) The City and the Developer agree that, if this Agreement expires or is teminated
for any reason, or a future DDA is not approved and executed by both the City and the Developer, for any
reason, neither the City nor the Developer shall be under any obligation, nor have any liability to each
other or any other person regarding the sale or other disposition of the Developable Property or the
redevelopment of the Project or the Developable Property; provided, however, that in the event this
Agreement terminates, the City shall return to the Developer within ten (10) business days of such
termination any and all Deposits due to be refunded pursuant to Section 2 of this Agreement.
(b) The Developer acknowledges and agrees that no provision of this Agreement
shall be deemed to be an offer by the City, nor an acceptance by the City of any offer or proposal from the
Developer for the City to convey any estate or interest in the Developable Property to the Developer or
for the City to provide any financial or other assistance to the Developer for redevelopment of the Project
or the Developable Property.
(c) The Developer acknowledges and agrees that the Developer has not acquired, nor
will acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal
property from the City.
(d) Certain development standards and design controls for the Project may be
established between the Developer and the City, but it is understood and agreed between the City and the
Developer that the Project and the redevelopment of the Developable Property must conform to all City,
City and other applicable governmental development, land use and architectural regulations and
standards. Drawings, plans and specifications for the Project shall be subject to the approval of the City
through the standard development application process for projects of this nature. Nothing in this
Agreement shall be considered approval of any plans or specifications for the Project or of the Project
itself by the City.
(e) The City reserves the right to reasonably obtain further available information and
data to ascertain the ability and capacity of the Developer to acquire or lease, develop and operate the
Developable Properfy and/or the Project. The Developer acknowledges that it may be requested to make
certain financial disclosures to the City, its staff, legal counsel or other consultants, as part of the financial
due diligence investigations of the City relating to the potential sale of the Developable Property and
redevelopment of the Project on the Developable Property by the Developer and that any such disclosures
may become public records. The City shall maintain the confidentiality of financial information of the
Developer to the extent allowed by law, as determined by the City Attorney.
12. Nondiscrimination. The Developer shall not discriminate against nor segregate any
person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap,
national origin or ancestry in undertaking its obligations under this Agreement.
6
1603\01u553627 .2
13. Limit¡tion on Dlmagcs and Rcmedies.
(a) Tt{E DEVELOPER AND THE CITY AcKNowLEDcE ïHAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN TT{E AMOUNT OF DAMAGES
THAT WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS
ACREEMENT BY THE CITY. HAVTNG MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS
TO ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE
BREACH OF THIS AGREEMENT BY THE CITY, THE DEVELOPER AND THE CITY AGREE
THAT A REASONABLE ESTIMATE OF THE DËVELOPER'S DAMAGES TN SUCH EVENT IS
TWENTY-FIVE THOUSAND DOLLARS ($25,000) o'HE "LIQUIDATED DAMAGES AMOUNT'}
THEREFORE, UPO\ THE BREACH OF THIS AGREEMENT BY THE CITY, THE CITY SHALL
PAY THE LIQUTDATED DAMAGES AMOTJNT TO THE DEVELOPER AND THIS AGREEMENT
SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES AMOIJNT SHALL BE THE
DEVELOPER'S SOLE AND EXCLUSIVE RËMEDY ARÍSING FROM ANY BREACH OF THIS
AGREEMENT BY THE CITY.
çr,l Tc-
lnitials of
Representative of Developer
(b) THE CITY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE
THAT THE CITY WOULD NOT HAVE ËNTERED TNTO TþIIS AGREEMENT, IF IT WERE TO BE
LIABLE TO THE DEVELOPER FOR AI.¡Y MONETARY DAMAGES, MONETARY RECOVERY
OR ANY REMEDY OTHËR T}IAN TERMINATION OF THIS AGREEMENT AND PAYTvIENT OF
THE LTQUIDATED DAMACES AMOIJNT. ACCORDTNGLY, THE CITY AND THE DEVELOPER
AGREE THAT THE DEVELOPER'S SOLE AND EXCLUSIVE zuGHT AND REMEDY UPON THE
BREACH OF TH¡S AGREEMENT BY THE CITY IS TO TERMINATE TT{IS AGREEMENT AND
RECEIVE THE LIQUIDATED DAMAGES AMOUNT.
(c) THE DEVELOPER ACKNOWLEDGES THAT IT IS AWARE OF THE
MEANING AND LEGAL EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CRED¡TOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TTME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS
OR HER SETTLÊMENT WITH THE DEBTOR.
(d) CALTFORNTA CIV¡L CODE SECTTON rs42 NOTIVITHSTANDING, IT IS
THE TNTENTION OF THE DEVELOPER TO BE BOIJND BY THE LIMITAT¡ON ON DAMAGES,
RËCOVERY AND REMEDIES SET FORTH IN THIS SECTION 13, AND THE DEVELOPER
HEREBY RELEASES A}.IY AND ALL CLAIMS AcAINST THE CITY FOR MONET.ARY
DAMAGËS, MONETARY RECOVERY OR OTHER LEOAL OR EQUITABLE RELIEF RËLATEÐ
TO ANY BREACH OF THIS AGREEMENT, EXCEPT RECEIPT OF THE LIQUIDATED DAMAGES
AMOUNT, WHETHER OR NOT ANY SUCH RELËASED CLAIMS WERE KNOWN OR
TJNKNOWN TO T}IE DEVELOPER AS OF THE EFFECTIVE DATE OF THIS AGREEMENT. THE
DEVELOPER SPECIFICALLY \ryAIVES THE BENEFITS OF CALIFORNIA CIVIL CODE SECTION
1542 AND ALL OTHER STATUTES AND ruDICIAL DECISIONS (WHETHER STATE OR
FEDERÂL) OF SIMILAR EFFECT WITH REGARD TO THE LIMITATIONS ON DAMAGËS AND
Initlãls óf Authorized
Rcpresentative of City
7
t 603\01u553627,2
REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND REMEDIES CONTAINED IN THIS
SECT¡ON 13.
lnit]zra-aË oiÀuúo¡ze¿
Rcpresentative of City
fL-fu, [n./
Initials of Äuthorízdd
Representative of Developer
Vt,
14. Defaull
(a) Failure or delay by either Parly to perform any material term or provision of this
Agreement shall constitute a default under this Agreement. If thc Party who is receives notice of a default
from the other Party curcs, corects or remedies the alleged default within fifrecn (15) calendar days afrer
receipt of written notice by the other Party speci$ing such default, such Party shall not be in default
under this Agreement. Thc noticc and cure period providcd in the immediately preceding sentence shall
not, under any circumstances, extend thc Negotiation Period. If there are less than fifteen (15) days
remaining in the Negotiation Period, the cure period allowed pußuant to this Section l4(a) shall be
automatically reduccd to the number of days remaining in the Negotiation Period.
(b) The Party claiming that a default has occuned shall give wrinen not¡ce of dcfault
to the Party claimed to be in dcfault, speci$ing the allegcd dcfault. Delay in giving such notice shall not
constitute a waivcr of any default nor shall it change the tíme of default. However, the injured Party shall
have no right to exercise any remedy for a default under this Agreement, without fint delivering written
notice of the default and allowing the applicable period to cure any such default as set forth in Section
l4(a).
(c) Any failurc or dcloy by a Party in asserting any of its rights or remedies as to any
default shsll not operate as a waiver of any default or of any rights or remedies æsociated with a default.
(d) If a default of either Party remains uncured for more than fifteen (15) calendar
days following rcceipt of written notice of such default, a "breach" of this Agreement by the defaulting
Party shall be deemed to have occurred. In the event ol a breach of this Agrecment, the sole and
exclusive remedy of the Party who is not in default shall be to terminate this Agrcement by serving
written notice of termination on the Party in breach and, in the case of a breach by the City, the Developer
shall also be entítled to receive the Liquidated Damages Amount.
15. Compliance with L¡w. Thc Dcvelopcr acknowledges that any future DDA, if approved
by the governing body of the City, will requirc thc Developer (among other things) to carry out the
development of the Project in conformity with all applicable laws, including all applicable building,
planning and zoning laws, environmenkl laws, safety laws and federal and state labor and wage laws.
16. Press Releascs. The Dcvelopcr agrcÊs to obtain the approval of the City Manager or his
or her designee or successor in function of any press releæes Devclopcr may propose relating to thc lease
or redevclopment of the Developable Propefy or negotiation of a DDA with the Ciry, prior to publication.
The rights and obligations in this provision shall not apply to leasing and marketing brochures and/or
informatíon distributed by email or placed online on a brokerage website or real estate websile such as
LoopNet.com.
17. NotÍce. All notices required under this Agreement shall be presented in perron, by
nationally rccognized overnight delivery service or by facsimile rnd confirmed by first class ccrtîfied or
registered United Søtes Mail, with retum receipt requested, to the address for the Party set forth in this
Section 17. Notice shall be deemed confirmed by United States Mail effective the third (3rd) business
tó03\0tu553ó27 2
I
5v
day after deposit with the United States Postal Service. Notice by personal service or nationally
recognized overnight delivery service shall be effective upon delivery. Either Party may change its
address for receipt of notices by notifl,ing the other Party in writing. Delivery of notices to courtesy copy
recipients shall not be required for valid notice to a Party.
TO DEVELOPER:C & C Development Co., LLC
14211 Yorba Street. Suite 200
Tustin. California 92780
Attn: Todd R. Cottle
AND
The Waterford Group
PO Box 10175
Newport Beach. CA 92658
Attn: Sean Rawson
COPY TO Goldfarb & Lipman LLP
1300 Clav Street. 1lth Floor
Oakland.CA94612
Attn: L)¡nn Hutchins
TO CITY Citv of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano. CA 92675
Attn: Citv Manager
18. Warranty Against Payment of Consideration for Agreement. The Developer
warrants that it has not paid or given, and will not pay or give, any third pafi any money or other
consideration for obtaining this Agreement. Third parties, for the purposes of this Section 8, shall not
include persons to whom fees are paid for professional services, if rendered by attorneys, financial
consultants, accountants, engineers, architects, brokers and other consultants, when such fees are
considered necessary by the Developer.
19. Acceptance of Agreement by Developer. The Developer shall acknowledge its
acceptance of this Agreement by delivering to the City three (3) original counterpart executed copies of
this Agreement signed by the authorized representative(s) of the Developer.
20. Counterpart Originals. This Agreement may be executed by the City and the
Developer in multiple counterpart originals, all of which together shall constitute a single agreement.
2I. No Third-Party Beneficiaries. Nothing in this Agreement is intended to benefit any
person or entity other than the City or the Developer.
22. Governing Law. The City and the Developer acknowledge and agree that this
Agreement was negotiated, entered into and is to be fully performed in the City of San Juan Capistrano,
California. The City and the Developer agree that this Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of California, without
application of such laws' conflicts of laws principles.
9
t603\01u553627 .2
23. Waivers. No waiver of any breach of any term or condition contained in this Agreement
shall be deemed a waiver of any preceding or succeeding breach of such term or condition, or of any other
term or condition contained in this Agreement. No extension of the time for performance of any
obligation or act, no waiver of any term or condition of this Agreement, nor any modifieation of this
Agreement shall be enforceable against the City or the Developer, unless made in writing and executed by
both the City and the Developer.
24. Construction. Headings at the beginning of each section and sub-section of this
Agreement are solely for the convenience of reference of the City and the Developer and are not a part of
this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural
and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if
it had been prepared by one or the other of the City or the Developer, but rather as if both the City and the
Developer prepared this Agreement. Unless otherwise indicated, all references to sections are to this
Agreement. All exhibits referred to in this Agreement are attached to this Agreement and incorporated
into this Agreement by this reference. If the date on which the City or the Developer is required to take
any action pursuant to the terms of this Agreement is not a business day of the City, the action shall be
taken on the next succeeding business day of the City.
24. Attorneys' X'ees. If either Party hereto files any action or brings any action or
proceeding against the other arising out of this Agreement, then the prevailing Party shall be entitled to
recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the
court, in such action or proceeding or in a separate action or proceeding brought to recover such
attorneys'fees. Forthe purposes hereof the words "reasonable attorneys'fees" mean and include, in the
case of either Party, salaries and expenses of the lawyers working for or employed by such Party
(allocated on an hourly basis) to the extent they provide legal services to such Party in connection with
the representation of that Party in any such matter.
[Signatures on following pagel
1603\01u553627 .2
10
THE CITY OF SAN.IUAN CAPISTRANO
EXCLUSIVE NEGOTIATION AGREEMENT
(The Groves at Williams Ranch)
IN WITNESS WHEREOF, the City and the Developer have executed this Negotiation
Agreement on the dates indicated next to each of the signatures of their authorized representatives, as
appear below.
DEVELOPER:
C & C Development Co., LLC, a
California limited
oated: 3/ 24 / 17
Todd R. Cottle, Trustee of the2007 Todd R.
Cottle and Jennifer N. Cottle Revocable
Trust
By
Dated: ?/7K/11
nu6¿. 3 - 2å-l-1
By n
nan! R. Ktúe,Trustee of The
Cottle Family Trust Dated 3/8/1987
THE WATERFORD GROUP, INC., a California
By
son,President
CITY
THE CITY OF SAN
I
By
Dated
ATTEST:
By:
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
By:O.,/n;1 c.a,^-,
City ntúrneyt /
t603\o1u553627 ,2
'-'¿f
11
EXHIBIT "A"
TO
NEGOTIATION AGREEMENT
Propertv Legal Description
Exhibit A
Page I
1603\0tu5s3627 .2
Order Number: 05A-3616201 (18)
Page Number: B
LEGAL DESCRIPTION
Real propefi in the City of San Juan Capistrano, County of Orange, State of California,
described as follows:
THAT PORTON OF SECnON 36, TOWNSHIP 7 SOUTH, RANGE B WESI SAN BERNARDINO
MERIDIAN, IN THE CITY OF SAN JUAN CAPISTRANO, ACCORDING TO THE OFFICIAL PLAT
FILED IN THE DISTRICT I-AND OFFICE, DESCRÏBED AS FOLLOWS:
BEGINNING AT A POINT IN THE EAST LINE OF THE SOUTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 7 SOUTH, RANGE B WESI SAN
BERNARDINO BASE AND MERIDIAN, DISTANT SOUTH OO 44' WEST 630.73 FEET FROM THE
NORTHEAST CORNER OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID
SECTION 36; THENCE FROM SAID POINT OF BEGINNING, NORTH BBo 43' 40' WEST 1648.31
FEETTO A POINT IN THE CENTER LINE OF THE CALIFORNIA STATE HIGHWAY, AS DESCRIBED
IN THE DEED RECORDED MARCH22,19T6 IN BOOK 281 PAGE 245 OF DEEDS, SAID POINT
BEING NORTH 260 40'EAST 93.28 FROM THE SOUTHWESTERLY END OF A COURSE IN SAID
LAND, RECORDED MARCH 22, L9t6IN BOOK 281 PAGE 245 OF DEEDS, WHICH BEARS NORTH
260 40' EAST 641.11 FEET; THENCE NORTH 26o 40'EASTALONG THE CENTER LINE, AS
DESCRIBED IN SAID DEED RECORDED MARCH22, L9L6 IN BOOK 281 PAGE 245 OF DEEDS,
AND ALONG THE CENTER LINE, AS DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA,
RECORDED JANUARY 24, L925 IN BOOK 557 PAGE 305 OF DEEDS, 447.59 FEET TO THE
BEGINNING OF A CURVE TANGENT, CONCAVE WESTERLY AND HAVING A RADIUS OF 7OO FEET;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 360 57I A
DISTANCE OF 451,43 FEET TO A LINE TANGENT; THENCE NORTH 10o 17' WEST ALONG SAID
TANGENT LINE, 116.81 FEETTO A POINT; THENCE SOUTH 67o 33'50" WEST 306.88 FEETTO A
POINT; THENCE NORTH 29" 48'00' WEST 360.24 FEETTO A POINT; THENCE NORTH 19o 19'
00" WEST L99.L2 FEETTO A POINT; THENCE SOUTH 75o 15'40'WEST 180,19 FEETTO A
POINT; THENCE NORTH 34o 28'00" WEST 165.62 FEETTO A POINT; THENCE NORTH B4o 10'
20' WEST t40.43 FEET TO A POINT; THENCE SOUTH 73" 5L' 20" WEST 208.66 FEET TO A
POINT; THENCE SOUTH 160 11'50" EAST 1089.10 FEETTO A POINT; THENCE SOUTH 44o 5L'
40' WEST 109.08 FEET TO A POINT; THENCE SOUTH 19o 50' 40' WEST 140.56 FEET TO A
POINT; THENCE SOUTH L7o 54'20" EAST 503.86 FEETTO A POINT; THENCE SOUTH 37" 36'
40'WEST 25B.BO FEETTO A POINT IN THE NORTHEASTERLY RIGHT OF WAY LINE OF THE
ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY'S 6O-FOOT RIGHT OF WAY, AS
coNVEyED TO THE CAUFORNIA CENTRAL RAILWAY COMPANY, BY DEED RECORDED IN BOOK
504 PAGE 305 OF DEEDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, SAID POINT
BEING ON A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 5699.65 FEET, THE
CENTRAL POINT OF WHICH BEARS NORTH 7I" 53' 50" EAST; THENCE SOUTHEASTERLY ALONG
SAID CURVE AND ALONG THE NORTHEASTERLY LINE OF THE ATCHISON, TOPEKA AND SANTA
FE RAILWAY COMPANY'S 60-FOOT RIGHT OF WAY, THROUGH A CENTRAL ANGLE OF 1o 20' 10"
A DISTANCE OF 132.91 FEETTO A LINE TANGENTTHENCE SOUTH LgO 26'20" EASTALONG
SAID TANGENT LINE AND ALONG THE NORTHEASTERLY LINE OF THE ATCHISON, TOPEKA AND
SANTA FE RAILWAY COMPANY'S 6O-FOOT RIGHT OF WAY, 782,65 FEEÏTO A POINT IN THE
SOUTHERLY LINE OF THE LAND DESCRIBED IN THE DEED FROM ETIENNE OYHARZABAL AND
WIFE, TO R. y. WILLIAMS AND W. B. WILLIAMS, RECORDED NOVEMBER 18, 1916 IN BOOK 289
PAGE 46 OF DEEDS; THENCE NORTH 70o 33'40" EASTALONG SAID SOUTHERLY LINE,30.07
FEET, MORE OR LESS TO A POINT IN THE CENTER LINE OF THE STATE HIGHWAY, AS
DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED MARCH 22, 1916 IN
BOOK 281 PAGE 245 OF DEEDS, SAID POINT BEING THE BEGINNING OF A CURVE CONCAVE
EASTERLY AND HAVING A RADIUS OF 4OO FEET, THE CENTRAL POINT OF WHICH BEARS
First American 77tle
Order Number: 05A-3616201 (18)
Page Number: 9
NORTH 70o 33'40" EAST; THENCE NORTHERLY ALONG SAID CURVE; (FOLLOWING SAID
CENTER LINE AS DESCRIBED IN DEED RECORDED MARCH 22, L916 IN BOOK 281 PAGE 245 OF
DEEDS), THROUGH A CENTRAL ANGLE OF 44" 19' 20" A DISTANCE OF 309.43 FEETTO A LINE
TANGENT; THENCE NORTH 24o 53' EAST ALONG SAID TANGENT LINE, 333.25 FEETTO THE
BEGINNING OF A CURVE TANGENT CONCAVE WESTERLY AND HAVING A RADIUS OF 5OO FEET;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF lOO 34'25" A
DISTANCE OF 92.27 FEET TO A POINT IN THE EAST AND WEST HALF OF SECTION LINE OF
SAID SECTION 36; THENCE LEAVING THE CENTER LINE, AS DESCRIBED IN SAID DEED
RECORDED MARCH 22, T916 IN BOOK 281 PAGE 245OF DEEDS, SOUTH B9O 46'EASTALONG
THE SAID EAST AND WEST HALF SECÏON LINE, 1839.37 FEET ÏO THE SOUTHEAST CORNER
OF THE SOUTHWEST QUARTER OF THE NORTHEASÏ QUARTER OF SAID SECTION 36; THENCE
NORTH OO 44' EAST ALONG THE EAST LINE OF THE SOUTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECnON 36, 689.75 FEETTO THE POINT OF BEGINNING.
EXCEPTNG THEREFROM THAT PORTION LYING EASTERLY OF THE CENTER LINE OF THE STAÏE
HIGHWAY, AS DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, MARCH 22, L9L6IN BOOK
281 PAGE 245 OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO EXCEPTING THEREFROM THAT PORTON DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE WESTERLY BOUNDARY LINE OF LAND DESCRIBED IN PARCEL V
OF A DECREE OF DISTRIBUTION, A CERTIFIED COPY BEING RECORDED AUGUST 24, 1956 IN
BOOK 3623 PAGE 542OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, SAID POINT
BEING SOUTH 160 11' 50" EAST 275.50 FEET FROM THE MOST WESTERLY CORNER OF SAID
PARCEL V; THENCE SOUTH 16o 11' 50" EAST 25.00 FEET; THENCE NORTH 73" 48' 10" EAST
25.00 FEET; THENCE SOUTH 73o 48' 10' WEST 25.00 FEET TO THE POINT OF BEGINNING.
ALSO EXCEPTNG THEREFROM THAT PORTON DESCRIBED IN DEED TO ORANGE COUNTY
FLOOD CONTROL DISTRICT RECORDED JULY 1, 1971 IN BOOK 9702 PAGE 466 OF SAID
OFFICIAL RECORDS.
ALSO EXCEPTNG THEREFROM THAT PORTON LYING SOUTHERLY OF THE QUARTER LINE OF
THE NORTHWEST QUARTER OF SAID SECilON 36, TOWNSHIP 7 SOUTH, RANGE B WEST, SAN
BERNARDINO MERIDIAN.
APN:121-050-21
First Amerban Title
EXHIBIT "B"
TO
NEGOTIATION AGREEMENT
Pro_iect Site Plan
[To Be Attached Behind This Cover Page]
Exhibit B
Page I
1603\01uss3627 .2
FRTJECT SUMMARY
Pt{Iry S¡ç¡ltc uq}@*ftÞ s p@4s'^*$ r6w# €!ár1;e***: . â ¡sas¡s¡. ?gtw l¡rsrgfat{r l? t¡æô **S Stß- SW¡$
l-:;J ! æë
i. .. ........1
? ã{ã
lDËÂrc
Exhibit B
Page2
1603\01u553627 .2
ftfio",****
EXHIBIT C
MILESTONE SCHEDI]LE
Exclusive Negotiating Agreement Timeline
Exhibit C
Page 1
Within 30 Days of Effective Date (_) of ENA
lnitial Pro Forma Submit initial pro forma for the proposed project
Project Development
Schedule
Submit projected development schedule for the proposed project.
Due Diligence City to provide all documents and records it has related to the Property
Within 60 Days of Effective Date of ENA
Conceptual Development
Plan Submittal
Developer submits complete conceptual development plan for the Project on the
Developable Property that describes and depicts: (1) the location and placement of
proposed buildings and (2) the architecture and elevations of the proposed buildings
Within 90 Days of Effective Date of ENA
Fee Estimates
City to prepare fee estimates based on Developer's conceptual development plan for
Development lmpact Fees, Planning Entitlement Processing Fees, and Building
Permit Fees based on conceptual development plan
Appraisal Developer to contract for and submit appraisal of fair market value of Developable
Property.
Within _120 Days of Effective Date of ENA
Revised Proforma and
Development Schedule
Submit refined proforma and development schedule based on City's estimated fees
Lot Line Adjustment City to initiate processing for the Lot Line Adjustment.
Within 210 Days of Effective Date of ENA
Draft DDA Complete negotiations and draft Disposition and Development Agreement.
Final Revisions Finalize revisions to development proposal and all relevant materials
Within 240 Days of Effective Date of ENA
3ity Council Hearing Present development proposal and DDA to City Council for final
review and approval.
M¡LESTONE DESCRIPTION
1603\01us53627 .2
Exhibir C
Page2
t603\01uss3627 .2