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06-0718_FAMILY TOYOTA_Exclusive Negotiating Agr0 0 EXCLUSIVE NEGOTIATING AGREEMENT THIS EXCLUSIVE NEGOTIATING AGREEMENT is made and entered into on July 18, 2006, by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and FAMILY TOYOTA (the "Developer"). Agency and Developer referred to herein as the "Parties". RECITALS The following recitals are a substantive part of this Agreement. A. Developer is interested in the purchase of all or a portion of certain Agency -owned real property north of Stonehill Drive, west of the OCTA railroad, and east of the OCFCD channel, in the City of San Juan Capistrano; consisting of approximately 15.03 gross acres, as shown on the Site Map which is attached hereto as Exhibit "A" and incorporated herein (the "Site), and referred to hereinafter as "the Property". B. Developer agrees and understands that another automotive user, AUTOMOTIVE INVESTMENT GROUP, INC., is also interested in purchasing a portion of the subject 15.03 acres and accordingly, proposes to concurrently enter into a similar exclusive negotiating agreement with the Agency. The parties agree that both potential purchasers will coordinate and cooperate in organizing a purchase offer which will permit both users to acquire portions of the property for automotive uses on a mutually agreeable basis. C. The Parties agree and acknowledge that the purpose of this Agreement is to establish a period during which Developer shall have the exclusive right to negotiate with the Agency for the purchase of the Property for potential use of auto dealership; provided, however, that the Parties agree and acknowledge that Agency shall be entering into an identical agreement with FAMILY TOYOTA. NOW, THEREFORE, the Parties mutually agree as follows: Agreement to Negotiate. a. Initial Term. The initial term of the Negotiating Period shall be for ninety (90) days. The Negotiating Period may be extended upon mutual agreement of the Parties. b. Agreement to Negotiate. The Agency (by and through its staff and consultants) and Developer agree that for the term of the Negotiating Page 1 of 5 0 0 Period (whether said period expires or is earlier terminated by the provisions herein) each party shall negotiate in good faith for the purpose of developing a purchase agreement for the Property. C. Exclusivity. Agency agrees to negotiate exclusively with Developer, and not with any other person or entity, during the Negotiating Period, and shall not negotiate with any other party during the Negotiating Period; provided, however, that Agency may enter into an agreement with AUTOMOTIVE INVESTMENT GROUP, INC., which provides AUTOMOTIVE INVESTMENT GROUP, INC., with rights no more favorable than those granted to Developer herein. d. Termination of Agreement. Except as this Agreement is extended as otherwise provided in this Agreement, if on the ninetieth (g0th) day from the date of this Agreement a draft purchase agreement has not been mutually developed between the Parties, then this Agreement shall automatically terminate without further written notice. Upon such automatic termination and expiration of the Negotiating Period, both Parties knowingly agree that neither Party shall have any further rights or remedies to the other. Notwithstanding the foregoing, Agency and Developer reserve the right in their respective sole and absolute discretion to mutually agree to further extend the Negotiating Period by a written extension. Agency undertakes no commitment or obligation to Developer to grant any such extension. 2. No Predetermination of Agency Discretion. The Parties agree and acknowledge that nothing in this Agreement in any respect does or shall be construed to affect or prejudge the exercise of the Agency's discretion concerning consideration of the Developer's purchase proposal or prejudge the Agency's discretion to consider, negotiate, or undertake the acquisition and/or development of any portion of the Site, or shall affect the Agency's compliance with the laws, rules, and regulations governing the disposition of property. Agency represents and warrants that it has full power and authority, and all necessary corporate action has been taken, to enter into this Agreement. 3. Hazardous Materials Assessment. The Developer at its sole cost and expense may at its option conduct or cause to be conducted environmental assessments, audits and/or testing of the Site, and shall be granted a license to enter the Site for such purposes upon Developer's execution of a right of entry agreement to be prepared by the Agency. Developer shall have the right to terminate this Agreement if Developer is not reasonably satisfied with the findings and the recommendations made in either any environmental audit conducted by or for the Developer. However, both Parties acknowledge and agree that specific representations or warranties, agreements, obligations, liabilities or responsibilities pertaining to the condition of the Site and/or the Page 2 of 5 0 • Proposed Development will be the subject of negotiations between the Parties in connection with the negotiations of any DDA entered into by the Parties. 4. Cost and Expenses. Each party shall be responsible for its own costs and expenses in connection with any activities and negotiations undertaken in connection with this agreement. 5. Change in Developer. Developers agree to make full disclosure to the Agency of any reasonably requested information concerning the Developer. No person or entity, whether a voluntary or involuntary successor or Developer, shall acquire any rights or powers under this Agreement nor shall the Developer assign all or any part of this Agreement without the prior written approval of the Agency, which approval the agency may grant, withhold or deny at its sole and absolute discretion. Any other purported transfer, voluntarily or by operation of law, shall be absolutely null and void and shall confer no rights whatsoever upon any purported assignee or transferee. This Agreement shall not be construed to constitute the Agency's approval of Developer or any party affiliated with Developer as the general contractor of the Development. 6. Lead Negotiators. The Agency's Executive Director, or his or her designee, shall be the lead negotiator for the Agency with respect to the subject matter of this Agreement; provided, however, that the Agency Board, together with the City Council, reserves its rights to consider and approve or disapprove the proposed DDA. Michael Pacheco shall be the lead negotiator for the Developer with respect to the subject matter of this Agreement. 7. Agency Cooperation. The Agency shall cooperate with Developer's professional consultants and associates in providing them with any information and assistance reasonably within the capacity of the Agency to provide in connection with the preparation of the Developer's submissions to the Agency pursuant to this Agreement or as required by state or local laws and regulations. This requirement does not obligate the Agency to incur any monetary costs therefore. 8. Address for Notices. Any notices pursuant to this Agreement shall be in writing and sent (i) by Federal Express (or other established express delivery service which maintains delivery records), (ii) by hand delivery, or (iii) by certified or registered mail, postage prepaid, return receipt requested, to the following addresses: To Agency: San Juan Capistrano Community Redevelopment Agency 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: Douglas D. Dumhart, Economic Development Manager Page 3 of 5 To Developer 0 0 Marc Spizzirri, Owner Family Toyota 33395 Camino Capistrano San Juan Capistrano, CA 92675 With a copy to: 9. Default. Failure by either party to negotiate in good faith or to perform any other of its duties as provided in this Agreement shall constitute an event of default under this Agreement. The non -defaulting party shall give written notice of a default to the defaulting party, specifying the nature of the default and the action required to cure the default. If the default remains uncured fifteen (15) days after the date of such notice, the non -defaulting party may exercise the remedies set forth in Section 10 of this Agreement. 10. Remedies for Breach of Agreement. In the event of an uncured default under this Agreement, the sole remedy of the non -defaulting party shall be to terminate this Agreement. Following such termination, neither party shall have any further rights, remedies or obligations under this Agreement. Neither party shall have any liability to the other for monetary damages or specific performance for the breach of this Agreement, or failure to reach agreement on a purchase agreement, and each party hereby waives and releases any such rights or claims it may otherwise have at law or at equity. Furthermore, the Developer knowingly agrees that it shall have no right to specific performance for conveyance of, nor to claim any right of title or interest in the Site or any portion thereof. 11. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. 12. Agreement Does Not Constitute Land Use Approvals. The Agency reserves absolute approval as to approval of any proposed purchase agreement. This Agreement shall not be construed as a grant of any land use approval or other development right. All applicable land use approvals required for the establishment of automotive uses on the Property shall be subject to the City of San Juan Capistrano Municipal Code. 13. Governing Law. This Agreement shall be construed in accordance with the laws of the State of California. Page 4 of 5 0 0 NOW THEREFORE, the Agency and the Developer have executed this Exclusive Negotiating Agreement as of the date and year first set forth above. ATTEST: AGENCY: SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, Corporate and politic By: aAv, _ Dave Adams, Executive Director R. Monahan, Agency Secretary AS TO FORM: qpU,��� John Shaw, Ag cy Spesial Counsel DEVELOPER: Family Toyota 2111 Marc Opizzirri, Auth rized Signor Page 5 of 5 San Juan Capistrano Community Redevelopment Agency TRANSMITTAL TO: 0 Marc Spiairri, Owner Family Toyota 33395 Camino Capistrano San Juan Capistrano, CA 92675 FROM: Maria Guevara, Deputy City Clerk (949) 443-6309 SUBJECT: Exclusive Negotiating Agreement An original, executed agreement is enclosed for your records. July 19, 2006 If you have questions regarding specifics of your agreement or work with the city, please contact the project manager, Douglas Dumhart, Economic Development Manager (949) 443-6316. CC: Douglas Dumhart, Economic Development Manager 32400 Paseo Adelanto San Juan Capistrano California 92675 949-493-1171