21-0316_JAMBOREE HOUSING CORPORATION_Agenda Report_E6City of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Siegel, City Manager
SUBMITTED BY: Joel Rojas, Development Services Director
PREPARED BY: Laura Stokes, Housing Supervisor / Associate Planner
DATE: March 16, 2021
SUBJECT: Amended Exclusive Negotiation Agreement Between the City of San
Juan Capistrano and Jamboree Housing Corporation for Potential
Development of an Affordable Housing and City Hall Project at the
City-owned Property Located at 32400 Paseo Adelanto (Portion of
Assessor Parcel Number 668-101-23)
RECOMMENDATION:
Approve and authorize the City Manager to execute an Amended Exclusive Negotiation
Agreement (“ENA”) with Jamboree Housing Corporation, extending the current ENA for
the potential development of an affordable housing project and City Hall facility to
September 9, 2021.
EXECUTIVE SUMMARY:
In April 2020, the City Council authorized the City Manager to execute an ENA with
Jamboree Housing Corporation (“Jamboree”) to investigate the feasibility of developing
the current City Hall site with an affordable housing project that includes a new City Hall
facility. Since that time, staff has been working with Jamboree to analyze the economic
feasibility of this unique project concept. The ENA is set to expire on April 9, 2021, and,
staff is recommending that the City Council approve and authorize the City Manager to
execute an Amended ENA (Attachment 1) with Jamboree which would extend the current
ENA by 180 days and allow for two optional 90-day extensions if needed.
DISCUSSION/ANALYSIS:
3/16/2021
E6
City Council Agenda Report
March 16, 2021
Page 2 of 3
On April 7, 2020, the City Council authorized the City Manager to execute an ENA with
Jamboree to explore the feasibility of developing the 2.5-acre City Hall property with
permanent supportive affordable housing integrated with a new City Hall facility. The April
7, 2020, staff report is provided as Attachment 2. The term of the ENA was for 180 days,
with two options for 90-day extensions, which were subsequently executed by Jamboree
and the City Manager. The ENA is now set to expire on April 9, 2021.
Since Jamboree continues to diligently work with staff to analyze an economically feasible
project on the City Hall site, staff is recommending that the City Council approve and
authorize the City Manager to execute an Amended ENA with Jamboree which would
extend the current ENA 180 days, from April 9, 2021, to September 9, 2021, and allow
the City Manager to execute two optional 90-day extensions if needed. During this
extended negotiation period, staff and Jamboree intend to discuss variations of the
original concept in order to reduce the square footage and associated cost of the City Hall
facility; this could include the potential of co-locating the Council Chambers at the
Community Center facility on Camino Del Avion, and constructing City administrative
offices only in conjunction with the proposed permanent supportive housing project at the
existing City Hall site.
The Amended ENA would not bind the City in any way to a specific project or future sale
of the property to Jamboree. Extending the ENA would simply allow staff and Jamboree
additional time to continue studying the feasibility of a mixed use project on the City Hall
site, conduct outreach to neighboring property owners, tenants and interested community
members and, if warranted, negotiate a Development and Disposition Agreement which
would be presented to the City Council for consideration.
FISCAL IMPACT:
Approval of the Amended ENA would have no fiscal impact to the City. All expenses
during the term of this ENA for consultants and other professional planning/engineering
services would be the sole responsibility of Jamboree.
ENVIRONMENTAL REVIEW:
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061(b)(3), the general rule that CEQA applies
only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA. Should the proposed development project move forward for
discretionary actions, the appropriate documentation will be provided consistent with
CEQA Guidelines.
PRIOR CITY COUNCIL REVIEW:
City Council Agenda Report
March 16, 2021
Page 3 of 3
On April 7, 2021, the City Council authorized the City Manager to execute an ENA with
Jamboree.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
Not Applicable.
NOTIFICATION:
Notification of this item has been provided to the following:
• Jamboree Housing • San Juan Mobile Estates HOA
• Alipaz Community HOA • Millennium Housing
• Spaulding Properties • Griffin Structures, Dustin Alamo
• Plaza Del Rio c/o Westwood Financial
Corp.
ATTACHMENTS:
Attachment 1 – Amended Exclusive Negotiation Agreement
Attachment 2 – April 7, 2020 City Council Staff Report
THE CITY OF SAN JUAN CAPISTRANO
FIRST AMENDED EXCLUSIVE NEGOTIATION AGREEMENT
(City Hall Site)
THIS FIRST AMENDED EXCLUSIVE NEGOTIATION AGREEMENT (“Amended
Agreement”) is dated as of March__, 2021, 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 Jamboree Housing
Corporation, a California nonprofit public benefit corporation (“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 Amended Agreement individually, as a “Party” and, collectively, as the
“Parties.” This Amended 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 32400 Paseo Adelanto, San
Juan Capistrano, California (APN 668-101-23) and more specifically described in Exhibit A (“Property”);
and
B.The City has an interest in developing the Property and has accepted development
proposals from interested developers; and
C.The Developer has proposed the redevelopment of the Property to create affordable
housing units and a new City Hall, as generally depicted in the conceptual site plan attached to this
Amended Agreement as Exhibit “B” and incorporated by this reference (“Project”); and
D.The Parties previously entered into an Exclusive Negotiation Agreement on April 8, 2020
(the “Original Agreement”), which was due to expire on October 8, 2020, with two options of 90-days each.
The parties agreed at the end of the initial 180-day period of the Original Agreement to utilize both available
90-day extensions; as a result, the Original Agreement will expire without an option to extend on April 9,
2021. The letters extending the Original Agreement, dated September 30, 2020 and January 6, 2021,
respectively, are attached hereto as Exhibit “C” and incorporated by this reference; and
E.The Parties have determined that additional time to assess the viability of developing a
reduced size and more cost-effective City Hall facility is warranted; and.
F.The intent of both the City and the Developer in entering into this Amended Agreement is
to establish a specific, limited period of time to negotiate regarding a future agreement between them
governing the potential ground lease of the Property and development of the Project on the Property, all
subject to mutually agreeable terms, conditions, covenants, restrictions and agreements to be negotiated
and documented in a future disposition and development agreement (“DDA”).
NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE PARTIES
RELATING TO THE PROJECT AND THE COVENANTS AND PROMISES OF THE CITY AND THE
DEVELOPER SET FORTH IN THIS AMENDED AGREEMENT, AND FOR GOOD AND VALUABLE
CONSIDERATION, THE SUFFICIENCY AND RECEIPT OF WHICH ARE HEREBY
ACKNOWLEDGED BY THE PARTIES. THE CITY AND THE DEVELOPER AGREE, AS FOLLOWS:
ATTACHMENT 1
1.Incorporation of Recitals. The Recitals of fact set forth above are true and correct and
are incorporated into this Amended Agreement, in their entirety, by this reference.
2.Deposits.
(a)Concurrent with the Developer’s execution of the Original Agreement on April 8,
2020, the Developer paid to the City a deposit in the amount of Twenty-Five Thousand Dollars ($25,000)
in immediately available funds (“Initial Deposit”) to ensure that the Developer will proceed diligently and
in good faith to fulfill its obligations under the Original Agreement on April 8, 2020, and this Amended
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 certain
costs of the City in pursuing the contemplated negotiations with the Developer during the Negotiation
Period, pursuant to this Amended Agreement. The City shall charge all third party costs (including
reasonable consultant fees and attorney fees associated with review and implementation of this Amended
Agreement or preparing the DDA) against the Initial Deposit (and Extension Deposit pursuant to Section
2(b) below, as applicable). At the termination of this Amended Agreement, any remaining funds shall, at
the Developer’s option, either be applied to the ground lease payment or returned to the Developer.
Developer acknowledges that the Initial Deposit (and any Extension Deposit, pursuant to Section 2(b)
below) 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 ($100) shall immediately become non-refundable upon Developer’s transfer of the Initial Deposit
to the City under this Amended Agreement as consideration for the City’s agreement not to negotiate with
other persons during the Negotiation Period.
(b)Upon each extension of the Negotiation Period occurring pursuant to the
provisions of Section 3(b), if any, the Developer shall provide to the City an additional deposit of Ten
Thousand Dollars ($10,000) in immediately available funds on the first day of any extension of the
Negotiation Period occurring pursuant to the provisions of Section 3(b) (each, an “Extension Deposit”).
Each Extension Deposit is intended to ensure that the Developer will proceed diligently and in good faith
to fulfill its obligations under this Amended Agreement during any extension of the Negotiation Period, as
part of the consideration for the City’s agreement not to negotiate with other persons during any such
extension of the Negotiation Period, and to defray certain costs of the City in pursuing the contemplated
negotiations with the Developer during any such extension of the Negotiation Period, pursuant to this
Amended Agreement. At the termination of this Amended Agreement, any remaining funds from an
Extension Deposit shall be refundable to the Developer as provided in Section 2(a), above.
3.Term of Agreement.
(a)The rights and duties of the City and the Developer established by this Amended
Agreement shall commence on the first date on which all of the following have occurred (the “Effective
Date”): (1) execution of this Amended Agreement by the authorized representative(s) of the Developer and
delivery of such executed Amended Agreement to the City, (2) payment of the Initial Deposit to the City
by the Developer, in accordance with Section 2(a), (3) approval of this Amended Agreement by the City
governing body and execution of this Amended Agreement by the authorized representative(s) of the City
and (4) delivery of such fully executed Amended 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 Amended
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 Amended Agreement to the Developer, within
ten (10) calendar days following the City governing body’s approval of this Amended Agreement, if
approved, and the execution of this Amended Agreement by the authorized representative(s) of the City.
This Amended Agreement shall continue in effect for the period of one hundred eighty (180) consecutive
calendar days immediately following the Effective Date (“Negotiation Period”), subject to the limitations
of Sections 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
Amended Agreement, in no event shall the Negotiation Period exceed one (1) year from the Effective Date.
(c)This Amended Agreement shall automatically expire and be of no further force or
effect at the end of the Negotiation Period (including any extension of the Negotiation Period in accordance
with Section 3(b)), 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 Amended Agreement will terminate on the effective date of such DDA.
4.Obligations of Developer. During the Negotiation Period, and pursuant to the attached
Milestone Schedule (Exhibit D), 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:
(a)A proposed complete conceptual development plan for the Project on the Property
that describes and depicts: (1) the location and placement of proposed buildings and (2) the architecture
and elevations of the proposed buildings;
(b)Any zoning change or General Plan amendment that is necessary to accommodate
the Project on the Property;
(c)A schedule of anticipated lease rates and unit mix for the Property.
(d)A proposed time schedule and cost estimates for the development of the Project on
the Property;
(e)A proposed financing plan identifying financing sources for all private and public
improvements proposed for the Project; and
(f)A preliminary financial analysis demonstrating the costs and benefits to the City
regarding all construction, maintenance and operations of all proposed public improvements, the costs of
additional or increased levels of public services and any new public revenues anticipated to be generated
by the Project.
5.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 Amended 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 Amended Agreement. Nothing in this Amended Agreement shall
impose any obligation on either Party to agree to a definitive DDA in the future. Nothing in this Amended
Agreement shall be interpreted or construed to be a guaranty, warranty 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 on Developer’s proposal, the Parties have come to a tentative agreement on
the following terms, subject to future negotiation during the Negotiation Period:
(i)The Developer shall lease the Property from the City for ninety-nine (99)
years.
(ii)The Developer shall pay for Griffin Structures to conduct an independent
review of the San Juan Capistrano City Hall component’s design and cost.
6.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
Amended 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 Amended Agreement,
except as provided in Section 6(c).
(b)The Developer shall promptly notify 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 6(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 officers 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 Amended 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(a), above, by sending
written notice of termination to the Developer, referencing this Section 6(b).
(c)Notwithstanding anything in this Amended Agreement to the contrary, the
Developer may assign its rights under this Amended Agreement to an Affiliate (as defined in Section 6(d)),
such as a single purpose LLC, on the condition that such Affiliate expressly assumes all of the obligations
of the Developer under this Amended Agreement in a writing reasonably satisfactory to the City, and further
provided that Developer shall, at all times, control any such Affiliate and be responsible and obligated
directly to the City for performance of the Developer’s obligations under this Amended Agreement.
(d)For the purposes of this Amended 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
direction of the management and policies of an entity, whether by ownership of equity interests, by contract,
or otherwise.
7. 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 Amended 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 Amended 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: (1) periodic meetings with City staff, as reasonably scheduled
and requested by City staff during the Negotiation Period, which may be held telephonically, and (2)
meetings of the City governing body, when reasonably requested to do so by City staff.
8. Developer to Pay All Costs and Expenses. 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 and/or design
activities, drawings, specifications or other activity or matter relating to the 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 Amended Agreement or in the Developer's discretion, regarding any matter relating
to a DDA, the Property 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 Amended 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 Property or the Project or negotiation of a DDA that may be undertaken by the Developer
during the Negotiation Period, whether or not this Amended Agreement is, eventually, terminated or
extended or a DDA is entered into between the City and the Developer, in the future.
9. 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, lease or redevelopment of
the Property. The term “negotiate,” as used in this Amended 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 Property or that person’s redevelopment of the Property,
without the Developer’s prior written consent. Developer acknowledges that City may receive and
retain unsolicited offers regarding redevelopment of the Property, but shall not entertain any offer
or negotiate with the proponent of any such offer during the Negotiation Period; provided,
however, that the City may notify such proponent that it is a party to this Amended 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 efforts 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.
10. Acknowledgments and Reservations.
(a) The City and the Developer agree that, if this Amended Agreement expires or is
terminated 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, lease or other disposition of the Property or
the redevelopment of the Project or the Property; provided, however, that in the event this Amended
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(a) of this Amended Agreement.
(b) The Developer acknowledges and agrees that no provision of this Amended
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 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
Property.
(c) The Developer acknowledges and agrees that the Developer has not acquired, nor
will acquire, by virtue of the terms of this Amended 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 Property must conform to all 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 Amended Agreement shall be considered approval of any plans or specifications for the
Project or of the Project itself by the City.
(e) The Parties agree and acknowledge that the City will cooperate with
Developer in the development of any plans for the Project by using its best efforts to provide any
information in its possession or control that would customarily be furnished to persons requesting
information from the City concerning their respective goals, matters of a similar nature relating to
development plans or as required by law to be disclosed, upon request or otherwise.
(f) 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
Property 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 lease of the Property and redevelopment of the Project on
the 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.
11. 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 Amended Agreement.
12. City Breach - Limitation on Damages and Remedies.
(a) THE DEVELOPER AND THE CITY ACKNOWLEDGE THAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES
THAT WOULD BE SUFFERED BY THE DEVELOPER UPON THE BREACH OF THIS AMENDED
AGREEMENT BY THE CITY. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO
ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE BREACH
OF THIS AMENDED AGREEMENT BY THE CITY, THE DEVELOPER AND THE CITY AGREE
THAT A REASONABLE ESTIMATE OF THE DEVELOPER’S DAMAGES IN SUCH EVENT IS
TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) (THE “LIQUIDATED DAMAGES
AMOUNT”). THEREFORE, UPON THE BREACH OF THIS AMENDED AGREEMENT BY THE
CITY, THE CITY SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER
AND THIS AMENDED AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED
DAMAGES AMOUNT SHALL BE THE DEVELOPER’S SOLE AND EXCLUSIVE REMEDY
ARISING FROM ANY BREACH OF THIS AMENDED AGREEMENT BY THE CITY.
____________________
Initials of Authorized
Representative of City
____________________
Initials of Authorized
Representative of Developer
(b) THE CITY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE
THAT THE CITY WOULD NOT HAVE ENTERED INTO THIS AMENDED AGREEMENT, IF IT
WERE TO BE LIABLE TO THE DEVELOPER FOR ANY ADDITIONAL MONETARY DAMAGES,
MONETARY RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AMENDED
AGREEMENT AND PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY,
THE CITY AND THE DEVELOPER AGREE THAT THE DEVELOPER’S SOLE AND EXCLUSIVE
RIGHT AND REMEDY UPON THE BREACH OF THIS AMENDED AGREEMENT BY THE CITY IS
TO TERMINATE THIS AMENDED 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 THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
(d) CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS
THE INTENTION OF THE DEVELOPER TO BE BOUND BY THE LIMITATION ON DAMAGES,
RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 12, AND THE DEVELOPER
HEREBY RELEASES ANY AND ALL CLAIMS AGAINST THE CITY FOR ADDITIONAL
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF
RELATED TO ANY BREACH OF THIS AMENDED AGREEMENT, EXCEPT RECEIPT OF THE
LIQUIDATED DAMAGES AMOUNT, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE
KNOWN OR UNKNOWN TO THE DEVELOPER AS OF THE EFFECTIVE DATE OF THIS
AMENDED AGREEMENT. THE DEVELOPER SPECIFICALLY WAIVES THE BENEFITS OF
CALIFORNIA CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL
DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT WITH REGARD TO THE
LIMITATIONS ON DAMAGES AND REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND
REMEDIES CONTAINED IN THIS SECTION 12.
____________________
Initials of Authorized
Representative of City
____________________
Initials of Authorized
Representative of Developer
13. Developer Breach – Limitation on Damages and Remedies.
(a) THE DEVELOPER AND THE CITY ACKNOWLEDGE THAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF
DAMAGES THAT WOULD BE SUFFERED BY THE CITY UPON THE BREACH OF THIS
AMENDED AGREEMENT BY THE DEVELOPER. HAVING MADE DILIGENT BUT
UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE CITY
WOULD SUFFER UPON THE BREACH OF THIS AMENDED AGREEMENT BY THE
DEVELOPER, THE DEVELOPER AND THE CITY AGREE THAT A REASONABLE
ESTIMATE OF THE CITY’S DAMAGES IN SUCH EVENT IS TWENTY-FIVE THOUSAND
DOLLARS ($25,000.00) (THE “LIQUIDATED DAMAGES AMOUNT”). THEREFORE,
UPON THE BREACH OF THIS AMENDED AGREEMENT BY THE DEVELOPER, THE
DEVELOPER SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE CITY AND
THIS AMENDED AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED
DAMAGES AMOUNT SHALL BE THE CITY’S SOLE AND EXCLUSIVE REMEDY
ARISING FROM ANY BREACH OF THIS AMENDED AGREEMENT BY THE
DEVELOPER.
____________________
Initials of Authorized
Representative of City
____________________
Initials of Authorized
Representative of Developer
(b) THE CITY AND THE DEVELOPER EACH ACKNOWLEDGE AND AGREE
THAT THE DEVELOPER WOULD NOT HAVE ENTERED INTO THIS AMENDED AGREEMENT,
IF IT WERE TO BE LIABLE TO THE CITY FOR ANY ADDITIONAL MONETARY DAMAGES,
MONETARY RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AMENDED
AGREEMENT AND PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY,
THE CITY AND THE DEVELOPER AGREE THAT THE CITY’S SOLE AND EXCLUSIVE RIGHT
AND REMEDY UPON THE BREACH OF THIS AMENDED AGREEMENT BY THE DEVELOPER IS
TO TERMINATE THIS AMENDED AGREEMENT AND RECEIVE THE LIQUIDATED DAMAGES
AMOUNT.
(c) THE CITY 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 THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
(d) CALIFORNIA CIVIL CODE SECTION 1542 NOTWITHSTANDING, IT IS
THE INTENTION OF THE CITY TO BE BOUND BY THE LIMITATION ON DAMAGES,
RECOVERY AND REMEDIES SET FORTH IN THIS SECTION 12, AND THE CITY HEREBY
RELEASES ANY AND ALL CLAIMS AGAINST THE DEVELOPER FOR ADDITIONAL
MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF
RELATED TO ANY BREACH OF THIS AMENDED AGREEMENT, EXCEPT RECEIPT OF THE
LIQUIDATED DAMAGES AMOUNT, WHETHER OR NOT ANY SUCH RELEASED CLAIMS WERE
KNOWN OR UNKNOWN TO THE CITY AS OF THE EFFECTIVE DATE OF THIS AMENDED
AGREEMENT. THE CITY SPECIFICALLY WAIVES THE BENEFITS OF CALIFORNIA CIVIL
CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER
STATE OR FEDERAL) OF SIMILAR EFFECT WITH REGARD TO THE LIMITATIONS ON
DAMAGES AND REMEDIES AND WAIVERS OF ANY SUCH DAMAGES AND REMEDIES
CONTAINED IN THIS SECTION 12.
____________________
Initials of Authorized
Representative of City
____________________
Initials of Authorized
Representative of Developer
14. Default.
(a) Failure or delay by either Party to perform any material term or provision of this
Amended Agreement shall constitute a default under this Amended Agreement. If the Party who is receives
notice of a default from the other Party cures, corrects or remedies the alleged default within fifteen (15)
calendar days after receipt of written notice by the other Party specifying such default, such Party shall not
be in default under this Amended Agreement. The notice and cure period provided in the immediately
preceding sentence shall not, under any circumstances, extend the Negotiation Period. If there are less than
fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section 14(a)
shall be automatically reduced to the number of days remaining in the Negotiation Period. Nothing in this
subparagraph (a) prohibits the parties from extending the Negotiation Period by mutual agreement
in accordance with subparagraph 3(b) above.
(b) The Party claiming that a default has occurred shall give written notice of default
to the Party claimed to be in default, specifying the alleged default. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default. However, the injured Party shall
have no right to exercise any remedy for a default under this Amended Agreement, without first delivering
written notice of the default and allowing the applicable period to cure any such default as set forth in
Section 14(a).
(c) Any failure or delay by a Party in asserting any of its rights or remedies as to any
default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
(d) If a default of either Party remains uncured for more than fifteen (15) calendar days
following receipt of written notice of such default, a “breach” of this Amended Agreement by the defaulting
Party shall be deemed to have occurred. In the event of a breach of this Amended Agreement, the sole and
exclusive remedy of the Party who is not in default shall be to terminate this Amended Agreement 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 entitled to receive the Liquidated Damages Amount.
15. Compliance with Law. The Developer acknowledges that any future DDA, if approved
by the governing body of the City, will require the 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, environmental laws, safety laws and federal and state labor and wage laws.
16. Press Releases. The Developer agrees to obtain the approval of the City Manager or his
or her designee or successor in function of any press releases Developer may propose relating to the lease
or redevelopment of the Property or negotiation of a DDA with the City, prior to publication. The rights
and obligations in this provision shall not apply to leasing and marketing brochures and/or information
distributed by email or placed online on a brokerage website or real estate website such as LoopNet.com.
17. Notice. All notices required under this Amended Agreement shall be presented in person,
by nationally recognized overnight delivery service or by facsimile and confirmed by first class certified or
registered United States Mail, with return receipt requested, to the address and/or fax number for the Party
set forth in this Section 17. Notice shall be deemed confirmed by United States Mail effective the third
(3rd) business 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 notifying the other Party in writing. Delivery of notices to courtesy
copy recipients shall not be required for valid notice to a Party
TO DEVELOPER: Jamboree Housing Corporation
17701 Cowan Ave,. Suite 200
Irvine, CA 92614
Attn: Roger Kinoshita
Email: rkinoshita@jamboreehousing.com
TO CITY:
Benjamin Siegel, City Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Email: Bsiegel@sanjuancapistrano.org
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 party any money or other consideration for
obtaining this Amended Agreement. Third parties, for the purposes of this Section 18, 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 Amended Agreement by delivering to the City three (3) original counterpart executed
copies of this Amended Agreement signed by the authorized representative(s) of the Developer.
20. Counterpart Originals. This Amended Agreement may be executed by the City and the
Developer in multiple counterpart originals, all of which together shall constitute a single agreement.
21. No Third-Party Beneficiaries. Nothing in this Amended 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 Amended
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 Amended 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.
23. Waivers. No waiver of any breach of any term or condition contained in this Amended
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 Amended Agreement. No extension of the time for
performance of any obligation or act, no waiver of any term or condition of this Amended Agreement, nor
any modification of this Amended 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 Amended
Agreement are solely for the convenience of reference of the City and the Developer and are not a part of
this Amended Agreement. Whenever required by the context of this Amended Agreement, the singular
shall include the plural and the masculine shall include the feminine and vice versa. This Amended
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 Amended Agreement. Unless otherwise
indicated, all references to sections are to this Amended Agreement. All exhibits referred to in this
Amended Agreement are attached hereto and incorporated 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 Amended 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’ Fees. If either Party hereto files any action or brings any action or proceeding
against the other arising out of this Amended 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. For the 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.
25. Enforced Delay. No Party shall be deemed in default of its obligations under this Amended
Agreement where a delay or default is due to an act of God, natural disaster, accident, breakage or failure
of equipment, enactment of conflicting federal or state laws or regulations, third-party litigation,
administrative action or any related statute, strikes, lockouts or other labor disturbances or disputes of any
character, interruption of services by suppliers thereof, unavailability of materials or labor, unforeseeable
and severe economic conditions, rationing or restrictions on the use of utilities or public transportation
whether due to energy shortages or other causes, war, civil disobedience, riot, or by any other severe and
unforeseeable occurrence that is beyond the control of that party (collectively, “Enforced Delay”).
Performance by a party of its obligations shall be excused during, and extended for a period of time equal
to, the period (on a day-for-day basis) for which the cause of such Enforced Delay is in effect.
[Signatures on following page]
THE CITY OF SAN JUAN CAPISTRANO
EXCLUSIVE NEGOTIATION AGREEMENT
(City Hall Site)
IN WITNESS WHEREOF, the City and the Developer have executed this Amended Agreement on
the dates indicated next to each of the signatures of their authorized representatives, as appear below.
Dated:
DEVELOPER:
JAMBOREE HOUSING CORPORATION,
a California nonprofit public benefit corporation
By:_____________________________________
Name:________________________________
Its:___________________________________
Dated:
CITY:
THE CITY OF SAN JUAN CAPISTRANO
By:_____________________________________
Name:________________________________
Its:___________________________________
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
By:
City Attorney
EXHIBIT A
EXHIBIT “A”
TO
AMENDED EXCLUSIVE NEGOTIATION AGREEMENT
Property Legal Description
2.5 Acre Portion of Assessors Parcel Number 668-101-23 Described as N TR 103 BLK LOT 60
EXHIBIT “B”
TO
AMENDED EXCLUSIVE NEGOTIATION AGREEMENT
Project Description
[To Be Attached Behind This Cover Page]
23231 South Pointe Dr.
Laguna Hills, CA 92653
www.adcollaborative.com
SAN JUAN CAPISTRANO, CA
11-09-2020
ADC #: 190018
PASEO ADELANTO MIXED-USE PSH 01CONCEPTUAL SITE PLAN
0 20
40
80
PROJECT SUMMARY
UNIT MIX
PARKING SUMMARY
ZONING:VHD
SITE AREA: +/- 2.47 ACRES
TOTAL UNITS: 50 DU
DENSITY: 20.2 DU/AC
CITY HALL: +/- 11,500 S.F.
BUILDING: 1 & 3 STORY ON GRADE
LEASING & SERVICES: +/- 4,000 SF
TOTAL PARKING: 118 SPACES
1BR + 1BA (+/- 575 S.F.)
2BR + 1BA (+/- 750 S.F.)
49 UNITS (98 %)
1 UNITS (2 %)
TOTAL: 50 UNITS (100 %)
PARKING:
EXISTING SURFACE PARKING 119 SPACES
REQUIRED PARKING
RES. PARKING:
0.5 STALLS/UNIT 20 SPACES
CITY HALL 58 SPACES
TOTAL REQUIRED 78 SPACES
PARKING PROVIDED:
OPEN SURFACE 92 SPACESPASEO ADELANTOTRABUCO CREEK TRAILCITY HALL
1-STORIES
(+/- 11,500 S.F.)
LEASING &
SERVICES
(+/- 4,000 S.F.)
COURTYARDCITY HALL PARKING
(58 SPACES)
FIRE TRUCK
TURN-AROUND AND
SPORT COURT
PLAZA
EXHIBIT “C”
TO
AMENDED EXCLUSIVE NEGOTIATION AGREEMENT
Letters Authorizing Use of the 90-Day Agreement Extension Pursuant to
Paragraph 3(b) of the Original Agreement
[To Be Attached Behind this Cover Page]
January 6, 2021
Jamboree Housing Corporation
Roger Kinoshita
17701 Cowan Ave., Suite 200
Irvine, CA 92614
Re: Exclusive Negotiation Agreement between the City of San Juan Capistrano and
Jamboree Housing Corporation
Dear Mr. Kinoshita:
The Exclusive Negotiating Agreement (“Agreement”) between the City of San Juan Capistrano
(“City”) and Jamboree Housing Corporation (“Developer”) involving the City Hall site is due to
expire on January 8, 2021. Pursuant to Section 3 of the Agreement, the parties to the
Agreement may extend the Negotiating Period for up to two (2) additional ninety (90)
calendar day periods by mutual agreement so long as the Developer is diligently discharging
its responsibilities under the Agreement. As the proposed City Hall/affordable housing
concept is still being developed and Developer has, to date, diligently discharged its
responsibilities under the Agreement in a manner satisfactory to the City, it is appropriate to
exercise the second 90‐day extension as permitted under Section 3 of the Agreement. By
mutually agreeing to this extension, the new expiration date of the Agreement will be April 9,
2021. At this time, the City does not require an Extension Deposit it is otherwise entitled to
under Section 2(b) but reserves the right to require additional funds as processing of the
proposed project proceeds.
If you agree to this extension, please sign and date below and return this letter to Project
Manager Laura Stokes at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 by January 8,
2021. You may scan and email your response to Lstokes@SanJuanCapistrano.org, but please
ensure we receive your signed original as soon as possible. If you have any questions or
concerns, please contact Ms. Stokes at (949) 443‐6313.
Sincerely,
Benjamin Siegel
City Manager
Exclusive Negotiation Agreement between the City of San Juan Capistrano and Jamboree Housing Corp.
Page 2 of 2
By signing below, I am agreeing to the terms outlined above.
_________________________ ________________
Signature Date
_________________________ ________________
Print Name Title
cc: City Attorney
EXHIBIT “D”
TO
EXCLUSIVE NEGOTIATION AGREEMENT
Milestone Schedule
MILESTONE DESCRIPTION
Within 60 Days of Effective Date (_____) of ENA
Initial Pro Forma Submit initial pro forma for the proposed development.
Project Development
Schedule
Submit projected construction schedule for the proposed development.
Due Diligence Provide written determination of property's physical suitability for development,
taking into account relevant regulatory and environmental conditions.
Full Project Submittal Submit site plans and elevations. Submit all relevant applications and fees.
Plan Review Staff reviews plans for compliance with applicable codes and regulations; letter
prepared by Project Manager summarizing staff comments is sent to developer.
Within 180 Days of Effective Date of ENA
Revised Site Plans and
Elevations
Submit revised site plans and elevations
2nd Plan Review Staff reviews plans for compliance with applicable codes and regulations; letter
prepared by Project Manager summarizing staff comments is sent to developer.
Revised Proforma and
Development Schedule
Submit refined proforma and development schedule based on revised site plans
and elevations.
Development Partners
and Structure
Submit letter identifying investment partners.
Funding Partners and
Structure
Submit letter identifying potential lenders and a plan for Developer to obtain financing
Draft DDA Complete negotiations and draft Disposition and Development Agreement.
Final Revisions Finalize revisions to development proposal and all relevant materials
City Council Hearing Present development proposal and DDA to City Council for final
review and approval.
ATTACHMENT 2