HomeMy WebLinkAboutPetaluma Ecumenical Properties 2014-02-15 (%O 1,� 13 ( K - l lv7
AMENDED AND RESTATED EXCLUSIVE NEGOTIATING AGREEMENT
(City of Ukiah)
This Am� d and Restated Exclusive Negotiating Agreement ("AgreemenY') is
made as of ,e Y / , 2014 (the "Agreement Date"), between the
City of Ukiah, a municipal orporation ("Owner") and Petaluma Ecumenical
Properties, a California nonprofit public benefit corporation("Developer"). This
Agreement amends and restates in its entirety the Exclusive Negotiating Agreement
between the parties dated as of January 16, 2014 (the "Original AgreemenY').
RECITALS:
A. The Owner is the fee owner of the following pazcels of real property
located in the City of Ukiah: Assessor's Pazcel Nos. 002-281-015-Tr. 1, 001-281-018,
002-281-024, 002-281-028, and 002-281-029-Tr. 2 (collectively,the "Property").
B. The Owner desires to support the development of affordable housing and
other residential units on the Property. The Owner has contacted the Developer as the
potential developer of such housing.
C. The parties are entering into this Agreement to allow the Developer to
determine the feasibility of developing housing on the Property.
For good and valuable consideration, the Owner and the Developer agree as
follows:
1. AQreement to Ne otg iate• The Owner and the Developer agree that for the Term
of this Agreement, they shall negotiate diligently and in good faith to determine the
feasibility and terms of the Developer's acquisition of the Property and the ownership,
development and operation of the Development on the Property. During the Term the
Owner agrees to negotiate exclusively with the Developer, and not with any other person
or entity, with regazd to the disposition and development of the Property.
2. Terxn. The term of this Agreement ("Term") shall begin on the Agreement Date
and shall terminate at 5:00 p.m, on the first anniversary of such date. The Term may be
extended by the mutual consent of the parties by a written amendment to this Agreement.
3. Proposed Development. The Developer would develop approximately 42
affordable senior rental units, together with related amenities (the "DevelopmenY'), on
the Property. The parties understand that the scope of the Development will be updated
and refined based on the activities undertaken during the Term of this Agreement.
AttachmentNl ENA-Ukiah-redREVdr 1
4. Disposition of the Property. If Owner and Developer successfully negotiate and
enter an agreement for the disposition and development of the Property, the Owner has
I agreed to sell the-Property to the Developer for a purchase Price of One Dollaz($1.00).
5. Scope of Neeotiations. During the Term,the parties shall negotiate in good faith
with the intention of developing a memorandum of understanding("MOU") outlining
their respective rights and obligations with respect to the Development. The parties
anticipate that the MOU will address the following responsibilities, in addition to such
other provisions as desired by either or both parties:
(a) A determination of the type of housing to be constructed (rental or for-
sale), the number of units, and restrictions on the income levels of
potential residents;
(b) The process for determining the design of the Development;
(c) The process and responsibility for conducting community outreach efforts
for support of the Development;
(d) The process and responsibility for obtaining necessazy governmental
approvals and entitlements for the development of the Property, including
any necessazy environmental review, land use or zoning approvals;
(e) The process and responsibility for subdividing the Property, if required in
order to develop and finance the Development;
(fj Determining the cost and financing structure (including anticipated
sources an and amounts) for the Development; and
(g) A schedule for each of the foregoing responsibilities.
6. Due Diligence Information.
(a) The Owner shall provide to the Developer all due diligence materials
prepared or obtained by or on the Owner's behalf with respect to the
Property, including but not limited to any environmental, geotechnical,
soils or other reports regarding such property.
(b) During the Term,the Developer and its agents, employees, and
consultants may perform a11 commercially reasonable due diligence
activities with respect to the Property, including but not limited to
reviewing the condition of title and entering the Property to perform
inspections,tests and appraisals of the Property, including invasive testing,
and to make any other investigations necessary to determine if the
Property is suitable, in the Developer's sole discretion, for the proposed
development of the Properiy. The Developer shall provide to the Owner
Attachmen[#ICNA-Ukiah-redREVdr 2
a11 information acquired or prepared by Developer in performing its due
diligence.
(c) The Developer shall indemnify, hold harmless and defend the Owner from
and against any and a11 claims, demands, losses, liabilities, damages
(including foreseeable and unforeseeable consequential damages), costs,
liens, obligations, interest, injuries, penalties, fines, lawsuits and other
proceedings,judgments and awards and costs and expenses ("Losses")
azising out of the Developer's actions under this Section 6. The
Developer's obligations under this section shall not apply to the extent that
any Losses aze caused by the sole and active negligence or misconduct of
the Owner. The provisions of this Section 6(c) shall survive the
termination of this Agreement.
7. Termination of Neeotiations. If at any time prior to expiration of the Term the
Developer determines, in good faith, that it does not desire to construct the Development,
then the Developer may terminate this Agreement upon written notice to the Owner.
8 Expiration. If as of the expiration of the Term the parties have not entered into
the MOU or extended the Term pursuant to Section 2,then this Agreement shall
terminate as of the expiration of the Term.
9. Costs and Expenses. Each pariy shall be responsible for its own costs and
expenses in connection with any activities and negotiations undertaken in connection
with the performance of its obligations under this Agreement, and agrees that it sha11
receive no compensation from the other party for any activities performed in connection
with this Agreement.
10. Notices. All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered or sent by registered or certified
mail, postage prepaid, return receipt requested, or electronic mail, shall be deemed
received upon(i) if personally delivered, the date of delivery to the address of the person
to receive such notice, (ii) if mailed, three (3)business days after the date of posting by
the United States post office, (iii) if given by electronic mail, when sent, or(d) if
delivered by overnight delivery, one (1) business day after mailing. Any notice,request,
demand, direction or other communication sent by electronic mail must be confirmed by
letter mailed or delivered within two (2) business days of such electronic mail notice in
accordance with subsection(i) or(ii).
To Owner: The City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Attn: Sage Sangiacomo
Email: Ssan iacomo ,citvofukiah.com
To Developer: Petaluma Ecumenical Properties
951 Petaluma Blvd. South
Attachment H 1 ENA-UAiah-redREVdr 3
Petaluma, CA 94952
Attn: Mary Stompe, Executive Director
Email: marvs(cr�pephousin .�org
11. 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 defauh to the
defaulting party, specifying the nature of the default and the action required to cure the
default. If the default remains uncured ten(10) days after the date of such notice,then
the sole remedy of the non-defaulting party shall be to terminate this Agreement.
Following such termination, neither party shall have any fizrther rights, remedies or
obligations under this Agreement. Except with respect to Developer's obligating to
provide due diligence information to Owner, neither party sha11 have any liability to the
other for monetary damages or specific performance for the breach of this Agreement,
and each party hereby waives and releases any such rights or claims it may otherwise
have at law or at equity.
12. Time of Essence. Time is of the essence in the performance of this Agreement
13. Entire Agreement. This Agreement constitute the entire understanding and
agreement of the parties with respect to the development of the Property, 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.
14. Countemarts. This Agreement may be executed in counterparts.
15. Original Aereement. As of the date of this Agreement the Original Agreement
shall terminate and be of no fiirther force or effect.
Signatures on Following Page
Attachmen[It l ENA-Ukiah-redREVdr 4
In witness whereof,the parties have executed this Agreement as of the Agreement
Date.
THE CITY OF UKIAH,
a municipal corporation�
By: �/a..t � "
e Chambers
Title: City Manager
Approved as to form•
Da � , apport, Ci ttoA rn@y
PETALUMA ECUMENICAL PROPERTIES, a California
nonprofit public bene ' corporation
By:
Title: �Q 1��2 ctf,(.JJ
Attachmen[#1 ENA-Ukiah-redRBVdr 5