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HomeMy WebLinkAbout20C - AA AMEND AGMT CARIBOU INDUSTRIESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 16, 2018 TITLE: APPROPRIATION ADJUSTMENT AND AMENDED AND RESTATED EXCLUSIVE NEGOTIATION AGREEMENT AND AMENDED REIMBURSEMENT AGREEMENT WITH CARIBOU INDUSTRIES FOR THE THIRD STREET AND BROADWAY DEVELOPMENT (STRATEGIC PLAN NO. 3,5A) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: T15-TZT*0_M ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute an amended and restated Exclusive Negotiation Agreement (ENA) (Exhibit 1) and an amended Reimbursement Agreement (Exhibit 2) with Caribou Industries for the Third and Broadway development, subject to non -substantive changes approved by the City Manager and City Attorney. 2. Approve an appropriation adjustment recognizing $100,000 in Miscellaneous Revenue Expense Reimbursement account (no. 01102002-57000) and appropriate the same amount to the Community Development Agency's Economic Development Contract Services expenditure account (no. 01118810-62300) for the reimbursement agreement with Caribou Industries. DISCUSSION On September 16, 2014, the City Council directed the Planning and Building Agency (PBA) to release a Request for Qualifications (RFQ) for the Third and Broadway Development Project. The, RFQ outlined several project components desired by the City Council. Among the components of the new project was a desire to include a hotel/hospitality component. Five proposals were received and only the Caribou Industries Inc. proposal included a hotel. On March 21, 2017, the City Council authorized the City Manager and Clerk of the Council to enter into an Exclusive Negotiation Agreement (ENA) with Caribou Industries for the Third and Broadway project pursue negotiations. To assist with the negotiations, the City entered into a contract with consultant Lisa Stipkovich to lead negotiations for the City and identify transaction business terms. Since August 2017, Ms. Stipkovich and City staff have met regularly with Caribou Industries to finalize the proposed project business terms. 20C-1 Amended and Restated ENA with Caribou January 16, 2018 Page 2 During negotiations, it was mutually determined that several developer deliverables described in the original Exclusive Negotiation Agreement (ENA) (such as submittal of a complete development application and provision of a written commitment from a recognized hotel chain) were not attainable at this point in the negotiation process. Staff and Caribou agreed that an ENA incorporating modified business terms should be prepared and presented for City Council consideration. Kosmont Companies, a land economics consulting firm, was retained to provide a financial feasibility analysis of the Caribou proposal. In their analysis, Kosmont has validated that the proposed project, which requires the demolition of the current parking structure and replacement of 253 public spaces and the reconnection of Sycamore Street, has a significant financial gap and a subsidy is required. Below is a summary of the proposed transaction business terms. Summary of Proposed Business Terms Proposed Project: Land Use: Mixed Use Residential units: 160 apartments with 160 dedicated parking spaces Office: 3,449 sq. ft. Retail: 11,066 sq. ft. Food and beverage: 4,309 sq. ft. Public Parking: 253 spaces Hotel: 106 keys with 99 stacker parking spaces City Responsibilities The City will fund the costs for public improvements to ready the site for development. This will include the demolition of the existing parking structure, preparation of the site for development, the construction of Sycamore Street reconnection and construction of 253 public parking spaces to replace the existing parking currently provided at the 3rd and Broadway parking structure. The estimated cost for public improvements is $7 million for the construction of the 253 public parking spaces and $6 million for the additional public improvements. The estimated debt service (at an interest rate of 4%) for the public improvements would be $750,000 per year for 30 years. Developer Responsibilities The developer's obligations for the project include providing funding to finance the over $100 million dollar development project, processing all entitlements, construction of the public improvements, designing and operating a boutique hotel, and managing and operating the public parking for the project. The developer will guarantee that the anticipated revenues from the parking will cover the City's annual debt service of $750,000. There will be no out of pocket costs to the City. ENA Extension and Next Steps The ENA extends the term of the negotiation period to July 31, 2018. During this time, in addition to negotiating more detailed business terms, the Developer will also apply for and process an application for land use entitlements, including CEQA review. 20Ci-2 Amended and Restated ENA with Caribou January 16, 2018 Page 3 The next step in the process will be to prepare and present a Disposition and Development Agreement (DDA) with more detailed business terms to City Council for consideration in mid - 2018. The DDA will further describe the terms of the transaction, including a schedule of completion with milestones for the developer to achieve. The City will not convey the site until the developer has met all obligations defined in the DDA, obtained all approved permits and entitlements, and provided proof of financing for construction of the project. Reimbursement Agreement In April 2017, the City entered into a reimbursement agreement with Caribou Industries for costs associated with the negotiation and execution of a DDA, such as expenses for engineers, architects, financial consultants, legal, planning and other consultants and contractors retained by the City. Staff is proposing to increase the maximum reimbursement from $50,000 to $100,000. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 (Economic Development), Objective #5 (Leverage private investment that results in tax base expansion and job creation citywide), Strategy A (Identify and market underutilized properties for new development that will create new jobs and expand the City's tax base). FISCAL IMPACT Caribou Industries agreed to reimburse the City for all eligible expenses incurred related to the original exclusive negotiation agreement and a reimbursement agreement was executed in April 2017. Caribou agreed to reimburse the City up to $50,000 for consulting services related to this project, such as those provided by Lisa Stipkovich and Kosmont Companies. The City has and will pay both consultants for services provided from the Economic Development, Contract Services account (no. 01118810-62300). Approval of the appropriation adjustment and the amended reimbursement agreement will recognize $100,000 in the Miscellaneous Revenue Expense Reimbursement account (no. 01102002-57000) and appropriate the same amount to the Community Development Agency's Economic Development Contract Services expenditure account (no. 01118810-62300) in FY 2017-18. Robert M. Zur Scl mi dkj Interim Executive DtKector Community Development Agency APPRO ED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez po Executive Director Finance and Management Services Agency Exhibit: 1. Amended and Restated ENA 2. Amended Reimbursement Agreement with Caribou 20C-3 20C-4 SECOND AMENDED AND RESTATED EXCLUSIVE NEGOTIATION AGREEMENT This Second Amended and Restated Exclusive Negotiation Agreement ("Agreement") is dated 1061111 , 2018, for reference purposes only, and is entered into by and among the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ("City"), and CARIBOU INDUSTRIES, INC., a Nevada Corporation ("Developer"), in order to provide a specified period of time to attempt to negotiate a disposition and development agreement ("DDA"). City and Developer are sometimes referred to in this Agreement individually, as a "Party" and, collectively, as the "Parties." This Agreement is entered into by the Parties with reference to the following recited facts (each, a "Recital"): RECITALS WHEREAS, the intent of the Parties in entering into this Agreement is to establish a specific, limited period of time to negotiate regarding a future agreement among them governing the potential acquisition and development of certain real property, subject to mutually agreeable terms, conditions, covenants, restrictions and agreements to be negotiated and documented in a future DDA; and WHEREAS, the property contemplated is located at 201 West Third Street, Santa Ana, California 92701 (APN 398-264-13) ("Property"); and WHEREAS, City owns the Property; and WHEREAS, the Property is more particularly described in the legal description attached to this Agreement as Exhibit "A' and incorporated into this Agreement by this reference; and WHEREAS, Developer proposes to develop a mixed use project, including a hotel, commercial, retail, residential, and public parking, on the Property ("Project"); and WHEREAS, the Parties now agree to enter into this Agreement for the purpose of further planning and evaluating the feasibility of the proposed Project, including farther negotiation of deal points and environmental review of the projects in preparation for the DDA; and WHEREAS, the Developer has represented its willingness and ability to undertake certain studies, plans and other activities necessary to define the scope of development and determine the feasibility of the Project on the Property and that such plans and other information to be prepared during the course of this Agreement shall serve as the basis for entering into a DDA among City and Developer; and WHEREAS, City is willing to continue the period of exclusive negotiations with Developer concerning Developer's potential development of the Project, subject to the terns and conditions of this Agreement. Exhibit 1 20C-5 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 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. 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 ("Effective Date': (1) execution of this Agreement by the authorized representative(s) of the Developer and delivery of such executed Agreement to the City, and (2) approval of this Agreement by the City's execution of this Agreement by its respective authorized representatives and delivery of such executed Agreement to the Developer. The City shall deliver a fully executed counterpart original of this Agreement to the Developer, within ten (10) calendar days after the governing bodies of the City have approved this Agreement, and their. authorized representatives have executed this Agreement. This Agreement shall continue in effect until July 31, 2018 ("Negotiation Period"), subject to the limitations of Section 2(b). (b) Upon the Effective Date, the City and Developer shall proceed with continued negotiations according to the Schedule of Performance outlined in Exhibit `B" attached herewith and incorporated herein by reference. (c) The Negotiation Period may be extended upon the mutual written agreement of the CityManager and the Developer for up to three (3) additional ninety (90) calendar day periods, as needed to complete the DDA negotiations and environmental review of the Project. (d) This Agreement shall automatically expire and be of no further force or effect at the end of the Negotiation Period (as may be extended pursuant to the terms of this Agreement), unless, prior to that time, the City and the Developer approve and execute a separate DDA acceptable to the two Parties, in their respective sole and absolute discretion, in which case this Agreement will terminate on the effective date of such DDA, Negotiation of DDA. (a) During the Negotiation Period, the Parties shall negotiate diligently and in good faith to negotiate a DDA among them. The Parties shall generally cooperate with each other and supply such documents and information as may be reasonably requested by the other to facilitate the conduct of the negotiations. The Parties shall exercise reasonable efforts to complete discussions relating to the terms and conditions of a DDA and such other matters, as may be mutually acceptable to the Parties, in their respective sole discretion. The deal points attached hereto as Exhibit "C" and incorporated herein by reference shall form the basis for the DDA negotiations. However, the exact terms and conditions of a DDA, if any, shall be determined during the course of these continued negotiations. 20C-6 (b) 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, warranty or representation that any proposed DDA that may be negotiated by City staff and the Developer will be approved by the governing bodies of the City. The Developer acknowledges and agrees that the City's considerations of any DDA is subject to the sole and absolute discretion of their City Council and all legally required public hearings, public meetings, notices, factual findings and other determinations required by law. (c) During the Negotiation Period, the Parties shall diligently review and comment on drafts of a DDA prepared by the City Attorney, and if the terms and conditions of such a DDA are agreed upon among the City staff and the Developer, Developer shall submit the DDA fully executed by the authorized representative(s) of the Developer to the City Manager for submission to City Council for review and approval or disapproval. Any future DDA shall consist of terms and conditions acceptable to the Developer and the City Council of the City, in their respective sole and absolute discretion. 4. Environmental Review and CEQA Compliance. During the Negotiation Period, all required environmental review of the Project, including full and complete compliance with the California Environmental Quality Act (CEQA), must be completed and brought to the City Council for review, approval, and certification, prior to, or concurrently with, any request for approval of a DDA for the Project. 5. 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, unless an assignment is approved by the City in its sole and absolute discretion. (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 5(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 Agreement, without liability to the Developer or any other person, by sending written notice of termination to the other Parties, referencing this Section 5(b). 20-G—% (c) Notwithstanding anything in this Agreement to the contrary, Developer may assign its rights under this Agreement to a joint venture partner, lender or other related company entity or an Affiliate (as defined in Section 5(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. (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 direction of the management and policies of an entity, whether by ownership of equity interests, by contract, or otherwise. 6. 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 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 all applications and other documents and information to be submitted to the City and 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 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 among the Parties, in the future. City Not To Negotiate With Others. (a) During the Negotiation Period, the City, and their respective staff shall not negotiate with any other person regarding the sale or development of the 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 that person's development of the Property to the total or partial exclusion of the Developer from redeveloping the Property, without the Developer's written consent, subject to the provisions of Section 7(b) and further provided that they may receive and retain unsolicited offers regarding development of the Property, but shall not negotiate with the proponent of any such offer during the Negotiation Period. (b) Nothing in this Agreement shall limit, prevent, restrict or inhibit the City from providing any information in its possession or control that would customarily be furnished r i. 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. 8. Acknowledgments and Reservations. (a) The Parties agree that, if this Agreement expires or is terminated for any reason, or a future DDA is not approved and executed by the Parties, for any reason, none of the Parties shall be under any obligation, nor have any liability to each other or any other person regarding the sale or other disposition of the Property or the development of the Project or the Property. (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 Property to the Developer or for the City to provide any financial or other assistance to the Developer for development of the Property or execution of the Project. (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 among the Parties, but it is understood and agreed among the Parties that the Project and the development of the Property must conform to all City, and other applicable governmental development, land use and architectural regulations and standards, as may be amended by the Project entitlements processed for the Property. Drawings, plans and specifications for the Project shall be subject to the approval of the City through the standard development application process for acquiring the real estate and entitlements within the Project. 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 information, data and commitments to ascertain the ability and capacity of the Developer to purchase, develop and operate the Property and/or the Project., The City shall maintain the confidentiality of financial information of the Developer to the extent allowed by law, as determined by the City Attorney. Notwithstanding the foregoing, if the City receives a request for documents related to this Agreement or the Project pursuant to the California Public Records Act (Govt. Code Section 6254 et. seq) or similar statute, and the City determine that the City has responsive documents, the City shall provide Developer notice not less than three (3) days prior to releasing the responsive documents to the requesting party. During this three (3) day period Developer may seek a court order prohibiting the release of the documents. Any litigation or costs associated with protecting documents from disclosure shall be bome solely by Developer. (f) The Developer expressly acknowledges and agrees that the City will not be bound by any statement, promise or representation made by their respective staff or representatives during the course of negotiations of a future DDA and. that the City shall only be legally bound 20-G-9 upon the approval of a complete DDA by the City Council, in their respective sole and absolute discretion, following one or more duly noticed public hearings, as required by law. 9. 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 undertaldng its obligations under this Agreement. 10. Limitation on Damages and Remedies. (a) THE PARTIES 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 AGREEMENT BY THE CITY. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE DEVELOPER WOULD SUFFER UPON THE BREACH OF THIS AGREEMENT BY ANOTHER PARTY, THE PARTIES AGREE THAT A REASONABLE ESTIMATE OF THE DEVELOPER'S DAMAGES IN SUCH EVENT IS ONE HUNDRED THOUSAND DOLLARS ($100,000) (THE "LIQUIDATED DAMAGES AMOUNT"). THEREFORE, UPON THE BREACH OF THIS AGREEMENT BY THE CITY, THE BREACHING PARTY SHALL PAY THE LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER AND THIS AGREEMENT SHALL TERMINATE. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY THE CITY. Initials of Authorized Ini ' s of Authorized Representative of City R presentative of Developer (b) THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE CITY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, IF EITHER WERE TO BE LIABLE TO THE DEVELOPER FOR ANY MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY OTHER THAN TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE LIQUIDATED DAMAGES AMOUNT. ACCORDINGLY, THE PARTIES AGREE THAT THE DEVELOPER'S SOLE AND EXCLUSIVE RIGHT AND REMEDY UPON THE BREACH OF THIS AGREEMENT BY THE CITY IS TO TERMINATE THIS 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 CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. 200-10 (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 MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE RELIEF RELATED TO ANY BREACH OF THIS 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 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. (e) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN THE EVENT OF A BREACH BY DEVELOPER, DEVELOPER SHALL NOT BE LIABLE OR RESPONSIBLE TO CITY FOR ANY LOST OR FOREGONE TAX REVENUES, ECONOMIC OR COMMUNITY BENEFITS, FEES, CHARGES, OR ANY OTHER AMOUNT. THE PARTIES 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 AGREEMENT BY THE DEVELOPER. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE CITY WOULD SUFFER UPON THE BREACH OF THIS AGREEMENT BY ANOTHER PARTY, THE PARTIES AGREE THAT A REASONABLE ESTIMATE OF THE CITY'S TOTAL DAMAGES IN SUCH EVENT IS THE LIQUIDATED DAMAGES AMOUNT. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY THE DEVELOPER. NOTWITHSTANDING THE FOREGOING, IF DEVELOPER'S BREACH IS A FAILURE TO MAINTAIN THE INITIAL OR ADDITIONAL DEPOSIT REQUIRED BY THIS AGREEMENT, IN ADDITION TO THE LIQUIDATED DAMAGES DEVELOPER SHALL REIMBURSE THE CITY FOR THE ACTUAL INCURRED STAFF TIME AND THIRD PARTY CONSULTANT TIME EXPENDED ON THE PROJECT PRIOR TO THE DATE OF TERMINATION. Initials of Authorized Representative of City 11. Default. of Developer (a) Failure or delay by any Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement. If the Party who is claimed to be in default by another Party cures, corrects or remedies the alleged default within fifteen (15) calendar days after receipt of written notice specifying such default, such Party shall not be in default under this 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 200-11 fifteen (15) days remaining in the Negotiation Period, the cure period allowed pursuant to this Section 13(a) shall be automatically reduced to the number of days remaining in the Negotiation Period. Nothing in this subparagraph (a) shall prohibit Developer from extending the Negotiation Period pursuant to Section 2. (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 Agreement without first delivering written notice of the default. (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 any Party remains uncured for more than fifteen (15) calendar days following receipt of written notice of such default, a "breach" of this Agreement by the defaulting Party shall be deemed to have occurred. In the event of a breach of this Agreement, the sole and exclusive remedy of the Party who is not in default shall be to temninate this 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. 12. Compliance with Law. The Developer acknowledges that any future DDA, if approved by the City Council, will require the Developer to, among other things, cavy 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. 13. Press Releases. The Developer agrees to obtain the approval of the City Manager in function of any press releases Developer may propose relating to the lease or development of the Property or negotiation of a DDA with the City prior to publication. 14. Notice. All notices required under this Agreement shall be presented (A) in person, (B) by a reputable same-day or overnight delivery service, or (C) 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. 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 reputable same-day or overnight delivery service shall be effective upon delivery. Either Party may change its address for receipt of notices by notifying the other Parties in writing. Delivery of notices to courtesy copy recipients shall not be required for valid notice to a Party. 20C-12 TO DEVELOPER: Caribou Industries, Inc. Michael Harrah President 1103 N. Broadway Santa Ana, CA 92701 (-1) (714) 543-9484 (F) (714) 534-9972 TO CITY: The City of Santa Ana Executive Director Community Development Agency 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 COPY TO: City Attorney 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6515 15. 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 Agreement. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and other consultants, when such fees are considered necessary by the Developer. 16. 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 each signed by the authorized representative(s) of the Developer. 17. Counterpart Originals. This Agreement may be executed by the Parties in multiple counterpart originals, all of which together shall constitute a single agreement. 18. No Third -Party Beneficiaries. Nothing in this Agreement is intended to benefit any person or entity other than the Parties. 19. Governing Law. The Parties acknowledge and agree that this Agreement was negotiated, entered into and is to be fully performed in the City of Santa Ana, California. The Parties 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. 20CA 3 20. 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 modification of this Agreement shall be enforceable against a Party, unless made in writing and executed by the Parties. 21. Construction. Headings at the beginning of each section and sub -section of this Agreement are solely for the convenience of reference of the Parties 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 Party, but rather as if the Parties cooperated equally in preparing 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 a Parry 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. 22. Attorneys' Fees. If a Party hereto files any action or brings any action or proceeding against another Party 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. For the purposes hereof the words "reasonable attorneys' fees" mean and include, in the case of the City, salaries (or fees) and expenses of the lawyers employed by the City (allocated on an hourly basis) who may provide legal services in connection with the representation of the City in any such matter. 23. Enforced Delay. No party shall be deemed in default of its obligations under this 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, including 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] 200-14 IN WITNESS WHEREOF, the Parties have executed this Exclusive Negotiation Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. ATTEST: MARIA D. HUIZAR Clerk of the Council M City • •tu FOR APPROVAL: ROBERT ZUR SCHMIEDE Executive Director Community Development Agency CITY OF SANTA ANA RAUL GODINEZ II City Manager DEVELOPER CARIBOU INDUSTRIES By: ( 2 Micha . Harrah Dated: 0108 200-15 EXIIIBIT "A" TO NEGOTIATION AGREEMENT Property Legal Description All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel l: All of Lots 2, 3, 6 and the Southerly 10.00 feet of the Northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5, and 6 in Block 12 of the Town of Santa Ana, as shown on a Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said Map, as vacated and described in that certain Resolution No. 82-17 of the City Council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of Official Records of Orange County, California, bounded Southerlyby the North line of Third Street, 60.00 feet wide, and bounded Northerly by a line parallel with and distant Northerly 140.00 feet, measured at right angles, from said North line of Third Street. Excepting therefrom the Easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the South 2.50 feet of the East 15.00 feet of Lot 3 in Block 11 of the Town of Santa Ana, as shown on Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, as reserved in the Deed of J.E. Lieberg et al, dated June 5, 1923 and recorded in Book 475, page 362 of Deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the Town of Santa Ana, as per Map recorded in Book 2, page 51 of Miscellaneous Records of Los Angeles County, California, which adjoins the East boundary line of the South 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain Agreement, dated July 1, 1919 by and between H.R. Andre, also known as Roy Andre, et al, as parties of the first part, and LJ, Carden et al, as parties of the second part, recorded August 19, 1919 in Book 341, page 362 of Deeds, Records of Orange County, California. 20-C-16 Exhibit B Schedule of Performance The Developer and the City will work on a Disposition and Development Agreement (DDA) and cooperate to process all necessary entitlements. The Developer and City will work to clear CEQA requirements prior to consideration of the DDA by the City Council. The Developer will fund third party consultant who will prepare necessary reports and studies as required for CEQA clearance for the entitlements and the DDA. Both Parties will use their best efforts to process the entitlements for the project as quickly as possible. The schedule will be amended as needed to reflect status of process. Performance Schedule: • Second Amended and Restated ENA on City Council Agenda for January 16, 2018. • Upon execution of ENA, the Developer and City will work on the preparation of a Disposition and Development Agreement. • Within 30 days of execution of the ENA, the Developer will submit an application and Concept Plans to City for all necessary entitlements. • Within 30 days of receipt of the Application, the City must indicate what studies and/or analysis is needed to process the application and select an Environmental Consultant to process the CEQA related studies needed for entitlements. • Within 30 days of the execution of the Second Amended and Restated ENA, the Developer and City will create a schedule for Public participation for the entitlement process. • DDA - Anticipated July 2018 with three additional 3 month extensions (i.e., for a total time to April 2019) if needed to clear CEQA. 20C-17 EXHIBIT C Proposed Deal Points for Public/ Private Partnership: 3rd and Broadway Project Deal Points Summary Overview: The Project is proposed on a City -owned site that currently has a 440 space Parking Structure that needs to be replaced. The City needs to replace at least 200 to 300 spaces for Public Parking. The City also wants to create anew Public Street to reconnect Sycamore St. These requirements have a negative economic impact on any proposed development on this site and will require a public subsidy. Based upon this scope of work (below), the latest pro forma from the Developer, and the ICosmont Company's analysis, the Project without a subsidy has a significant financial GAP. The proposed deal structure would minimize the GAP as follows: the City would segregate typical costs to develop a site such as demolition of the existing parking structure and preparation for development, as well as Public Improvements such as replacement Public Parking and a Public Street (Sycamore St.) as the City's responsibilities. The costs for the City's responsibilities are estimated by the Developer at $13 million. The City cost will be based on the actual cost of the Public Improvements. The City would finance the capital costs thru a Public Financing. The Developer will pay the debt service thru an Operating Agreement whereby the Developer will operate the Public Parking and pay all costs with no financial risk to the City. The subsidy amount is within the feasibility gap as estimated by I{osmont. The Hotel is the biggest economic risk. However, the possibility of future conversion to residential if the Hotel is not economically viable in the first 5 years, provides an economic alternative that helps to mitigate the risk. The Developer would have the responsibility to entitle, develop and finance all private improvements, provide evidence of financing and obtain all necessary building permits prior to the City conveying the site. As part of the Developer's due diligence, the City will agree to allow the Developer to enter the site for necessary tests as appropriate. These terms are attached with the revised ENA which will provide the parameters to negotiate terms of a DDA and will require CEQA clearance for approval by the City Council. 20C-18 Scope of work: Revised project description (the project is subject to Prevailing Wages) • Mixed use Project (Parcel A): • Residential: 160 Units of apartments with 160 dedicated parking spaces (to be constructed pursuant to the City's residential development standards); • Office: 3,449 SF; • Retail: 11,066 SF; • Food and Beverage: 4,309 SF; • Public Parking: 253 spaces Parking (10 stories) and Total 18 Stories; • Hotel (Parcel B): 106 Keys with 99 stacker spaces City responsibilities: Mixed Use /Residential: The City would provide the land and fund the costs to demolishing the existing parking structure, provide the replacement public parking of 253 spaces, conduct site preparation and construct street improvements to reconnect Sycamore between 3rd and 4th Streets. Current estimates are based on the Developer's pro forma and are at $13 million. The City will provide estimates based on 31d party estimates and the 3`a party GAP Analysis. City participation would be based on actual costs up to a maximum of $13 million. Upon the Developer obtaining entitlements, showing. evidence of construction and permanent financing, issuance of all necessarybuilding permits, the Citywould convey the land to Developer for the Mixed Use project. The City will retain ownership of an air rights parcel for the public parking structure. The City will retain ownership of the now section of Sycamore Street to be built as part of the project. Public Improvements: The City would fund the costs of the following improvements at the start of construction: • Demolition of the existing parking structure • Site preparation for construction prepared to a rough grade condition • Construction of 253 public parking spaces in a 10 -story structure • Construction of Public Street :Sycamore reconnection The current costs estimates from the Developer are as follows: $7, 782, 786for 253 Parking Spaces (10 -story structure) $5, 300, 000 for Demo/sate preparationlstreet improvements $13,082,786 total - (All estimates will be independently verified by the City) 20Q-19 Estimated financing- debt services @4% @30 yrs. _ $749,476/annually Estimated parking revenue per Diamond Parking study for the Developerproposal is a $2 million in Annual Gross Revenue and $288,000 for expenses. These estimates are subject to City verification. Developer's Responsibilities: Mixed Use Residential Developer shall fund the design of the project, all costs related to entitlements, and all development costs for the apartments, retail, office and hotel. The City will cooperate with the Developer to process entitlements. The Developer will fund the entitlement application, including, but not limited to, any and all required General Plan and/or zoning amendments, and all related studies required for CEQA compliance. Once the entitlement process is completed, the Developer has financing for the project, and obtained all necessary building permits, as will be detailed in the terms of a DDA, the City will convey to Developer the land and parcels for the residential, office, and retail portions of the project. Conveyance shall occur following the Developer providing evidence of financing for construction, permanent loan(s) and equity and issuance of all necessary building permits. Hotel: Developer will design and build the hotel to standards for a typical boutique hotel similar to a Hilton Garden Inn and will use best efforts to execute an operating agreement with a Hotel Chain. If Developer is not successful in securing an agreement with a Hotel Chain operator, Developer will self -operate as a Boutique Hotel, During the fust 5 years of operation, various economic thresholds would be established that would allow the Developer to convert the Hotel to residential as follow: • after 2 years if the Rev/Par* falls below $65 • after 3 years if the RevPAR falls below $75 • after 4 years if the RevPAR falls below $80 • after 5 years if the RevPAR falls below $85 *Revenue per available room (RevPAR) is a performance metric used in the hotel industry and is calculated by multiplying a hotel's average daily room rate (ADR) by its occupancy rate. It may also be calculated by dividing a hotel's total room revenue by the total number of available rooms in the period being measured. If in the Hotel does not achieve these thresholds during the first 5 years, the Developer will be allowed to submit an application to convert the hotel to apartments, subject to approval through all applicable city entitlement processes required and in accordance with entitlements approved for the site. 20C:-20 The hotel parcel would be conveyed upon entitlement approval, evidence of financing for construction, permanent loan(s) and equity and issuance of all necessary building permits. Operation of the Public Parldng: Developer will manage the Public Parking The City would enter into a Parking Operation Agreement with the Developer to manage and operate the Public Parking and obligate the Developer to pay all costs including the debt service on the financing for the Public Improvements. The Developer would set the parking rates and either manage the parking directly or through a 3rd party. The Developer would guarantee no negative costs of approximately $750,000 per year to the City and would keep any net revenue unless the Hotel is converted to residential per the terms of the DDA (see terms below). The Developer would guarantee the debt service and all operating costs. The cash flow would be distributed in the following order: (1) Operator fee, (2) operating expenses, (3) City debt service and (4) any net revenue to Developer. Only after the 30 year debt is paid off at maturity, the City would receive 40% of the net parking revenue if the parking conversion from hotel to residential has not occurred. In addition, if the Hotel is converted to residential, then 40% of net revenue would go to the City (see terms below). All the revenue and expenses arriving from the parking operations shall be verified through an audit. Conditional Conversion of the Hotel to Residential At the time of issuance of the Certificate of Occupancy for residential use, the net cash flow from the public parking would be split 60%/40% with 60% going to the Developer. The City has independently prepared an estimate of the potential cash flow from a 60/40 split for 30 years based on Public Parking revenue. Option to Purchase the Public Parking The developer would have the Option to purchase the Public Parking at the costs of $15 million for the first 15 years, then the purchase price would be at appraised value or $15 million whichever is higher. The parking will remain Public Parking in perpetuity regardless of the ownership. Terms and conditions to the Option will be negotiated in the DDA. Participation by the City in Profits upon sale of property: 20C-21 The City would participate in profits upon sale of any portion of the project by the Developer, based on a formula that assures specified profit to the Developer. The City's participation % would be based on subsidylevel and be triggered after agreed upon Developer's profit thresholds are met. Proposed formula and examples: Upon Sale of any portion of the project by the Developer, the City would participate in the sale proceeds as follow: If the Net Sale proceeds exceeds the Developer costs, including hard and soft costs, over the period of time the Developer has owned the project plus 15% profit, then the City shall share in the net profits based on the ratio of City's cost, plus land value, and the Developer's total costs. Example: Sale Price: $140 million Developer's costs: $100 million City's costs ($13m + $3m (land): $16 million Total costs: $116 million City Share Ratio 16/116=13.7% Developer's profit @15% of costs $100m= $15m Sales Price: $140 million- (DEVprioritypayment$100m+$15m=)$115m=Participation amount $25 million City share =13.7% of $25m= $3.4rn Developer share=$21.6m Developer's total proceeds = $115 m+ $21.6m = $136.6m Conditions that would apply if the Option to Purchase Public Parking is exercised: If the Developer exercises the Option and pays $15 million to the City to purchase the Public Parking, that cost will be added to the Developer costs for purposes of calculating the City Participation formula. To the extent that the Developer exercises the Option to purchase the Public Parldng at $15 million, the participation formula will be adjusted to reduce the City's share by the amount equal to the City proceeds from the $15 million minus payoff of outstanding debt. Example: Assuming a principal balance of $10 million from $15 million = $5 million net. The participation formula would be reduced by that amount in the future. 20G-22 FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT THIS FIRST AMENDMENT TO REIMEURSEMENT AGREEMENT is made and entered into this 4&1 day of January, 2018, by and between CARIBOU INDUSTRIES, INC., a Nevada corporation (`Developer"), and the CITY OF SANTA ANA, a charter city and municipal corporation, organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City and Consultant entered into Reimbursement Agreement No. A-2017- 058, dated April 27, 2017, to establish the terms and conditions upon which Developer will reimburse City for bona fide, actual costs paid and/or costs accrued in connection with and directly related to the Project and the negotiation and execution of the DDA, if any, such as expenses for engineers, architects, financial consultants, legal, planning and other consultants and contractors retained by the City ("said Agreement"). B. In accordance with the terms and conditions of said Agreement, the Parties desire to amend Section 2 — Reimbursement of Costs, to increase the maximum amount of said Agreement, and to clarify the Eligible Expenses, NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions of said Agreement, except as herein modified, the parties agree as follows: 1. Section 2, Reimbursement of Costs, shall, be amended to read as follows: "Developer agrees to reimburse the City for Eligible Expenses pre -approved by Developer and City, up to a maximum of One Hundred -Thousand Dollars ($100,000.00), payable within thirty (30) days after receipt by Developer of written documentation from City evidencing such Eligible Expenses. Eligible Expenses shall specifically exclude any and all expenses due and payable by the Developer to the Planning and Building Agency for the processing of entitlements, including any expenses for CEQA studies and analysis." Except as hereinabove modified, all terms and conditions of said Agreement shall remain in full force and effect. Exhibit 2 21 23 IN WITNESS WHEREOF, the Parties have executed this First Amendment to Reimbursement Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO Cit} L -M RECOMMENDED FOR APPROVAL: ROBERT ZUR SCHMIEDE Interim Executive Director Community Development Agency CITY OF SANTA ANA RAUL GODINEZ II City Manager DEVELOPER CARIBOU INDUSTRIES: 4a — Michael . Harrah 20044