HomeMy WebLinkAboutAGENDA REPORT 2017 1101 CCSA REG ITEM 09D ITEM 9.D.
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MOORPARK CITY COUNCIL
AGENDA REPORT -;Y:
TO: Honorable City Council
FROM: Jessica Sandifer, Program Manag-7/
DATE: October 19, 2017 (CC Meeting of 11/17)
SUBJECT: Consider Exclusive Negotiating Agreement with Daly Group, Inc. for
High Street Property (APN 512-0-090-115)
BACKGROUND
The Redevelopment Agency of the City of Moorpark ("Agency") acquired a 2.34 acre
site, located at 192 High Street ("Property"), from the Ventura County Transportation
Commission on August 8, 1993, at a cost of $393,451.34. This Property was part of a
4.77 acre purchase for$800,000. In 2011, AB X1 26 ("Dissolution Act"), as upheld and
modified by the Supreme Court in California Redevelopment Association, et al. v. Ana
Matosantos, et al. (53 Cal.4th 231(2011)), dissolved the Redevelopment Agency as of
February 1, 2012 and created the Successor Agency to the Redevelopment Agency of
the City of Moorpark ("Successor Agency"). As part of the dissolution process, the
Successor Agency prepared a Long Range Property Management Plan ("LRPMP")
addressing the disposition of real properties acquired by the former Redevelopment
Agency. The LRPMP provides that the Property identified in the LRPMP as Property
No. 5(a), consisting of a portion (approximately'2.14 acres) of APN 512-0-090-115 will
be retained by the City of Moorpark ("City"), provided that the City pays compensation to
the taxing entities. Pursuant to the LRPMP, as approved by the California State
Department of Finance, the Property (approximately 95,396 sq. ft.) was conveyed to the
City, upon the City's payment of$470,000 in compensation to the taxing entities.
DISCUSSION
The Daly Group, Inc. (Daly Group) has approached the City with a proposal to develop
the High Street property with a mixed-use project that includes 20% to 50% of the
normal commercial square footage that could be built on a 2.14 acre property and would
include an attached residential and live/work component of between 40 and 80 units.
Daly Group has requested that the City not consider any other development proposals
or conduct negotiations with any other parties while they perform their research and
due-diligence for the project. The City Council is being asked to approve an Exclusive
Negotiating Agreement (ENA) with Daly Group for a six-month term with a three-month
extension upon the request of Daly Group and the City Manager's approval.
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Honorable City Council
November 1, 2017
Page 2
An ENA is a common agreement for a city to enter into with a potential developer at the
beginning of a significant project. It provides a period of exclusivity during which the
steps of site planning, property negotiation, and environmental review can be
undertaken. The ENA also sets forth a time period for key milestones and a framework
for reimbursement of City costs. During the due diligence process, Daly intends to reach
out to other parties that have been interested in the site to determine whether there are
opportunities for those parties to partner with Daly Group in the development as future
commercial tenants. At the conclusion of the ENA period, if all deliverables meet with
City Council approval, staff would be authorized to negotiate a Disposition and
Development Agreement for the property. Staff supports the ENA with Daly Group as
they have extensive experience with planning, entitling, and building in-fill developments
in the cities of Oxnard, Ventura, Camarillo, and Thousand Oaks.
FISCAL IMPACT
There is no fiscal impact from signing the ENA. The ENA provides that all City costs
associated with the ENA period would be reimbursed by Daly Group.
STAFF RECOMMENDATION
Approve Exclusive Negotiating Agreement with Daly Group, Inc., subject to final language
approval of the City Manager, and authorize City Manager to execute the agreement.
Attachments— Exclusive Negotiating Agreement
13
DRAFT
EXCLUSIVE NEGOTIATING AGREEMENT
This EXCLUSIVE NEGOTIATING AGREEMENT("ENA") is dated as of , 2017,
and is entered into by and between the CITY OF MOORPARK, a municipal corporation (the
"City"), and Daly Group, Inc., (the "Developer"). The City and Developer are sometimes
individually referred to herein as a "Party" and are sometimes collectively referred to herein as
the"Parties."
RECITALS
A. The City owns the land in the City of Moorpark, California that is described on
Exhibit"A"(the"Property").
B. The City and the Developer desire that Developer construct and operate the
project described on Exhibit"B" on the Property (the"Project").
C. Developer intends to incur significant costs analyzing the Property and designing
the Project, and City intends to incur significant costs in negotiating and preparing a Disposition
and Development Agreement(the "DDA")for the Property and Project. Developer has therefore
requested that the City agree to negotiate with Developer on an exclusive basis to establish the
terms and conditions of the DDA.
D. It is anticipated that during the term of this ENA, City staff and consultants and
attorneys of the City will devote substantial time and effort in meeting with Developer and its
representatives and consultants, reviewing proposals, plans and reports, negotiating and
preparing the DDA, obtaining consultant advice and reports (possibly including an appraisal),
and to the extent necessary, further complying with the California Environmental Quality Act
("CEQA").
NOW, THEREFORE,the Parties hereto agree as follows:
1. The term of this ENA shall commence on the date hereof and shall end on
the earlier of: (i)the date that is six (6)months after the date of this ENA, as may be extended by
the City Manager as set forth below in this Section 1, or (ii) the date on which the City or
Developer terminates this ENA as provided in Section 2 below (in either case, the "ENA
Period"). Provided that neither Party has terminated this ENA pursuant to Section 2 below, the
ENA Period may be extended by the City Manager, in writing, at the written request of
Developer, for up to three (3) months; provided, however, that: (i) the Developer is not then in
material default under this ENA(following notice to Developer and expiration of cure periods in
accordance with Section 3 below), (ii) there are no material issues remaining to be resolved with
respect to the DDA.
2. The City may terminate this ENA if Developer should fail to comply with
or perform any provisions of this ENA and such failure is not cured within ten (10) days after
written notice from the City Manager to Developer, or if reasonable progress is not being made
in negotiations hereunder as determined by the City Manager in good faith. Developer may
terminate this ENA by written notice to City if the Developer determines, in its sole discretion,
that it does not wish to pursue the Project further.
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12853-0001\2110421v1.doc 14
3. During the ENA Period(as extended under Section 1 above, if applicable),
the City shall not negotiate with any person or entity other than the Developer for the sale, lease,
or development of the Property.
4. The Project must include the features/elements described on Exhibit `B"
attached hereto. Developer shall deliver the materials and information identified on Attachment
No. 1 attached hereto to the City within the times set forth on Attachment No. 1. Within ten(10)
days after each calendar month during the ENA Period (as extended under Section 1 above, if
applicable), Developer shall provide a written report to the City describing in reasonable detail
Developer's activities with respect to the Project during such calendar month.
5. During the ENA Period, the City shall use good faith efforts to complete
(or cause to be completed)the tasks set forth in Attachment No. 2 attached hereto.
6. Developer shall reimburse the City for its actual out-of-pocket costs and
expenses (including legal fees and consultants costs) incurred in preparing this ENA and
fulfilling its obligations under this ENA, including, but not limited to: (i)the costs of negotiating
and preparing the DDA; and (ii) the costs of appraisals, economic consultants and the like used
by City to evaluate the Project, proposed transaction terms, and/or DDA (collectively, the
"Reimbursable Costs"). Concurrently with its execution of this ENA, Developer shall deposit
with the City the sum of Five Thousand and No/100 Dollars ($5,000.00) (the "Reimbursement
Funds"). The Reimbursement Funds may be used and applied from time to time by the City to
pay or reimburse itself for Reimbursable Costs not otherwise paid or reimbursed by Developer.
Developer shall deposit with the City funds sufficient to replenish the Reimbursement Funds
held by City within ten (10) days after written demand by the City Manager. The City shall
provide Developer with a monthly accounting identifying in reasonable detail the Reimbursable
Costs to which Reimbursement Funds have been applied. Any Reimbursement Funds not
applied shall be delivered to the Developer (along with a final accounting of the City's
application of the Reimbursement Funds) within thirty (30) business days after the earlier of: (i)
the execution of the DDA by the Parties, or(ii) the expiration or earlier termination of this ENA.
The provisions of this Section shall survive the expiration or earlier termination of this ENA, to
the extent that the City has incurred actual Reimbursable Costs for which there are insufficient
Reimbursement Funds then on deposit with the City, and provided that the City shall not enter
into any further agreements or incur any further costs for which Developer is responsible
subsequent to termination or expiration of this ENA. Notwithstanding anything to the contrary
in this ENA, express or implied,the City shall have the right in its sole and absolute discretion to
cease evaluation of submittals relating to the Project, stop any other staff work and/or work of its
consultants and stop negotiating or discussing the Project or DDA, in the event that the City
Manager determines that the sums then on deposit with City are not clearly sufficient to pay for
all of the projected/established Reimbursable Costs projected/estimated in good faith by the City
Manager.
7. The City and Developer acknowledge that all applicable requirements of
CEQA must be met in order for City to approve Project entitlements and enter into the DDA, and
that this may require reports and/or analyses for CEQA purposes (collectively, the "CEQA
Documents"). Developer will, at its cost, fully cooperate with the City in the City's preparation
of any CEQA Documents.
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8. Developer shall bear all costs and expenses of any and all title,
environmental, physical, engineering, financial, and feasibility investigations, reports and
analyses and other analyses or activities performed by or for Developer. During the ENA
Period, the City shall deliver to Developer complete copies of any and all material non-
privileged reports and other material non-privileged documents pertaining to the Property which
are in City's possession, at no cost to Developer other than the actual cost (if any) of duplicating
such documents.
9. The Developer and the City understand and agree that neither Party is
under any obligation whatsoever to enter into a DDA, and that notwithstanding its approval of
this ENA, the City shall have the right to disapprove any proposed DDA in its sole and absolute
discretion, and in that regard, Developer hereby expressly agrees that the City shall not be bound
by any implied covenant of good faith and fair dealing in connection with such approval or
disapproval of any proposed DDA. In the event of the expiration or earlier termination of this
ENA, the City shall be free to negotiate with any persons or entities with respect to the Property.
No consents, approvals, comments or discussions by staff shall diminish, affect or waive: (i)
rights of the City to later impose conditions and requirements under CEQA; (ii) the right of the
City not to approve the DDA; or (iii) the City's other governmental rights, powers and
obligations.
10. Developer shall indemnify, defend, and hold the City and the City's
respective officers, directors, members, employees, agents, contractors and affiliated entities
harmless from any and all claims, liabilities, damages, costs and expenses relating to or arising
out of this ENA or Developer's failure to perform any obligation of Developer under this ENA,
or any challenges to this ENA. Developer's obligations under the preceding sentence shall
survive the expiration or earlier termination of this ENA.
11. Developer represents and warrants that its undertakings pursuant to this
ENA are for the purpose of development of the Property and not for speculation in land, and
Developer recognizes that, in view of the importance of the development of the Property to the
general welfare of the community, the qualifications and identity of Developer and its principals
are of particular concern to City; therefore, this ENA may not be assigned by Developer without
the prior express written consent of the City Manager in his or her sole and absolute discretion.
However, the City acknowledges that Developer may form a new entity to be the Developer
entity that will be party to the potential DDA, provided that such new entity is controlled and
partially but materially owned by Developer or owners of the Developer entity.
12. Any notice, request, approval or other communication to be provided by
one Party to the other shall be in writing and provided by certified mail, return receipt requested,
or a reputable overnight delivery service (such as Federal Express) and addressed as follows:
If to the Developer:
Daly Group , Inc.
31255 Cedar Valley Drive, Suite 323
Westlake Village,. California 91362
Attn: Vincent J. Daly, President
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12853-0001\2110421v1.doc 16
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Manager
Notices shall be deemed delivered: (i) if sent by certified mail, then upon the date
of delivery or attempted delivery shown on the return receipt; or (ii) if delivered by overnight
delivery service, then one (1) business day after delivery to the service as shown by records of
the service.
13. This ENA constitutes the entire agreement of the Parties hereto with
respect to the subject matter hereof. There are no agreements or understandings between the
Parties and no representations by either Party to the other as an inducement to enter into this
ENA, except as may be expressly set forth herein, and any and all prior discussions and
negotiations between the Parties are superseded by this ENA.
14. This ENA may not be altered, amended or modified except by a writing
duly authorized and executed by all Parties.
15. No provision of this ENA may be waived except by an express written
waiver duly authorized and executed by the waiving Party.
16. If any Party should bring any legal action or proceeding relating to this
ENA or to enforce any provision hereof, or if the Parties agree to arbitration or mediation
relating to this ENA,the Party in whose favor a judgment or decision is rendered shall be entitled
to recover reasonable attorneys' fees and expenses from the other. The Parties agree that any
legal action or proceeding or agreed-upon arbitration or mediation shall be filed in and shall
occur in the County of Ventura.
17. The interpretation and enforcement of this ENA shall be governed by the
laws of the State of California.
18. Time is of the essence of each and every provision hereof in which time is
a factor.
19. This ENA may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same ENA.
20. Executed counterparts of this ENA may be delivered electronically by
email to: jsandifer@moorparkca.gov (for the City), and vince@dalygroupinc.com (for the
Developer).
•
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12853-0001\2110421v1.doc 17
IN WITNESS WHEREOF, the Parties hereto have executed this ENA as of the
day and year first written above.
OWNER: DEVELOPER:
CITY OF MOORPARK Daly Group, Inc.
a California Corporation
By:
Steven Kueny, City Manager By:
Print Name: Vincent J. Daly
Title: President
Attest: 0
Maureen Benson, City Clerk
Approved as to Form:
Kevin G. Ennis, City Attorney
•
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DRAFT
EXHIBIT"A"
DESCRIPTION OF PROPERTY
(Attached.)
Exhibit"A"
Page 1 of 1
12853-0001\2110421v1.doc 19
DRAFT
EXHIBIT "B"
REQUIRED PROJECT FEATURES/ELEMENTS
Conceptual plan for a mixed-use project that includes 20% to50% of the normal commercial
square footage for a 2.14 acre property and include 40-80 residential apartment units, as well as
live/work rental spaces. The commercial space shall include one or more unique restaurant or
entertainment options.
•
Exhibit"B"
Page 1 of 4
12853-0001\2110421v1.doc 20
ATTACHMENT NO. 1
SPECIFIC DEVELOPER TASKS
All timelines stated below begin after execution of the ENA
1. Within ninety (90) days, Developer shall deliver the following items for City staff review
and preliminary approval:
i) Schedule for processing of General Plan and Zoning Amendment for the
Project, if applicable.
ii) Preliminary site plan and revised architectural concept drawings
identifying the location, building envelopes, general configuration, uses of
the buildings and site, parking and traffic circulation, and proposed design
characteristics of the Project.
iii) Conceptual development program ("Development Program") for the
Project that includes a breakdown of the proposed scope of development
including a range of building square footage by land use and range of
square footage and number of parking spaces and landscaped areas,
improvements, proposed public amenities, circulation, and other general
uses.
2. Within one-hundred twenty (120) days, Developer and City staff shall determine the
likely type and schedule for obtaining entitlements necessary for construction of the Project
including, but not limited to, discretionary permits.
3. Developer will participate in a community meeting to hear comments, concerns,
questions, and suggestions from residents and business owners in the City.
4. Within ninety (90) days, Developer shall deliver to the City for City staff review and
approval, a preliminary financing plan for the proposed Project.
5. Within ninety (90) days, Developer shall submit to the City a schedule of development
setting forth the proposed timetable for the commencement, substantial completion and final
completion of the Project(the "Development Schedule").
6. Within one hundred twenty (120) days, Developer shall obtain and review a Phase I
environmental (hazmat) report for the Property, and if recommended by the Phase I, Developer
shall promptly obtain a Phase II report subject to entering into a reasonable right of entry
agreement with City. Developer shall promptly deliver copies to the City when received.
7. Developer shall obtain and review a preliminary report for the Property from a title
company selected by Developer and copies of the documents listed as title exceptions therein and
an ALTA survey and shall deliver copies of the reports, documents and survey to the City
together with a written description of any objections Developer may have to any of the title
exceptions (and the rationale for the objections).
8. Within thirty (30) days, Developer shall deliver to City for City staff review and
approval, an organizational chart of the proposed Developer entity proposed to be a party to the
DDA.
Exhibit"B"
Page 2 of 4
12853-0001\2110421v1.doc 21
9. By the end of the ENA term (and extended term, if applicable), Developer shall deliver to
the City a fully completed and executed development application.
Exhibit"B"
Page 3 of 4
12853-0001\2110421v1.doc 22
ATTACHMENT NO.2
SPECIFIC CITY TASKS
All timelines stated below begin after execution of the ENA
1. Within thirty (30) days, City shall provide to Developer copies of all currently existing
plans, studies and other written information regarding the Property in its possession, to the extent
not previously delivered to Developer and to the extent material to the Project and not subject to
any attorney-client or attorney work product privilege or other privilege.
2. Within one hundred twenty (120) days, City shall complete Parcel Map process for the
Property.
3. City shall use good faith efforts to prepare and process any required CEQA Documents as
soon as reasonably possible after submission by Developer of a complete development
application and payment of applicable fees/deposits.
4. City shall provide initial drafts of the DDA to Developer and shall thereafter revise them
to the extent reasonably permitted by the negotiations.
Exhibit"B"
Page 4 of 4
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