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HomeMy WebLinkAbout4.03 Amendment to the Memorandum of Understanding for Dublin Place Shopping Centerr DUBLIN CALIFORNIA STAFF REPORT CITY COUNCIL DATE: .Line 6, 2023 TO: Honorable Mayor and City Councilmembers FROM: Linda Smith, City Manager Agenda Item 4.3 SU B.ECT : Amendment to the Memorandum of Understanding for Dublin Place Shopping Center Prepared by: Hazel L. Wetherford, Economic Development Director EXECUTIVE SUMMARY: The City Council will consider approval of a third amendment to the Memorandum of Understanding with ASVRF 7300 Amador, LP, ASVRF Dublin Place, LP, and ASVRF 6960 Amador, LP regarding Dublin Place Shopping Center. The Amendment includes an 18-month term extension. STAFF RECOMMENDATION: Adopt the Resolution Approving a Third Amendment to the Memorandum of Understanding (Dublin Place Shopping Center). FINANCIAL IMPACT: There is no financial impact associated with the approval of this Amendment. DESCRIPTION: On October 15, 2019, the City Council adopted Resolution No. 107-19 (Attachment 3) approving a Memorandum of Understanding (MOU) between the City of Dublin and ASVRF Acquisitions, LLC, ASVRF Dublin Place, LP, and ASVRF 6960 Amador LP for Dublin Place Shopping Center. On April 6, 2021, the City Council adopted Resolution No. 26-21 (Attachment 4) approving a First Amendment to the Memorandum of Understanding extending the term by 12-months. On April 5, 2022, the City Council adopted Resolution No. 30-22 (Attachment 5) approving a Second Amendment to the Memorandum of Understanding extending the term by 14-months. On October 18, 2022, the City Council received an update on Downtown Dublin that included a Page 1 of 3 96 presentation from the primary property owner, American Realty Advisors along with their team, which includes Hines and Gensler on their proposed master site plan. The plan showed modifications to the town square and street grid network while still capturing the intent of the Downtown Preferred Vision (DPV). Located in the Retail District of Downtown Dublin, Dublin Place Shopping Center contains eight parcels with two property owners. ASVRF Dublin Place, LP, also known as American Realty Advisors (ARA), now owns six of the eight parcels. At the time of the initial MOU in September 2019, ARA only owned five of the eight parcels and desired to acquire 7300 Amador Plaza Rd. in partnership with the City of Dublin. During that time, the City was working on the development of the Downtown Preferred Vision project and was collaborating with ARA to develop new and more appropriate uses for the Shopping Center consistent with the City's Downtown Dublin Specific Plan. The MOU outlined the terms between ARA and the City as it related to the joint commitment of funds towards the acquisition of 7300 Amador Plaza Rd. As part of the acquisition, the City contributed $3,000,000 and ARA contributed $3,775,000. The MOU outlined the following requirements of ARA: • Acquire the other portions of the Shopping Center, and if successful in acquiring the remaining sites, cooperate in the City's efforts to site a town square park and sell the City the necessary acreage as outlined in the MOU; • Identify and create a separate site for the development of an up-to-80 unit affordable senior housing site; • Obtain termination rights and/or relocation rights within the leases for any future lease(s) within both the 7950 Amador Valley Blvd. property and 7300 Amador Plaza Rd. property; • Apply for a permit for a new monument signage program which would include a rebranding effort of the Shopping Center; and • If, during the 18-month period as outlined in the MOU, the City does not approve a higher and better use of 7505 Dublin Blvd. as part of a larger redevelopment of the Shopping Center, or if ARA decides that it would be beneficial not to develop 7505 Dublin Blvd. as part of a larger redevelopment of the Shopping Center, then ARA will obtain a building permit for the development of 7505 Dublin Blvd. Throughout the City Council actions over the last four years, ARA has made significant strides in support of the DPV. However, additional time is needed to complete negotiations with the remaining property owner, negotiate leases with long-term tenants, address final comments on the master site plan, and understand traffic impacts. It is for this reason that the City and ARA have agreed to extend the MOU for a period of 18 months to December 31, 2024. The Amendment also includes language to correct the address for the former Grocery Outlet building from 7950 Amador Valley Boulevard to 7590 Amador Valley Boulevard. Page 2 of 3 97 STRATEGIC PLAN INITIATIVE: Strategy 1: Downtown Dublin and Economic Development Objective A: Continue support of the downtown preferred vision and downtown specific plan including improving visual and environmental quality and evaluating specific business uses. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted, and a copy of this Staff Report has been provided to ARA. ATTACHMENTS: 1) Resolution Approving a Third Amendment to the Memorandum of Understanding Regarding Dublin Place Shopping Center 2) Exhibit A to the Resolution - Third Amendment to the Memorandum of Understanding (Dublin Place Shopping Center) 3) Resolution No. 107-19 Approving a Memorandum of Understanding Regarding Dublin Place Shopping Center 4) Resolution No. 26-21 Approving a First Amendment to the Memorandum of Understanding (Dublin Place Shopping Center) 5) Resolution No. 30-22 Approving a Second Amendment to the Memorandum of Understanding Regarding Dublin Place Shopping Center Page 3 of 3 98 Attachment I RESOLUTION NO. XX — 23 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A THIRD AMENDMENT TO THE MEMORANDUM OF UNDERSTANDING (DUBLIN PLACE SHOPPING CENTER) WHEREAS, on October 15, 2019, the City Council adopted Resolution No. 107-19 approving a Memorandum of Understanding (MOU) between the City of Dublin and ASVRF Acquisitions, LLC, ASVRF Dublin Place, LP, and ASVRF 6960 Amador LP also known as American Realty Advisors (ARA) for the Dublin Place Shopping Center; and WHEREAS, on April 6, 2021, the City Council adopted Resolution No. 26-21 approving a First Amendment to the MOU; and WHEREAS, on April 5, 2022, the City Council adopted Resolution No. 30-22 approving a Second Amendment to the MOU; and WHEREAS, upon the City's request, ARA agreed to use commercially reasonable efforts to facilitate future development of the Shopping Center and site a Town Square, including the acquisition of 7300 Amador Plaza Rd. (the "Property); and WHEREAS, the MOU outlined the terms between ARA and the City as it related to the joint commitment of funds towards the acquisition of the Property; and WHEREAS, due to the COVID-19 pandemic and the ongoing significant impact to owners and tenants of retail properties, priorities were shifted and substantial delays in negotiations occurred; and WHEREAS, ARA has commenced negotiations again with the remaining property owner; however, additional time is needed; and WHEREAS, the City requested, and ARA agreed, to extend the MOU for a period of 18- months; and WHEREAS, ARA has requested to correct the address of the former Grocery Outlet building from 7950 Amador Valley Boulevard to 7590 Amador Valley Boulevard. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Third Amendment to the Memorandum of Understanding between the City of Dublin and ASVRF 7300 Amador, LP, ASVRF Dublin Place, LP, and ASVRF 6960 Amador LP. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the amendments to the agreements, attached hereto as Exhibit A, and make any necessary, non - substantive changes to carry out the intent of this Resolution, as deemed appropriate by the City Manager. Reso. No. XX-23, Item X.X, Adopted XX/XX/23 Page 1 of 2 99 PASSED, APPROVED AND ADOPTED this 6th day of June 2023, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-23, Item X.X, Adopted XX/XX/23 Page 2 of 2 100 DocuSign Envelope ID: DAA923DA-3A50-4FD4-9EDB-25F3B26212CB Attachment 2 Exhibit A to the Resolution THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING (Dublin Place Shopping Center) This Third Amendment to Memorandum of Understanding ("Third Amendment") dated as of June 6, 2023 ("Effective Date"), is entered into between and among the City of Dublin (the "City"), ASVRF 7300 Amador, LP, a Delaware limited partnership ("ASVRF 7300") as successor in interest to ASVRF Acquisitions, LLC, a Delaware limited liability company ("ASVRF Acquisitions"), ASVRF Dublin Place, LP, a Delaware limited partnership ("ASVRF Dublin") and ASVRF 6960 Amador, LP, a Delaware limited partnership ("ASVRF Amador" and collectively "Owners"). The City and Owners are each individually referred to as a "Party" and collectively referred to as the "Parties." Capitalized terms not defined in this Third Amendment shall have the meanings specified in the MOU. RECITALS WHEREAS, ASVRF Acquisitions assigned all of its interest under the Purchase Agreement to ASVRF 7300 which has acquired 7300 Amador Plaza Road, Dublin, California, Assessor's Parcel No. 941-0305-027 (the "7300 Amador Property"), located within the Dublin Place Shopping Center (the "Shopping Center"); and WHEREAS, the Owners wish to develop new and more appropriate uses for the Shopping Center consistent with the City's Downtown Dublin Specific Plan, including the siting of a Town Square and the City is supportive of these efforts; and WHEREAS, Owners and the City desire to see the Covenants, Conditions & Restricts (CC&Rs) and Reciprocal Easement Agreement (REA) encumbering the Shopping Center amended to allow more appropriate uses at the Shopping Center, consistent with the City's Downtown Dublin Specific Plan, redevelopment opportunities of various areas within the Shopping Center, and/or improved signage; and WHEREAS, to bring specificity to their joint commitment and to set out in general terms and actions to encourage future development of the Shopping Center and siting of a Town Square, consistent with the City's Downtown Specific Plan, the Parties entered into a Memorandum of Understanding dated October 15, 2019 (the "MOU"); and WHEREAS, the Parties executed the First Amendment to the MOU on April 6, 2021 extending the term of the MOU to April 14, 2022; WHEREAS, the Parties executed the Second Amendment to the MOU on April 5, 2022 extending the term of the MOU to June 30, 2023; WHEREAS, in response to a request by the City, Owners have agreed to extend the Term of the MOU upon the terms and conditions set forth herein. NOW THEREFORE, the Parties hereby agree as follows: Section 1. Recitals. The Recitals stated above are hereby ratified by the Parties as being true, accurate and correct and are incorporated herein as if set forth in full. 101 DocuSign Envelope ID: DAA923DA-3A50-4FD4-9EDB-25F3B26212CB Section 2. Term. The Term of this MOU shall be extended to the close of business on December 31, 2024 and any other time periods specified in the MOU shall be extended accordingly. Section 3. 7950 Amador Valley Boulevard. References to 7950 Amador Valley Boulevard (the former Grocery Outlet building) in the MOU shall be replaced with "7590 Amador Valley Boulevard". Section 4. Entire Agreement. The MOU, as modified by this Third Amendment, contains all of the agreements and understandings related to the subject matter hereof. Section 5. Remainder of MOU Unmodified. Except as set forth in this Third Amendment, the Parties agree that the MOU is unmodified and in full force and effect and that no Party is in breach of any obligations thereunder. To the extent that the terms of the MOU conflict with the terms of this Third Amendment, the terms of this Third Amendment shall be controlling. Section 6. Counterparts. This Third Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF, the Parties have executed this Third Amendment, effective as of the date first written above. CITY OF DUBLIN ASVRF 7300 Amador, LP a Delaware limited liability partnership By: Linda Smith, City Manager Attest: By: Marsha Moore, City Clerk Approved as to form By: John D. Bakker, City Attorney By: ASVRF Dublin Place GP Corporation, a Delaware corporation, its General Partner DocuSignedW By: 54 E+avbw Name: KirkHelgeson Its: Executive Vice President Date: 5/15/ZU i ASVRF DUBLIN PLACE, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner By: i Eravbw Name: Kirk Helaeson Its: Executive Vice President Date: )/ i / L "s 2 102 DocuSign Envelope ID: DAA923DA-3A50-4FD4-9EDB-25F3B26212CB ASVRF 6960 AMADOR, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner By: rDocuSign. by: kirl, thivatn, Name: Kirk Helaeson Its: Exec f *Ace President Date: 3 103 Attachment 3 RESOLUTION NO. 107 - 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING A MEMORANDUM OF UNDERSTANDING REGARDING DUBLIN PLACE SHOPPING CENTER WHEREAS, ASVRF Acquisitions, LLC, ASVRF Dublin Place, LP, and ASVRF 6960 Amador LP also known as American Realty Advisors (ARA) and the City desire to see redevelopment opportunities of various areas within the Dublin Place Shopping Center; and WHEREAS, the City has requested, and ARA has agreed, to use commercially reasonable efforts to facilitate future development of the Shopping Center and site a Town Square, including acquisition of 7300 Amador Plaza Rd (the "Property"); and WHEREAS, the purchase price for the Property is Six Million Seven Hundred Seventy - Five Thousand dollars ($6,775,000); and WHEREAS, ARA and the City wish to partner together towards acquiring the Property, with ARA depositing Three Million Seven Hundred Seventy -Five Thousand dollars ($3,775,000) into escrow and the City contributing Three Million dollars ($3,000,000) towards the purchase of the Property; and WHEREAS, the parties now wish to enter into a Memorandum of Understanding (MOU) to bring clarity to their joint commitment and to set out in general terms the various roles each party will play and procedures to be followed; and WHEREAS, for a period of 18 months following the effective date of the Memorandum of Understanding (MOU), ARA will attempt to: • Acquire the other portions of the Shopping Center, and if successful in acquiring the remaining sites, will cooperate in the City's efforts to site a town square park and sell the City the necessary acreage as outlined in the MOU; • Identify and create a separate site for the development of an up to 80-unit affordable senior housing site; • Obtain termination rights and/or relocation rights within the leases for any future lease(s) within both 7950 Amador Valley Blvd. and the Property; • Apply for a permit for a new monument signage program which would include a rebranding effort of the Shopping Center; and • If during the 18-month period as outlined in the MOU, the City does not approve a higher and better use of 7505 Dublin Blvd. as part of a larger redevelopment of the Shopping Center, or if ARA decides that it would be beneficial not to develop 7505 Dublin Blvd. as part of a larger redevelopment of the Shopping Center, then ARA will obtain a building permit for the development of 7505 Dublin Blvd.; and Reso No. 107-19, Adopted 10/15/19, Item No. 4.3 Page 1 of 2 104 WHEREAS, if during the 18-month period, the City and ARA mutually agree that ARA has failed to comply with the terms of the MOU, ARA shall reimburse the City's contribution of Three Million dollars ($3,000,000). NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Memorandum of Understanding regarding Dublin Place Shopping Center for the acquisition of 7300 Amador Plaza Road. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the MOU in substantially the form attached as Exhibit A to this Resolution, and to take such other and further action, as necessary and appropriate to carry out the intention of this Resolution, including execution of a Funding Agreement related to acquisiton of the Property, as deemed appropriate by the City Manager. PASSED, APPROVED AND ADOPTED this 15th day of October, 2019, by the following vote: AYES: Councilmembers Goel, Hernandez, Josey, Kumagai and Mayor Haubert NOES: None ABSENT: None ABSTAIN: None ATTEST: 4,V City Clerk / 2 Reso No. 107-19, Adopted 10/15/19, Item No. 4.3 Page 2 of 2 105 MEMORANDUM OF UNDERSTANDING (Dublin Place Shopping Center) This Memorandum of Understanding ("MOU") dated October 15, 2019 ("Effective Date") is entered into between and among the City of Dublin (the "City"), ASVRF Acquisitions, LLC, a Delaware limited liability company ("ASVRF Acquisitions"), ASVRF Dublin Place, LP, a Delaware limited partnership ("ASVRF Dublin") and ASVRF 6960 Amador, LP, a Delaware limited partnership ("ASVRF Amador" and collectively "Owners"). The City and Owners are each individually referred to as a "Party" and collectively referred to as the "Parties." RECITALS WHEREAS, ASVRF Acquisitions has entered into that certain Purchase and Sale Agreement dated August 2, 2019 with EVCAP Amador Plaza LLC and TA Amador Plaza, LLC (the "Purchase Agreement") to purchase 7300 Amador Plaza Road, Dublin, California, Assessor's Parcel No. 941-0305-027 (the "7300 Amador Property"), located within the Dublin Place Shopping Center (the "Shopping Center") for a purchase price of Six Million Seven Hundred Seventy -Five Thousand dollars ($6,775,000); and WHEREAS, the Owners wish to develop new and more appropriate uses for the Shopping Center consistent with the City's Downtown Dublin Specific Plan, including the siting of a Town Square and the City is supportive of these efforts; and WHEREAS, Owners and the City desire to see the Covenants, Conditions & Restricts (CC&Rs) and Reciprocal Easement Agreement (REA) encumbering the Shopping Center amended to allow more appropriate uses at the Shopping Center, consistent with the City's Downtown Dublin Specific Plan, redevelopment opportunities of various areas within the Shopping Center, and/or improved signage; and WHEREAS, in furtherance of the Parties' desire to amend the CC&Rs and REA, Owners intend to work with any other property owners or tenants within the Shopping Center, whose consent may be necessary to complete such amendments; and WHEREAS, the City has requested, and Owners have agreed, to use commercially reasonable efforts to facilitate future development of the Shopping Center and site a Town Square; and WHEREAS, ASVRF Acquisitions will deposit into escrow the amount of Three Million Seven Hundred Seventy -Five Thousand dollars ($3,775,000), together with its share of any closing costs for the purchase of the 7300 Amador Property; and WHEREAS, subject to the terms of this MOU, City will contribute Three Million Dollars ($3,000,000) towards the purchase price of the 7300 Amador Property; and WHEREAS, the Parties now wish to enter into an agreement to bring specificity to their joint commitment and to set out in general terms and actions needed to be taken to by all Parties to complete the acquisition of the 7300 Amador Property and encourage future development of the Shopping Center and siting of a Town Square, consistent with the City's Downtown Specific Plan. Memorandum of Understanding Dublin Place Shopping Center 1 106 NOW THEREFORE, the Parties hereby agree as follows: Section 1. Term. The provisions of this MOU shall expire the earlier of (i) eighteen (18) months from the Effective Date of this MOU or (ii) upon completion of the Parties' obligations under this MOU or (iii) by mutual consent of the Parties. Section 2. Contribution by the City for the 7300 Amador Property. A. The City and ASVRF Acquisitions shall, in good faith, negotiate and execute a funding agreement governing their rights and obligations with respect to the City's contribution toward the purchase of the 7300 Amador Property (the "Funding Agreement"). B. On or before two business days prior to the Closing Date (as defined in the Purchase Agreement), City shall deposit Three Million Dollars ($3,000,000) into escrow towards the purchase of the 7300 Amador Property ("City's Share") pursuant to the terms of the Funding Agreement. C. In the event that the Parties mutually determine that ASVRF Acquisitions has failed to comply with the terms of the Funding Agreement (including the provisions of Section 3 below as incorporated in the Funding Agreement), ASVRF Acquisitions shall reimburse the City's Share pursuant to the terms of said Funding Agreement. Section 3. Owner's Obligations. A. Acquisitions. leases. and improvements For a period of 18 months following the effective date of this MOU, Owners shall: 1. Owners shall, in good faith attempt to acquire (either in their own names of through related entities), at no more than Fair Market Value, the other portions of the Shopping Center not currently owned by Owners. 2. Owners shall, in good faith attempt to identify and create a separate site within the area proximate to 7950 Amador Valley Boulevard (the former Grocery Outlet building) and the 7300 Amador Property to provide for the development of an up to 80-unit affordable senior housing site, which the City will have the opportunity to acquire based upon the land's Fair Market Value as further provided for herein. 3. ASVRF Dublin and ASVRF Acquisitions shall use good faith efforts to obtain termination rights and/or relocation rights within the leases for any future lease(s) within both the 7950 Amador Valley Boulevard Property and, upon its acquisition by ASVRF Acquisitions or affiliated entity, the 7300 Amador Property. However, temporary seasonal leases shall not be restricted on either property. 4. Owners shall apply for a permit to the City for a new monument signage program to serve the Shopping Center. The new signage program would Memorandum of Understanding Dublin Place Shopping Center 2 107 incorporate an immediate rebranding effort, which would be subject to City consultation and approval as part of the City's permit process. 5. If during the 18-month period described above, the City does not approve a higher and better use of the 7505 Dublin Boulevard (the former Coco's building) as part of a larger redevelopment of the Shopping Center, or if ASVRF Dublin decides that it would be beneficial not to develop 7505 Dublin Boulevard as part of a larger redevelopment of the Shopping Center, then ASVRF Dublin shall obtain a building permit for the development of 7505 Dublin Boulevard. B. Siting of Town Sauare 1. If ASVRF Acquisitions or a related entity is successful in acquiring the parcel of land comprised of 6850 Amador Plaza Road, 6900 Amador Plaza Road, and 575 Dublin Boulevard (APN 941-0305-4300) within the Shopping Center (the "941 Parcel"), ASVRF Acquisitions will cooperate in the City's efforts to site a Town Square and park, which collectively could take up to approximately 1 acre of land within the Shopping Center in a location generally depicted in Exhibit A. Upon acquisition of the 941 Parcel, ASVRF Acquisitions shall sell the necessary acreage, consistent with the area and location as depicted on Exhibit A or an area to be mutually agreed upon by the Parties, to the City at its Fair Market Value pursuant to the terms of a mutually agreed upon purchase and sale agreement. Nothing herein prevents the City from using the power of eminent domain to acquire a parcel or parcels within the Dublin Place Shopping Center for use as a Town Square. ii. Owners shall not oppose the City's efforts to site a Town Square and park or other related public infrastructure in the Shopping Center (i.e., would not initiate a public opposition campaign, file a CEQA lawsuit, etc.) so long as its location, size and phasing of development is consistent with Exhibit A or as otherwise mutually agreed upon by the Parties. Section 4. Successors and Assians. This MOU is binding upon and shall inure to the benefit of the Parties, and each of them, and their respective successors in interest and assigns. Section 5. Fair Market Value. Whenever used in this MOU, the term "Fair Market Value" shall mean the most probable price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts, as of a specific date. As between and among the Parties to this MOU, fair market value may be determined by the following process: A. Each Party shall appoint an appraiser and notify the other party in writing of the name and address of the appraiser so chosen, along with the appraiser's qualifications. Each appraiser shall be an MAI certified real estate appraiser duly licensed by the State of California, having at least 10 years of experience Memorandum of Understanding Dublin Place Shopping Center 3 108 appraising commercial real estate with an emphasis on mixed use retail in the Tri-Valley Area of Alameda County, consisting of the cities of Dublin, Livermore, Pleasanton and San Ramon. B. The appraisers shall then meet and confer during the thirty (30) day period, commencing on the date on which the last of the appraisers has been appointed ("Appraiser Negotiation Period") to attempt to mutually agree upon fair market value of the subject property. If the appraisers cannot agree upon fair market value as of the expiration of the Appraiser Negotiation Period, the two appraisers shall, within twenty (20) days thereafter; (i) each make their own determination of fair market value, and (ii) attempt to select a third appraiser meeting the qualifications stated in this section. If the two appraisers are not able to agree upon the third appraiser, either party, by giving fifteen (15) days written notice to the other party, can apply to the Presiding Judge of the Superior Court of Alameda County for the selection of a third appraiser who meets the qualifications stated in this section. Each of the parties shall bear one half (1/2) of the cost of appointing the third appraiser and paying the third appraiser's fees. C. The third appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The third appraiser shall, within thirty (30) days after his or her appointment, make a determination of fair market value using the same criteria specified above. The determinations of fair market value prepared by all three appraisers shall be compared and fair market value shall be whichever determination by either party appraiser is closer to the determination of the third appraiser (and if they are equally close, fair market value shall be the determination of the third appraiser). D. In the event the City elects to proceed with eminent domain to acquire a property which was previously the subject of a Fair Market Value determination in accordance with this section, the opinions of value expressed by any of the appraisers utilized in this process shall be inadmissible except in the event one of said appraisers is retained as an expert witness by a party in the eminent domain proceeding in which event said opinion may be used for purposes of impeachment of said appraiser. Furthermore, the compensation to be paid in any such eminent domain action shall be determined in accordance with California Eminent Domain Law. Section 6. Entire Agreement. This MOU constitutes the entire understanding between the parties with respect to the matters contemplated herein, and all prior or contemporaneous oral agreements, understandings, representations and statements, and all prior written agreements, understandings, letters of intent and proposals, in each case with respect to the transaction contemplated herein, are hereby superseded and rendered null and void and of no further force and effect and are merged into this MOU. Neither this MOU nor any provisions hereof may be waived, modified, amended, discharged or terminated except by an instrument in writing signed by the party against which the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. Section 7. Construction. This MOU shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that all Parties have contributed substantially Memorandum of Understanding Dublin Place Shopping Center 4 109 and materially to the preparation of this MOU. The headings of various sections in this MOU are for convenience only, and are not to be utilized in construing the content or meaning of the substantive provisions hereof. The Parties further intend that this MOU be broadly construed to achieve its stated purposes. Section 8. Cooperation. The Parties shall reasonably cooperate with each other to achieve the stated purposes of this MOU, including executing such additional documents as may be reasonably necessary therefore. Section 9. Governina Law. This MOU will be governed and interpreted in accordance with the law of California as if it was fully executed in California by persons domiciled in California and is to be wholly performed in California. Section 10. Partial Invalidity. If any provision or provisions of this MOU shall be held in a judicial proceeding to be invalid, illegal or void, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, provided the purposes of this MOU remain legal and enforceable. Section 11. Attorney Fees. In the event of litigation between the parties with respect to the MOU, the performance of their respective obligations hereunder or the effect of a termination under this MOU, the losing party shall pay all costs and expenses incurred by the prevailing party in connection with such litigation, including, but not limited to, reasonable attorneys' fees of counsel selected by the prevailing party. Notwithstanding any provision of this MOU on the contrary, the obligations of the parties under this shall survive termination of this Agreement or the Closing and the delivery of any conveyance documentation. Section 12. Counterparts. This MOU may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF, the Parties have executed this Memorandum of Understanding, effective asf the date first written above. CITY QJF DXJ = IN By: f i I thys{opher L. Foss, CiManaer Attest: P c? Caroline P. Soto, City Clerk Approved as to form Johncer, City Attorney Memorandum of Understanding Dublin Place Shopping Center 5 ASVRF ACQUISITIONS, LLC a Delaware limited liability company By: First Fiduciary Realty Advisors, Inc., a California corporation, its manag By: Name: Kirk Helgeson Its: Executive Vice President Date: `o// 7 // 9 110 ASVRF DUBLIN PLACE, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner By: Name: Kirk Helgeson ItS: Executive Vice President Date: `0 / / 7/6 9 ASVRF 6960 AMADOR, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its Gen al Partner By: Name: Its: Kirk Helgeson Executive Vice President Date: /00// 7 /q 3363736.1 Memorandum of Understanding Dublin Place Shopping Center 6 111 Exhibit A Siting Area of a Town Square Park -T202 70 3 0', 7 «0 70103 7012 7010 4. 7006 Memorandum of Understanding Dublin Place Shopping Center 7 112 Attachment 4 RESOLUTION NO. 26 - 21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A FIRST AMENDMENT TO THE MEMORANDUM OF UNDERSTANDING (DUBLIN PLACE SHOPPING CENTER) WHEREAS, on October 15, 2019, the City Council adopted Resolution No. 107-19 approving a Memorandum of Understanding (MOU) between the City of Dublin and ASVRF Acquisitions, LLC, ASVRF Dublin Place, LP, and ASVRF 6960 Amador LP also known as American Realty Advisors (ARA) for the Dublin Place Shopping Center; and WHEREAS, upon the City's request, ARA agreed to use commercially reasonable efforts to facilitate future development of the Shopping Center and site a Town Square, including the acquisition of 7300 Amador Plaza Rd. (the "Property); and WHEREAS, the MOU outlined the terms between ARA and the City as it related to the joint commitment of funds towards the acquisition of the Property; and WHEREAS, due to the COVID-19 pandemic and the significant impact to owners and tenants of retail properties, priorities were shifted and substantial delays in negotiations occurred; and WHEREAS, the City requested, and ARA agreed, to extend the MOU for a period of 12 months. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to Memorandum of Understanding between the City of Dublin and ASVRF 7300 Amador, LP, ASVRF Dublin Place, LP, and ASVRF 6960 Amador LP. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the amendments to the agreements, attached hereto as Exhibit A, and make any necessary, non - substantive changes to carry out the intent of this Resolution, including amendments to the Funding Agreement related to the acquisition of the Property, as deemed appropriate by the City Manager. PASSED, APPROVED AND ADOPTED this 6th day of April 2021, by the following vote: AYES: Councilmembers Hu, Josey, Kumagai, McCorriston and Mayor Hernandez NOES: ABSENT: ABSTAIN: Reso. No. 26-21, Item 4.5, Adopted 04/06/2021 Page 1 of 2 113 Mayor ATTEST: rDocuSigned by: V � City Clerk DocuSigned by: :,,1c :I7rfiter434 ; .. Reso. No. 26-21, Item 4.5, Adopted 04/06/2021 Page 2 of 2 114 FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING (Dublin Place Shopping Center) This First Amendment to Memorandum of Understanding ("First Amendment") dated as of April 6, 2021 ("Effective Date"), is entered into between and among the City of Dublin (the "City"), ASVRF 7300 Amador, LP, a Delaware limited partnership ("ASVRF 7300") as successor in interest to ASVRF Acquisitions, LLC, a Delaware limited liability company ("ASVRF Acquisitions"), ASVRF Dublin Place, LP, a Delaware limited partnership ("ASVRF Dublin") and ASVRF 6960 Amador, LP, a Delaware limited partnership ("ASVRF Amador" and collectively "Owners"). The City and Owners are each individually referred to as a "Party" and collectively referred to as the "Parties." Capitalized terms not defined in this First Amendment shall have the meanings specified in the MOU. RECITALS WHEREAS, ASVRF Acquisitions assigned all of its interest under the Purchase Agreement to ASVRF 7300 which has acquired 7300 Amador Plaza Road, Dublin, California, Assessor's Parcel No. 941-0305-027 (the "7300 Amador Property"), located within the Dublin Place Shopping Center (the "Shopping Center"); and WHEREAS, the Owners wish to develop new and more appropriate uses for the Shopping Center consistent with the City's Downtown Dublin Specific Plan, including the siting of a Town Square and the City is supportive of these efforts; and WHEREAS, Owners and the City desire to see the Covenants, Conditions & Restricts (CC&Rs) and Reciprocal Easement Agreement (REA) encumbering the Shopping Center amended to allow more appropriate uses at the Shopping Center, consistent with the City's Downtown Dublin Specific Plan, redevelopment opportunities of various areas within the Shopping Center, and/or improved signage; and WHEREAS, to bring specificity to their joint commitment and to set out in general terms and actions to encourage future development of the Shopping Center and siting of a Town Square, consistent with the City's Downtown Specific Plan, the Parties entered into a Memorandum of Understanding dated October 15, 2019 (the "MOU"); and WHEREAS, Owners and / or City have satisfied the requirements of Sections 2.A. and 2.B of the MOU; and WHEREAS, in response to a request by the City, Owners have agreed to extend the Term of the MOU upon the terms and conditions set forth herein. NOW THEREFORE, the Parties hereby agree as follows: Section 1. Recitals. The Recitals stated above are hereby ratified by the Parties as being true, accurate and correct and are incorporated herein as if set forth in full. Section 2. Term. The Term of this MOU shall be extended to the close of business on April 14, 2022 and any other time periods specified in the MOU shall be extended accordingly. ARAV-55373\2400145.1 115 Section 3. Acquisitions. Pursuant to its obligations under Section 3.A.1. of the MOU, ASVRF Acquisitions and subsequently ASVRF 7300 have made good faith efforts to acquire the other portions of the Shopping Center consistent with its obligations under Section 3.A.1 thereunder. The foregoing notwithstanding, ASVRF 7300, or an affiliate thereof, shall continue such good faith efforts during the extended Term of this MOU. It is understood and agreed that the inability of ASVRF 7300 or an affiliate thereof to reach an agreement with the owner of the 941 Parcel to purchase said parcel for reasons that include, but are not limited to, the unwillingness of the owner of the 941 Parcel to negotiate or negotiate in good faith or a failure by said owner to respond to ASVRF 7300 or an affiliate thereof in a timely fashion shall not constitute a breach by, or failure of ASVRF 7300 or an affiliate thereof to satisfy its obligations hereunder. Section 4. Senior Housing Site. Pursuant to its obligations under Section 3.A.2 of the MOU, ASVRF Acquisitions and subsequently Owners have made good faith efforts to identify and create a separate site for the development of an affordable senior housing site consistent with its obligations under Section 3.A.2 thereunder. The foregoing notwithstanding, Owners shall continue such good faith efforts under Section 3.A.2. of the MOU to attempt to identify and create a separate site for the development of an up to 80-unit affordable senior housing site, which the City will have the opportunity to acquire based upon the land's Fair Market Value, is conditioned upon Owners' successful acquisition of the land identified in Section 3.A.1 and shall be tied to the approval by the City of a master plan development, approval by existing tenants (where applicable) and issuance of building permits related to that portion of the Dublin Place Shopping Center where the affordable senior housing site would be located. Section 5. Sitting of Town Square. Pursuant to its obligations under Section 3. B. of the, MOU, ASVRF Acquisitions and subsequently ASVRF 7300 made good faith efforts to acquire the 941 Parcel consistent with its obligations thereunder. The foregoing notwithstanding, ASVRF 7300, or an affiliate thereof, shall continue such good faith efforts during the extended Term of this MOU. It is understood and agreed that the inability of ASVRF 7300 or an affiliate thereof to reach an agreement with the owner of the 941 Parcel to purchase said parcel for reasons that include, but are not limited to, the unwillingness of the owner of the 941 Parcel to negotiate or negotiate in good faith or a failure by said owner to respond to ASVRF 7300 or an affiliate thereof in a timely fashion shall not constitute a breach by, or failure of ASVRF Acquisitions to satisfy its obligations hereunder. Furthermore, the timing of the close of a purchase and sale agreement, as defined in Section 3.B.1.(i) of the MOU, shall be tied to the approval by the City of a master plan development, approval by existing tenants (where applicable) and issuance of building permits related to the portion of the Dublin Place Shopping Center where the Town Square would be located. Section 6. Entire Agreement. The MOU, as modified by this First Amendment, contains all of the agreements and understandings related to the subject matter hereof. Section 7. Remainder of MOU Unmodified. Except as set forth in this First Amendment, the Parties agree that the MOU is unmodified and in full force and effect and that no Party is in breach of any obligations thereunder. To the extent that the terms of the MOU conflict with the terms of this First Amendment, the terms of this First Amendment shall be controlling. ARAV-55373\2400145.1 2 116 Section 8. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF, the Parties have executed this First Amendment, effective as of the date first written above. CITY OF DUBLIN ASVRF 7300 Amador, LP a Delaware limited liability partnership By: Linda Smith, City Manager Attest: By: Marsha Moore, City Clerk Approved as to form By: John D. Bakker, City Attorney By: ASVRF Dublin Place GP Corporation, a Delaware corporation, its General Partner By: Name: Kirk Helaeson Its: Executive Vice President Date: ASVRF DUBLIN PLACE, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner By: Name: Kirk Helaeson Its: Executive Vice President Date: ASVRF 6960 AMADOR, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner By: Name: Kirk Helaeson Its: Executive Vice President Date: 3720871.1 ARAV-55373\2400145.1 3 117 Attachment 5 RESOLUTION NO. 30 — 22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A SECOND AMENDMENT TO THE MEMORANDUM OF UNDERSTANDING REGARDING DUBLIN PLACE SHOPPING CENTER WHEREAS, on October 15, 2019, the City Council adopted Resolution No. 107-19 approving a Memorandum of Understanding (MOU) between the City of Dublin and ASVRF Acquisitions, LLC, ASVRF Dublin Place, LP, and ASVRF 6960 Amador, LP also known as American Realty Advisors (ARA) for Dublin Place Shopping Center; and WHEREAS, on April 6, 2021, the City Council adopted Resolution No. 26-21 approving a First Amendment to the MOU; and WHEREAS, upon the City's request, ARA agreed to use commercially reasonable efforts to facilitate future development of the Shopping Center and site a Town Square, including the acquisition of 7300 Amador Plaza Rd. (the "Property"); and WHEREAS, the MOU outlined the terms between ARA and the City as it related to the joint commitment of funds towards the acquisition of the Property; and WHEREAS, due to the COVID-19 pandemic and the ongoing significant impact to owners and tenants of retail properties, priorities were shifted and substantial delays in negotiations occurred; and WHEREAS, ARA has commenced negotiations again with the remaining property owner; however, additional time is needed; and WHEREAS, the City requested, and ARA agreed, to extend the MOU for a period of 14- months. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Second Amendment to the Memorandum of Understanding between the City of Dublin and ASVRF 7300 Amador, LP, ASVRF Dublin Place, LP, and ASVRF 6960 Amador, LP regarding Dublin Place Shopping Center. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the amendments to the agreements, attached hereto as Exhibit A, and make any necessary, non -substantive changes to carry out the intent of this Resolution, as deemed appropriate by the City Manager. {Signatures on the following page} Reso. No. 30-22, Item 4.8, Adopted 04/05/2022 Page 1 of 2 118 PASSED, APPROVED AND ADOPTED this 5th day of April 2022, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Councilmembers Hu, Josey, Kumagai, McCorriston, and Mayor Hernandez ,-DocuSigned by: )vrASRIF7A46A ATTEST: DocuSigned by: warirtt C i tyb V l'e rlr4UA Reso. No. 30-22, Item 4.8, Adopted 04/05/2022 Page 2 of 2 119 DocuSign Envelope ID: CFB265AB-71 FA-4CBF-9A72-D81 BFACE7815 Exhibit A to the Resolution SECOND AMENDMENT TO MEMORANDUM OF UNDERSTANDING (Dublin Place Shopping Center) This Second Amendment to Memorandum of Understanding ("Second Amendment") dated as of April 5, 2022 ("Effective Date"), is entered into between and among the City of Dublin (the "City"), ASVRF 7300 Amador, LP, a Delaware limited partnership ("ASVRF 7300") as successor in interest to ASVRF Acquisitions, LLC, a Delaware limited liability company ("ASVRF Acquisitions"), ASVRF Dublin Place, LP, a Delaware limited partnership ("ASVRF Dublin") and ASVRF 6960 Amador, LP, a Delaware limited partnership ("ASVRF Amador" and collectively "Owners"). The City and Owners are each individually referred to as a "Party" and collectively referred to as the "Parties." Capitalized terms not defined in this First Amendment shall have the meanings specified in the MOU. RECITALS WHEREAS, ASVRF Acquisitions assigned all of its interest under the Purchase Agreement to ASVRF 7300 which has acquired 7300 Amador Plaza Road, Dublin, California, Assessor's Parcel No. 941-0305-027 (the "7300 Amador Property"), located within the Dublin Place Shopping Center (the "Shopping Center"); and WHEREAS, the Owners wish to develop new and more appropriate uses for the Shopping Center consistent with the City's Downtown Dublin Specific Plan, including the siting of a Town Square and the City is supportive of these efforts; and WHEREAS, Owners and the City desire to see the Covenants, Conditions & Restricts (CC&Rs) and Reciprocal Easement Agreement (REA) encumbering the Shopping Center amended to allow more appropriate uses at the Shopping Center, consistent with the City's Downtown Dublin Specific Plan, redevelopment opportunities of various areas within the Shopping Center, and/or improved signage; and WHEREAS, to bring specificity to their joint commitment and to set out in general terms and actions to encourage future development of the Shopping Center and siting of a Town Square, consistent with the City's Downtown Specific Plan, the Parties entered into a Memorandum of Understanding dated October 15, 2019 (the "MOU"); and WHEREAS, the Parties executed the First Amendment to the MOU on April 6, 2021 extending the term of the MOU to April 14, 2022; WHEREAS, in response to a request by the City, Owners have agreed to extend the Term of the MOU upon the terms and conditions set forth herein. NOW THEREFORE, the Parties hereby agree as follows: Section 1. Recitals. The Recitals stated above are hereby ratified by the Parties as being true, accurate and correct and are incorporated herein as if set forth in full. Section 2. Term. The Term of this MOU shall be extended to the close of business on June 30, 2023 and any other time periods specified in the MOU shall be extended accordingly. ARAV-55373\2400145.1 120 DocuSign Envelope ID: CFB265AB-71FA-4CBF-9A72-D81BFACE7815 Section 3. Entire Agreement. The MOU, as modified by this Second Amendment, contains all of the agreements and understandings related to the subject matter hereof. Section 4. Remainder of MOU Unmodified. Except as set forth in this Second Amendment, the Parties agree that the MOU is unmodified and in full force and effect and that no Party is in breach of any obligations thereunder. To the extent that the terms of the MOU conflict with the terms of this Second Amendment, the terms of this Second Amendment shall be controlling. Section 5. Counterparts. This Second Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF, the Parties have executed this Second Amendment, effective as of the date first written above. CITY OF DUBLIN ASVRF 7300 Amador, LP a Delaware limited liability partnership By: Linda Smith, City Manager Attest: By: Marsha Moore, City Clerk Approved as to form By: John D. Bakker, City Attorney By: ASVRF Dublin Place GP Corporation, a Delaware corporation, its General Partner By: .iv, o(kA4,sov, Name: Kirk Helgeson Its: Executive Vice President Date: March 24, 2022 ASVRF DUBLIN PLACE, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner DocuSigned by: By: 64, NavotA, --a1ccoeonnansase Name: KIrK helgeson Its: Executive Vice President Date: March 24, 2022 ARAV-55373\2400145.1 2 121 DocuSign Envelope ID: CFB265AB-71FA-4CBF-9A72-D81BFACE7815 ASVRF 6960 AMADOR, LP a Delaware limited partnership By: ASVRF Dublin Place GP Corporation, a Delaware corporation its General Partner By: ivto(ktivoti, Name: Kirk Helbeson Its: Executive Vice President Date: March 24, 2022 ARAV-55373\2400145.1 3 122