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HomeMy WebLinkAbout1992-068 . .. -, '. .,.. .... ~ 1 2 RESOLUTION NO. 92-68 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN UDAG GRANT 4 COMPLIANCE AGREEMENT BY AND AMONG THE CITY OF SAN BERNARDINO, THE REDEVELOPMENT AGENCY OF THE CITY OF 5 SAN BERNARDINO AND NEW FRONTIER COMMERCIAL PROPERTIES, INC., PERTAINING TO THE WESTS IDE SHOPPING CENTER 6 7 WHEREAS, the city of San Bernardino, California (the 8 "city"), is a municipal corporation and a charter city duly 9 created and existing pursuant to the Constitution and the laws of 10 the State of California; and 11 12 WHEREAS, the Community Development Commission of the 13 city of San Bernardino (the "Commission") on behalf of the 14 Redevelopment Agency of the City of San Bernardino (the 15 "Agency"), is a redevelopment agency, a public body, corporate 16 and politic of the State of California, organized and existing 17 pursuant to the Community Redevelopment Law (Part 1 of Division 18 24) commencing with section 33000 of the Health and Safety Code 19 of the State of California (the "Act)"; and 20 21 WHEREAS, the Redevelopment Plan for the Northwest 22 Redevelopment Project (the "Redevelopment Plan") was previously 23 approved and adopted by the Mayor and Common Council of the City 24 of San Bernardino (the "Council") by Ordinance No. MC-189, dated 25 July 6, 1982; and 26 27 WHEREAS, the Redevelopment Plan provides for the 28 redevelopment of real property pursuant to the Redevelopment Plan - 1 - 92-68 ' .' 1 by owners thereof or by parties seeking to acquire real property 2 from the Agency; and 3 4 WHEREAS, the Agency and New Frontier commercial 5 Properties, Inc., a California corporation (the "Developer") have 6 previously entered into a certain Disposition and Development 7 Agreement (the "DDA"), a copy of which is on file with the Agency 8 Secretary, pursuant to which, among other matters, the Developer 9 is to develop a commercial retail shopping center (the 10 "Project"); and 11 12 WHEREAS, in connection with the development of the 13 Project, the Developer has requested certain financial assistance 14 from the City and the Agency, which have agreed to assist in 15 funding a portion of the costs of the Project and in connection 16 therewith have proposed to use certain UDAG Grant Funds which may 17 be otherwise available to the city to fund a portion of the costs 18 of the Project; and 19 20 WHEREAS, in connection with the use of such UDAG Grant 21 Funds, the Secretary of the united States Department of Housing 22 and Urban Development ("HUD") and the City, entered into a UDAG 23 Grant Agreement, a copy of which is also on file with the Agency 24 Secretary and which pertains to the development of the Project 25 (the "UDAG Grant Agreement"); and 26 27 WHEREAS, in order to implement the provisions of the 28 UDAG Grant Agreement, the Secretary of HUD is seeking certain - 2 - 9:,1-68 1 assurances from the City, the Agency and the Developer pertaining 2 to the Project which assurances are set forth in that certain 3 UDAG Grant Compliance Agreement, a copy of which is attached 4 hereto as Exhibit "A" and incorporated herein by reference; and 5 6 WHEREAS, the city deems it desirable to execute the 7 UDAG Grant Compliance Agreement at this time to ensure the 8 delivery of UDAG Grant Funds from HUD to be used in connection 9 with the development of the Project. 10 11 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 12 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 13 14 SECTION 1. The Council hereby approves the proposed 15 UDAG Grant Compliance Agreement as attached hereto as Exhibit "A" 16 and incorporated herein and authorizes the Mayor and City Clerk 17 to execute the same with such non-substantial changes as may be 18 deemed to be appropriate by the City Attorney. 19 III 20 III 21 1/1 22 III 23 III 24 III 25 III 26 III 27 III 28 III - 3 - 92-68 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN UDAG GRANT COMPLIANCE AGREEMENT BY 2 AND AMONG THE CITY OF SAN BERNARDINO, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND NEW FRONTIER COMMERCIAL 3 PROPERTIES, INC., PERTAINING TO THE WESTSIDE SHOPPING CENTER 4 5 6 7 SECTION 2. This Resolution shall take effect upon adoption. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of 8 San Bernardino at a regular 9 thereof, held on the l7t:h day of 10 1992, by the following vote, to wit: meeting Februarv 11 12 Council Members: AYES NAYS ABSTAIN ABSENT 13 ESTRADA REILLY 14 HERNANDEZ MAUDSLEY 15 MINOR POPE-LUDLAM 16 MILLER x --X- ---X...- ---X...- -L- --X....- ---X..- 17 18 19 20 21 22 day of Th~ foregoing resolution ..;;L~h~, 1992. ? this /9 ht... / Approved as to form and legal content: 23 JAMES F. PENMAN City Attorney 24 ~ 25 By: 4~ ./ 26 SBEOI0092\DOC\186 27 28 - 4 - 92-68 1 EXHIBIT "A" 2 UDAG GRANT COMPLIANCE AGREEMENT 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A - 1 City of San Bernardino Res. No. 92-68 UDAG GRANT COMPLIANCE AGREEMENT THIS UDAG GRANT COMPLIANCE AGREEMENT (the "Agreement") is entered into this -1L- day of February, 1992, by and among the CITY OF SAN BERNARDINO (the "city"), a charter city duly organized and existing in accordance with the laws of the State of California, the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic, organized and existing in accordance with the laws of the State of California (the "Agency") and NEW FRONTIER COMMERCIAL PROPERTIES, INC., a California corporation (the "Developer"). The City and the Developer agree as follows: RECITALS WHEREAS, the City has applied to the united States Department of Housing and Urban Development ("HUD") for certain funding in the form of grant assistance under the Urban Development Action Grant ("UDAG") Program to undertake acti vi ties which are consistent with the provisions of section 119 of the Housing and Community Development Act of 1972, as amended (the "Act") and the UDAG Regulations; and WHEREAS, the Agency has previously entered into a certain Disposition and Development Agreement (the "DDA") with the Developer dated as of October 15, 1990, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference, pursuant to which the Developer is obligated to undertake the - 1 - 92-68 construction of a certain shopping center project within the boundaries of the City which shopping center project is more fully described in the DDA (the "Project"); and WHEREAS, the city has previously entered into that certain UDAG Grant Agreement as amended pursuant to that Amended/Revised UDAG Grant Agreement (collectively hereinafter referred to as the "UDAG Agreement"), dated as of December 13, 1991, pursuant to which the Secretary of HUD has agreed to provide certain UDAG moneys in an amount not to exceed $1,848,100 (the "UDAG Grant Funds") to be used by the city, as the Recipient under the UDAG Agreement, through its Agency for the purposes of assisting the Developer with the completion of the Project. In connection with the implementation of the UDAG Agreement, the Secretary of HUD is seeking certain assurances and representations from the Developer, the city as Recipient under the UDAG Agreement and the Agency with respect to the implementation and completion of the Project. NOW, THEREFORE, in consideration of the foregoing and mutual covenants and conditions set forth herein, the parties hereto agree as follows: Section 1. The City hereby certifies that all necessary building permits and other relevant permits have been - 2 - 92-68 obtained which are necessary to commence the "Recipient Activities" and the "Non-Recipient Activities", as such terms are defined in the UDAG Agreement. section 2. The city and the Developer agree that all title to the land necessary for the project is vested in the Developer in fee simple as evidenced by a copy of that certain Title Report attached hereto as Exhibit "B" and incorporated herein by this reference. section 3. The city hereby agrees, in connection with the development of the Project, that it shall make a grant to the Agency of not more than $1,848,100 of UDAG Grant Funds which UDAG Grant Funds shall be used for the purposes of completing the Project in accordance with Exhibit "D" of the UDAG Agreement. section 4. The Agency hereby agrees as follows: A. The Agency shall make available to the Developer not less than $3,200,000 in funds attributable to the CDBG Float Loans for the Project of which $800,000 shall be a loan to the Developer and $2,400,000 shall be in the form of a grant to be used to fund redevelopment activities necessary in connection with the Project. - 3 - . 92-68. B. The Agency has previously acquired the Project site and has assisted in the relocation of the existing property owners and tenants at a total cost of not less than $1,325,000. C. The Agency has conveyed fee simple title to the Project site to the Developer as evidenced by that certain Title Report as attached hereto as Exhibit "B". D. The Agency is prepared to permit UDAG Grant Funds that have been received by the city and HUD to be drawn down and disbursed for use in accordance with Exhibit "0" of the UDAG Agreement in a ratio to countable private funds of not more than $1.00 of UDAG Grant Funds to $2.98 of countable private funds expended on the Project. Countable private funds shall mean private funds in an amount equal to $5,500,000. section 5. The Developer hereby agrees as follows: A. The Developer shall carry out all of its Non- Recipient Activities ascribed to the Developer as set forth in Exhibit "C" to the UDAG Agreement within the time frames set forth in Exhibit "F" of the UDAG Agreement. - 4 - 92-68 B.The Developer has acquired fee simple title to the Project site from the Agency and agrees to complete the Project Elements, as described in the UDAG Agreement, on the Project at a total cost of not less than $12,073,100 in accordance with Exhibit "D" to the UDAG Agreement, using not less than $5,700,000 of private loan funds for which the Developer has already obtained a commitment from the National Bank of Long Beach, using not less than $800,000 of loan funds from the Agency, not less than $900,000 of grant funds from the Agency for tenant improvements, not more than $1,848,100 of UDAG Grant Funds from the Agency as the Agency receives such funds from the city and HUD, not less than a $1,500,000 in subsidies from the Agency and $1,325,000 of Agency funds in the form of land write down assistance. c. The Developer agrees to borrow from the National Bank of Long Beach not less than $5,700,000 for interim financing of the Project. D. The Developer has borrowed from the Agency and has personally guaranteed an amount of not less than $800,000 in funds for the financing of the Project. E. The Developer agrees to use UDAG Grant Funds received from the Agency of not more than $1,848,100 for the financing of the Project. - 5 - 92-68 . F. The Developer agrees to use a grant of not less than $1,500,000 of Agency funds for the site costs and soft costs, as well as a grant of $900,000 of Agency funds for the costs of certain tenant improvements necessary for the Project. G. The Developer guarantees that it will September 30, 1992. unconditionally and irrevocably complete the Project prior to section 6. The Developer further agrees that it shall use best efforts to cause the following jobs to be established in connection with the Project within 60 months of the date of Preliminary Approval which date was April 9, 1987: -total new permanent jobs: 248; -total new permanent jobs for low and moderate income persons: 161; -total new permanent jobs for JTPA-eligible persons: 99; -total new permanent jobs for minorities: 136. section 7. The Developer and the Agency hereby agree to comply with that certain Schedule of Performance attached to the DDA as Exhibit "6" thereto and incorporated herein by this reference. - 6 - 92--68 section 8. The Developer agrees to provide necessary data and information as to private investment and jobs relating to the UDAG Agreement to the Secretary of HUD and/or the City as may be requested. section 9. Third Party Contract Requirements. A. The City and the Developer agree that upon instruction by the Secretary of HUD, all Program Income, as said term is defined in the UDAG Agreement, which is received by the Developer, prior to completion of all of the Recipient Activities, as said term is defined in the UDAG Agreement, shall be deposited in escrow under arrangements approved by the Secretary of HUD, in order to provide funds to assure the completion of the Recipient Activities as defined in the UDAG Agreement. B. The city and the Developer agree that, unless otherwise provided in Exhibit "A" of the UDAG Agreement, all Program Income received by the Developer prior to completion of all Recipient Activities shall be transmitted to the City for payment of costs incurred for the Recipient Activities. C. The city and the Developer agree that all Program Income received by the Developer after the completion of all Recipient Activities, shall at the option of the city, either - 7 - 92-68 be transmitted to the City or used by the Developer with City approval, for community and economic development activities which would be eligible for assistance under Title 1 of the Act, unless otherwise provided in a close-out agreement between the City and HUD. D. The City and the Developer agree that the Developer and the City have obtained or have reasonable assurance that they will obtain, all federal, state and local governmental approvals and reviews required by law to be obtained by the City or the Developer for the Project. E. The Developer acknowledges that the Secretary of HUD, in selecting the city for the award of the UDAG Grant Funds, relied on in material part upon the assured completion of the Project and the Developer assures the city that such activities will be completed by the Developer. F. The Developer agrees to use its best efforts to create or cause to be created, within a time specified in Exhibit "A" of the UDAG Agreement, a specified number of new permanent jobs, including a specified number of new permanent job opportunities for minorities, JTPA-eligible persons, and persons who, at the time of their employment, will be persons of low and moderate income. - 8 - 92-68 G. The Developer agrees that the Developer shall (i) keep and maintain books, records, and other documents relating directly to the receipt and disbursement of the UDAG Grant Funds and (ii) any duly authorized representatives of the Secretary of HUD or the Controller General of the united States shall, at all reasonable times, have access to and the right to inspect, copy, audit, and examine all such books, records and other documents of the Developer, until the completion of all close-out procedures respecting the UDAG Grant and of the final settlement and conclusion of all issues arising out of the UDAG Grant. H. The Developer agrees that any duly authorized representative of the Secretary of HUD shall, at all reasonable times, have access to any portion of the Project in which the Developer is involved until the completion of all close-out procedures respecting this UDAG Grant. I. The Developer agrees that no transfer of UDAG Grant Funds by the City to the Developer shall be or be deemed an assignment of UDAG Grant Funds and that the Developer shall neither succeed to any rights, benefits or advantages of the City under this UDAG Agreement, nor attain any rights, privileges, authorities or interests in or under the UDAG Agreement. - 9 - 92-68 J. <The Developer and the city agree that during the term of the UDAG Agreement, said UDAG Agreement shall not be amended in any material respect after the approval and acceptance, without the written approval of the Secretary of HUD. "Material" shall be defined as anything which cancels or reduces any developmental, construction, jOb-creating, or financial obligation of the Developer by more than 10%, changes the sites or character of any development activity, or increases any time for performance by a party by more than thirty days. K. The City and Developer acknowledge that nothing contained in the UDAG Agreement, or in the DDA, nor any act of the Secretary of HUD, the City, or any of the parties, shall be deemed or construed by any of the parties or by any third persons, to create any relationship of third-party beneficiary, principal and agent, limited or general partnership, or joint venture, or of any association or relationship involving the Secretary of HUD. L. The city and the Developer agree and acknowledge that the city should not be liable to the Developer, or to any party except HUD, for the completion of, or the failure to complete, any activities which are a part of the Project, except those as specified in Exhibit "B" of the UDAG Agreement. - 10 - 92-68 M. The city and the Developer agree that except for approved eligible administrative and personnel costs, no member, officer, or employee of the City, or its designees, or agents, no consultant, no member of the governing body of the City or the locality in which the program is situated, and no other public official of the City or such locality or localities, who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a decision making process or gain insider information with regard to the Project, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project or in any activity, or benefit therefrom, which is part of this Project at any time during or after such person's tenure. N. The City and the Developer agree that a Project sign provision may be established by the Secretary of HUD. section 8. Miscellaneous: A. This Agreement shall bind and inure to the benefit of the successors and assigns of each of the parties hereto. - 11 - 92-68 B. Each party agrees to perform any further acts and execute and deliver any documents which may be necessary to carry out any provisions or intent of this Agreement. C. The parties hereby agree that this Agreement has been executed and delivered in the state of California and shall be construed, enforced and governed by the laws thereof. D. In the event any provision of this Agreement shall be held invalid or unenforceable, such provision shall be severable from, and such invalidity or unenforceability shall not be construed to have any effect on, the remaining portions of this Agreement. E. This Agreement contains the entire agreement between the parties hereto pertaining to the subject matter hereof, with the exception of the other agreements referenced explicitly or implicitly herein. F. This Agreement supercedes all prior and contemporaneous agreements and understandings of the parties with respect to the matters resolved herein and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof, except as set forth or referred to herein. - 12 - . . IN WITNESS WHEREOF, the parties have signed this UDAG Grant Compliance Agreement as of the date first above written. APPROVED AS TO FORM AND LEGAL CONTENT: BY~~J APPROVED AS TO FORM: AGENCY SPECIAL COUNSEL By:df'cLflr~~ SBEO\0092\DOC\185 02125/92 2:40 THE CITY OF SAN MAYOR, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: ERCIAL PROPERTIES, oration ----- - 13 -