HomeMy WebLinkAboutR33-Economic Development
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
ORJGINAL
FROM: Gary Van Osdel
Executive Director
SUBJECT:
Redevelopment Project Study and
Redevelopment Assistance Agreement -
HSB 1-215, L.P. & SE 1-215, L.P.
(collectively referred to as "Hillwood");
Amendment No. 2 to the Terra Nova
Planning and Research, Inc. Agreement; $2
Million Economic Development
Administration Grant (re: former Culligan
site and Agency Property - State College
Redevelopment Project Area)
DATE: August 8, 2005
Synopsis of Preyious Commission/Council/Committee Action(s):
On July 5, 2005, the Redevelopment Committee Members Estrada and McGinnis unanimously voted to recommend to the
Community Development Commission approval of a Redevelopment Project Study and Redevelopment Assistance Agreement
by and between the Agency and HSB 1-215, L.P., SE 1-215, L.P. ("HiIlwood").
Recommended Motion(s):
(Community Development Commission)
Resolution of the Community Development Commission of the City of San Bernardino
approving and authorizing the Executive Director of the Redevelopment Agency of the City
of San Bernardino ("Agency") to (1) Execute a Redevelopment Project Study and
Redevelopment Assistance Agreement by and between the Agency and HSB 1-215, L.P., SE
1-215, L.P. (collectively referred to as "Hillwood"); (2) Execute Amendment No.2 to the
Terra Nova Planning and Research, Inc. Agreement, as subsequently amended; and (3)
authorize the Executive Director to prepare and submit a $2,000,000 grant application to the
Economic Development Administration (EDA) related to improvements to the University
Parkway 1-215 freeway interchange (former Culligan Site and Agency Property - State
College Redevelopment Project Area)
Contact Person(s):
Project Area(s)
Gary Van asdel/Maggie Pacheco
State College
Phone:
(909) 663-1044
6
Ward(s):
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0Agreement(s)/Contract(s) 0 Map(s) 0 Letters
FUNDING REQUIREMENTS
113,000
Source:
Developer Funds
SIGNATURE:
P:\Agendas\Comm Dev Commission\COC 2005\05-08-15 HSB 1-215. LP& SE 1-215, L.P,doc
COMMISSION MEETING AGENDA
Meeting Date: 08/15/2005
Agenda Item Number: ~ 33
ECONOMIC DEVELOPMENT AGENCY
ST AFF REPORT
REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT-
HSB 1-215, L.P. & SE 1-215, L.P. (COLLECTIVELY REFERRED TO AS "HILLWOOD");
AMENDMENT NO.2 TO THE TERRA NOVA PLANNING AND RESEARCH, INC.
AGREEMENT; $2 MILLION ECONOMIC DEVELOPMENT ADMINISTRATION GRANT (RE:
FORMER CULLIGAN SITE AND AGENCY PROPERTY - ST ATE COLLEGE
REDEVELOPMENT PROJECT AREA)
BACKGROUND:
By the start of World War II, Mr. Culligan developed a facility in San Bernardino for manufacturing silica
gel, a critically needed de-hydrating material. After the war, zeolite production was shifted to the San
Bernardino plant. The company was incorporated in 1945 and its name changed to Culligan Inc. in 1952. In
1970, its name was changed to Culligan International Company (the "Culligan Site"). In 1981, the Agency
commenced proceedings to condemn land owned by Culligan. This was due to a "run off' problem
from/through the Culligan property damaging the adjacent golf course. On November 30, 1981, a Settlement
Agreement and Release of Claims was executed between Culligan and the Agency wherein the Agency was
to acquire the parcel and a basin and drain system was to be constructed. The Agency acquired title to
approximately 10.53 acres of vacant land (which is used as an overflow for drainage) on the south side of 1-
215 (APN: 0148-011-39 and APN: 0266-073-08) (the "Agency Property") and is located adjacent to the
property commonly referred to as the Culligan Site at an approximate purchase price of$146,400.
On October 19, 2004, HSB 1-215, L.P., SE 1-215, L.P. (collectivcly referred as "Hill wood") acquired title to
the Culligan Site which is comprised of the following: APN: 0266-073-02, 04, 05, 06, 09 and APN: 0148-
011-40 all of which comprises the project site (the "Project Site"). APN: 0148-011-40 is adjaccnt to the
Agency Property.
CURRENT ISSUE:
On May 17, 2005, Hillwood informed the Agency of their ownership of the Project Site and that they
planned to construct a distribution facility on the Project Site. Hillwood desires to enlarge the Project Site by
acquiring the adjacent Agency Property. The Agency Property is unimproved and used for drainage
overflow and lies between the Project Site and the Shandin Hills Golf Course. If the Project Site is enlarged
to include the Agency Property, it would be possible for Hillwood to construct approximately 2,000,000
square feet of distribution facilities (the "Project").
As part of the Project, a new storm drain detention facility would be constructed. Currently, there is a storm
drain detention pond on the Agency Property (the "Existing Storm Drain Facility"). However, it will need to
be reconfigured and enlarged in order to accommodate the storm drainage from thc Project Site and the
adjacent areas, which are presently serviced by the Existing Storm Drain Facility. It is proposed that the new
Stonn Drain Facility will be partially constructed on the Project Site and on the Agency Property.
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COMMISSION MEETING AGENDA
Meeting Date: 08/15/2005
Agenda Item Number:
Economic Development Agency Staff Report
HSB 1-215, L.P. and 1-215, L.P. Agreement
Page 2
The Agency desires to consider and study the proposed Project and in so doing, should aid in fostering the
economic development goals and objectives of both the City and the Agency within the State College
Redevelopment Project Area (the "Project Area").
Consequently, Staff recommends that the Community Development Commission consider entering into a
Redevelopment Project Study and Redevelopment Assistance Agreement (the "Agreement") with Hillwood
to determine the feasibility of the Project Site, which could include the disposition of the Agency Property.
Under the Agreement, the Agency may retain the services of community planning and environmental
consultants to assist in the preparation of the various investigations, surveys and reports including an
Environmental Impact Report (EIR). These various investigations, surveys and reports including an EIR
would study the area bounded by the 1-215 Freeway on the east, University Parkway on the north, Cajon
Boulevard on the west, and the Shandin Hills Golf Course on the south (the "Study Area").
Those components that make up the Study Area include the Agency Property, the proposed Project, the
proposed University Parkway/I-215 Freeway interchange, the proposed University Parkway widening west
of the 1-215 Freeway, and the proposed grade separation of the Burlington Northem Santa Fe Rail Line at
State Street. Thus, given the scope of the entire project, Development Services has determined that an ErR
for the Project will be required.
Currently, Terra Nova Planning and Research, Inc. ("Terra Nova") is under contract with the Agency for
planning and environmental report review/preparation services and in the interest of time, it is therefore
recommended that Terra Nova prepare the EIR with Hillwood paying the contract expenses for Terra Nova
in the amount of $113,000. To prepare this EIR, the Terra Nova 2004 Professional Services Agreement (the
"Terra Nova Agreement") will need to be amended to extend the term of the Terra Nova Agreement for an
additional twelve (12) months through May 3,2007 and increasing the monetary compensation from $60,000
to $173,000.
Moreover, subject to Hillwood's pre-approval, Hillwood would bear all costs associated with the feasibility
analysis and any other third party costs. The Agency will bear expenses and fees for its own legal services.
The term of the Agreement will be for a penod of two (2) years following the approval by the Commission
and will automatically terminate unless it is extended by mutual consent of the parties.
If following the study and evaluation of the Project it is mutually determined that it is feasible to move the
Project forward, an Owner Participation/Disposition and Development Agreement (the "OPAlDDA") with
Hillwood will be prepared and presented at a future date for the Mayor and Common Council and
Community Development Commission consideration.
On a final important matter, the Agency has the opportunity to apply for a $2,000,000 grant from the
Economic Development Administration (the "EDA Grant"). If successful in obtaining the EDA Grant along
with contributions from Hillwood and potential tax increment funds from the Project Area, it could be used
for the construction of the improvements to the University ParkwaylI-215 Freeway interchange to help
mitigate traffic congestion in the Project Area.
.._u_o.._n_._ ___________...__... _______u___aon___n._ ______u___.._____."._ u_____n_nnn. _u____________n__ ______u_n_nn
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COMMISSION MEETING AGENDA
Meeting Date: 08/15/2005
Agenda Item Number:
Economic Development Agency Staff Report
HSB 1-215, L.P. and 1-215, L.P. Agreement
Page 3
ENVIRONMENTAL IMPACT:
This Agreement is exempt from California Environmental Quality Aet (CEQA)
FISCAL IMPACT:
Per the Agreement, Hillwood will reimburse the Ageney for any and all "Project Study Costs" and expenses
of third party consultants, hired by the Agency with Hillwood's approval, including preparation and
completion of the EIR. The Agency will cover the costs for its own legal fees in connection with the Project
Study.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
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COMMISSION MEETING AGENDA
Meeting Date: 08/15/2005
Agenda Item Number:
RESOLUTION NO.
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO (1) EXECUTE A REDEVELOPMENT PROJECT
STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT BY AND
BETWEEN THE AGENCY AND HSB 1-215, L.P., SE 1-215, L.P.
(COLLECTIVELY REFERRED TO AS "HILLWOOD"); (2) EXECUTE
AMENDMENT NO. 2 TO THE TERRA NOVA PLANNING AND
RESEARCH, INC. AGREEMENT, AS SUBSEQUENTLY AMENDED;
AND (3) AUTHORIZE THE EXECUTIVE DIRECTOR TO PREPARE
AND SUBMIT A $2,000,000 GRANT APPLICATION TO THE
ECONOMIC DEVELOPMENT ADMINISTRATION (EDA) RELATED TO
IMPROVEMENTS TO THE UNIVERSITY PARKWAY 1-215 FREEWAY
INTERCHANGE (FORMER CULLIGAN SITE AND AGENCY
PROPERTY - STATE COLLEGE REDEVELOPMENT PROJECT AREA)
3
4
5
6
7
8
9
10
WHEREAS, the Community Development Commission of the City of San Bernardino
11
(the "Commission") is the governing board of the Redevelopment Agency of the City of San
12
13
Bernardino (the "Agency"), a public body corporate and politic, organized and existing pursuant
14
to the Community Redevelopment Law (California Health and Safety Code Section 33000, et
15
~.); and
16
WHEREAS, the Agency owns certain land identified as APN: 0148-011-39 and APN:
17
0266-073-08 (the "Agency Property") within the State College Redevelopment Project Area
18
(the "Project Area"); and
19
WHEREAS, HSB 1-215, L.P. and SE [-215, L.P. (collectively referred to herein as
20
"Hillwood") owns separate parcels identified as APN: 0266-073-02, 04, 05, 06, 09 and APN:
21
0148-011-40 (the "Project Site") which together comprise a future development site adjacent to
22
the Agency Property; and
23
WHEREAS, on May 17,2005, the Agency received a request from Hillwood desiring to
24
enlarge the Project Site by acquiring the Agency Property; and
25
-1-
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WHEREAS, the Agency is prepared to consider and study the prOVISIon of certain
2
redevelopment assistance to Hillwood to facilitate the assembly of the Agency Property and the
3
Project Site into developable parcels ofland so as to foster the economic development goals and
4
objectives of both the City of San Bernardino (the "City") and the Agency as it relates to the
5
redevelopment plan for the Project Area and the Agency has designated for such study
6
purposes, the land bounded by the 1-2 1 5 Freeway to the east, University Parkway to the north,
7
8
Cajon Boulevard to the west and the Shandin Hills Golf Course to the south as the study area
9
(the "Study Area") for such study; and
10
WHEREAS, the Agency intends to initiate certain additional studies and proposals to
11
address a number of issues of community concern in the Study Area relating to elimination and
12
prevention of the spread of blight from the Study Area; and
13
WHEREAS, Hillwood is qualified to assist the Agency to undertake the study of
14
specific proposals and plans for a coordinated and economically sustainable redevelopment
15
project in the Study Area, which will require specific study, evaluation, and planning by the
16
City and Agency, as applicable, of appropriate and feasible community redevelopment program
17
alternatives; and
18
WHEREAS, the Agency will be the Lead Agency in the preparation of a Draft
19
Environmental Impact Report (the "DEIR") which DEIR will include the review of the
20
21
proposed Hillwood development; the proposed University Parkway and 1-2 1 5 Freeway
22
interchange; the proposed widening of University Parkway west of the 1-2 1 5 Freeway; and the
23
proposed grade separation of the Burlington Northern Santa Fe Rail line at State Street; and
24
WHEREAS, the Agency currently has Terra Nova Planning and Research, Inc. ('Terra
25
Nova") under contract for planning and environmental report review/preparation services and
-2-
r'lAgendu\ResoJulion.\Rnolution.\lOOSIOS-08-IS HSB I-lIS, Lr. & Sf I-liS, J..r. Run.doc
desires to use Terra Nova to prepare the DEIR based on their knowledge and expertise (the
2
"Agreement"); and
3
WHEREAS, the monetary amount of the Terra Nova contract will need to be increased
4
to cover the cost of the DEIR and the term of the Agreement will need to be extended for two
5
(2) years ("Amendment No.2"); and
6
WHEREAS, the Agency has an opportunity to apply for a $2,000,000 Economic
7
8
Development. Administration Grant (the "EDA Grant") to be used as part of the funding
9
necessary for the proposed improvements to the University Parkway and 1-215 Freeway
10
interchange.
II
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
12
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
13
FOLLOWS:
14
Section 1.
That the Community Development Commission hereby authorizes and
15
approves the Agreement by and between the Agency and Hillwood in the form as presented at
16
the meeting of the Commission at which Ihis Resolution is adopted and hereby authorizes the
17
Executive Director to execute the Agreement on behalf of the Agency together with such
18
technical and conforming changes as recommended by the Executive Director and approved by
19
the Agency Counsel.
20
Section 2.
That the Community Development Commission hereby authorizes and
21
22
approves Amendment No. 2 to the Terra Nova Agreement increasing the monetary
23
compensation to a not to exceed limit of$173,000.00 and modifies the term of the Agreement in
24
the form as presented at the meeting of the Commission at which this Resolution is adopted and
25
hereby authorizes the Executive Director to execute Amendment No.2 on behalf of the Agency
-3-
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together with such technical and conforming changes as recommended by the Executive
2
Director and approved by the Agency Counsel.
3
Section 3.
That the Community Development Commission authorizes the Executive
4
Director to prepare and submit the necessary application and any documentation necessary to
5
apply for the $2,000,000 Economic Development Administration (EDA) Grant.
6
Section 4.
7
/II
8
9 /II
10 III
11 /II
12
III
13
/II
14
III
15
16 /II
17 /II
18 /II
19
III
20
/II
21
22 /II
23 /II
24 III
25
III
The Resolution shall become effective immediately upon its adoption.
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2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO (I) EXECUTE A REDEVELOPMENT PROJECT
STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT BY AND
BETWEEN THE AGENCY AND HSB I-2l5, L.P., SE 1-215, L.P.
(COLLECTIVELY REFERRED TO AS "HILLWOOD"); (2) EXECUTE
AMENDMENT NO. 2 TO THE TERRA NOVA PLANNING AND
RESEARCH, INC. AGREEMENT, AS SUBSEQUENTLY AMENDED;
AND (3) AUTHORIZE THE EXECUTIVE DIRECTOR TO PREPARE
AND SUBMIT A $2,000,000 GRANT APPLICATION TO THE
ECONOMIC DEVELOPMENT ADMINISTRATION (EDA) RELATED TO
IMPROVEMENTS TO THE UNIVERSITY PARKWAY 1-215 FREEWAY
INTERCHANGE (FORMER CULLIGAN SITE AND AGENCY
PROPERTY - STATE COLLEGE REDEVELOPMENT PROJECT AREA)
3
4
5
6
7
8
9
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
10
Community Development Commission of the City of San Bernardino at a
11
meeting thereof, held on the
day of
, 2005, by the following vote to wit:
12
Commission Members:
Abstain
Ayes
Nays
Absent
13
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLY
JOHNSON
MC CAMMACK
14
15
16
17
18
19
20
Secretary
21
The foregoing resolution is hereby approved this
day of
,2005.
22
23
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
24
25
By:
-5-
r:\A~fndas\RfIOlulions\Rl'soJutions\20115\O~08.15 HSB 1-215, LoP, & SE 1-215, L.r. Re!o.dot
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
AND HSB 1-215, L.P., AND SE 1-215, L.P. ("HILL WOOD")
REDEVELOPMENT PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE AGREEMENT
THIS REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE
AGREEMENT (this "Agreement") is dated as of , 2005 (the "Agreement"), and is
cntered into by and between HSB 1-215, L.P., SE 1-215, L.P. (collectively referred to herein as
"Hill wood"), and the Redevelopment Agency of the City of San Bernardino, a body corporate and
politic (the "Agency"), in light of the facts set forth in the following recital paragraphs:
RECITALS
A. The Agency owns certain land as generally depicted and identified on Exhibit "A" (the
"Agency Property" as noted thereon) which is vacant land graded and improved currently for use as a
flood control detention basin; and
B. Hillwood (an affiliate of Hillwood/San Bernardino, LLC) owns separate parcels which
together comprise a future development site in the City of San Bernardino (the "City") near the
intersection of the 1-215 Freeway and University Boulevard, as generally depicted and identified on
Exhibit "A" (the "Project Site"), which Project Site is located adjacent to the Agency Property; and
C. Hillwood seeks to enlarge the Project Site by acquiring the Agency Property and
reconfiguring the parcels to maximize the development potential and to increase the assessed valuation
of the Project Site and the Agency Property; and
D. The Agency is prepared to consider and study the proVIsIon of certain redevelopment
assistance to Hillwood to facilitate the assembly of the Project Site with the Agency Property into
developable parcels of land so as to foster the community economic development goals and objectives
of the City and to consider the pledge of certain tax increment revenucs to assist in the financing of a
portion of the costs of (i) the on-ramp improvements from the westbound University Boulevard to the
southbound 1-215 Freeway, (ii) the costs of roadway widening on the eastbound University Boulevard
west of the 1-215 Freeway, and (iii) adding additional on-ramp lanes to the southbound 1-215 Freeway
at University Boulevard; it is anticipated that Hillwood may be required to remit a cash contribution to
the above described freeway and roadway improvements to assist in the funding thereof; and
E. The Agency Property and the Project Site, together with other properties in the vicinity of
the Project Site and Agency Property as generally shown on the attached Exhibit "B", constitute an
area that should be studied by the Agency as provided in this Agreement (the "Study Area"); and
F. The Agency intends to initiate certain additional studies and proposals to address a number
of issues of community concern in the Study Area relating to elimination and prevention of the spread
of blight through more effective access to the University Boulevard and the 1-215 Freeway interchange
especially during certain peak hours of travel to encourage the redevelopment of the Project Site and
other properties within the Study Area; and
1
P IAgendas\Agenda Al1achments\Agnnts-Amend 2005\05-08-15 HSB [.215. L P & SE ].21 S. LP doc
G. Hillwood is qualified to assist the Agency to undertake the study of specific proposals and
plans for a coordinated and economically sustainable redevelopment project on the Agency Property
and the Project Site, which will require specific study, evaluation and planning by the City and
Agency, as applicable, of appropriate and feasible community redevelopment program alternatives;
and
H. A storm drain detention pond currently exists on the Agency Property (the "Existing Storm
Drain Facility"), and in conjunction with Hillwood's development and operation of a project on the
Project Site consisting of an industrial park with related commercial, industrial and office components
currently planned to consist of approximately 2,000,000 square feet of new development (the
"Project"), it will be necessary for a newly configured storm drain detention facility to be constructed
partially on the Project Site and partially on the Agency Property, as an enlargement of the Existing
Storm Drain Facility, to accommodate the storm drainage from the Project and the adjacent areas
which are presently serviced by the Existing Strom Drain Facility (the "New Storm Drain Facility");
and
1. The Agency supports Hillwood's proposed redevelopment of the Project and desires to
convey the Agency Property to Hillwood subject to the parties approving and executing a final
agreement with respect thereto after adhering to all applicable provisions of State law for the sale or
transfer of the Agency Property; and
J. Hillwood has previously acquired the property sometimes commonly referred to as the
"Culligan Site" which comprise the entirety of the Project Site and may at its sole discretion, but is
under no obligation to do so, acquire additional portions of the Study Area on terms which are
economically feasible for Hillwood, and which are also acceptable to all interested persons; and
K. Hillwood and the Agency believe it is appropriate for the Agency, in consultation with
Hillwood, to undertake certain redevelopment studies and to incur certain costs, in consultation with
Hillwood, as part of a program for the study of feasible redevelopment programs for the Agency
Property, subject to the terms and conditions as set forth below.
NOW THEREFORE, IN CONSIDERA nON OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, HILLWOOD AND THE AGENCY HEREBY AGREE, AS
FOLLOWS:
1. Hillwood Acknowledl?ments and Term of Al?reement.
a. Hillwood hereby acknowledges and agrees that no provision of this Agreement shall be
deemed to be an offer by the Agency or an acceptance by the Agency of any offer or proposal from
Hillwood to convey any interest in the Agency Property or the Study Area to Hillwood. Any studies
relating to the Study Area, the Agency Property or the Project Site, and the Project that may hereafter
be undertaken by Hillwood, in its sole discretion shall be the sole responsibility of Hillwood and shall
not be deemed to be undertaken for the benefit of the Agency and the City.
b. The qualifications and identity of Hillwood and its principals are of particular concern
to the Agency. The Agency relied on these qualifications and identity in entering into this Agreement
with Hillwood. During the term of this Agreement, no voluntary or involuntary successor-in-interest
of Hillwood shall acquire any right or power under this Agreement except pursuant to an assignment
2
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approved by the Agency Executive Director as provided below. Except as provided below, Hillwood
shall not assign all or any part of this Agreement, or any rights hereunder, except to an affiliate entity
(meaning an entity under common control with Hillwood) that is a successor owner of the Project Site,
without the prior written approval of the Agency Executive Director, which the Agency Executive
Director may grant or refuse in his or her sole and absolute discretion.
c. Hillwood shall promptly notify the Agency in writing of any and all material changes in
the identity of the business entities in control of Hillwood, as well as any transfer of more than 50% of
the ownership interests in Hillwood. Upon the occurrence of any such significant or material change,
whether voluntary or involuntary, in the ownership control of Hillwood that has not been approved in
writing by thc Agency Executive Director, prior to the time of such change, the Agency may terminate
this Agreement by serving written notice of such termination, referencing this Section, on Hillwood.
However, Hillwood may convey the Project Site to a new entity to allow for an ownership position of
an investment partner, with an affiliate of Hillwood being the general partner of such entity, and such a
transfer is permitted, with such successor owner of the Project Site being considered as "Hillwood"
under this Agreement.
d. This Agreement shall automatically terminate, without further notice or action, and be
of no further force or effect two years following the Effective Date, unless prior to that time:
(1) the parties execute the Project OP A, as described below, which will include,
without limitation, other relevant community redevelopment covenants acceptable to the Agency and
such other tem1S and conditions mutually acceptable to the parties, in which case this Agreement shall
terminate on the effective date of the Project OPA; or
(2) Hillwood has exercised its right to extend the term of this Agreement for an
additional ninety (90) days upon written notice to the Agency Executive Director delivered prior to any
termination of this Agreement; provided, however, as a condition to such extension, Hillwood shall
have completed the Project Study as required by Section 3.b. and the economic feasibility study as
required by Section 3.g.; or
(3) the parties each agree to extend the term of this Agreement in writing to a
specific date, subject to the Agency first making a finding based upon written documentation and other
facts presented to verify that satisfactory progress is being made to complete the activities to be
performed by Hillwood set forth in Section 3; or
(4) a party terminates this Agreement as provided under Section 19.
2. The Proiect.
Subject to the terms and conditions of this Agreement, the Agency authorizes Hillwood to enter
onto the Agency Property for the sole purpose of conducting inspections and testing (i.e., no other
construction activities are permitted nor is any earth movement work permitted except in furtherance
of site inspection and testing) as are reasonably required or necessary for determining the feasibility of
the acquisition and redevelopment of the Agency Property for undertaking, in combination with the
Project Site, the commercial development project as generally described in Recital H. hereto, and the
potential acquisition of other portions of the Study Area as necessary to provide for adequate ingress
and egress to the Project Site. The Project Site and the Agency Property are located within the State
3
P IAgcnda$IAgend3 AnachmenlsIAgrmls-'\mend 2005\05-08-15 HS81-215, L P & SE: 1.215, LP doc
College Redevelopment Project Area of the Agency, and the Agency has entered into this Agreement
on the prospects of the possible transfer of the Agency Property in furtherance of the Project which
will enhance the remaining redevelopment efforts of the Agency within State College Redevelopment
Project Area and the Study Area.
3. Ne!!otiation Period, Proiect Study and Proiect Study Costs.
a. The rights and duties of the parties established by this Agreement shall commence
following its approval by the governing body of the Agency when it has been fully executed by the
parties within the period of time authorized in Section 17 (such date of final execution by both parties
being referred to herein as the "Effective Date"). This Agreement will continue in effect until a date
which is two years from the Effective Date unless such date shall have been first extended as
authorized under Section I.d. Such time period during which this Agreement shall be in effect
(including any extensions of time approved by the Agency and as other extensions of time are
specifically authorized in this Agreement) is referred to as the "Negotiation Period".
b. Within ninety (90) days following the Effective Date, Hillwood shall submit a site plan
for the Agency Property to the Agency and the Agency and Hillwood shall initiate the preparation of a
feasibility study for the redevelopment project proposed by Hillwood (the "Project Study"). The
Agency may retain the services, but is under no obligation to do so, of a firm of community
redevelopment planning and environmental consultants to assist in the preparation of the various
investigations, surveys and reports appropriate in connection with the Project Study and the evaluation
of the Project proposed by Hillwood. Such consultants shall be retained by the Agency but the
contracts therefore shall be approved by Hillwood as a condition precedent for the assumption of the
payment obligations by Hillwood for all such contracts. In the event the Agency does not retain such
consultants or Hillwood should refuse to approve any consultants proposed to be retained by the
Agency, then Hillwood shall have the responsibility to retain consultants mutually acceptable to
Hillwood and the Agency at its sole cost and expense, if Hillwood desires for the purpose of this
Agreement to be continued. Hillwood recognizes its obligations to reimburse the Agency and the City
for all consultant costs incurred by either the City or the Agency in furtherance of their review of all
documents, studies and reports prepared by or on behalf of Hill wood pursuant to this Agreement.
The Agency and Hillwood shall use commercially reasonable efforts to cause the initial phase
of the Project Study as evidenced by the completion of an "Initial Study" as this term is defined under
the California Environmental Quality Act, as amended ("CEQA"), to be completed for the Project
within ninety (90) days following the Effective Date at the sole cost of Hillwood. The Initial Study
may be accepted and processed by either the Agency or the City as the "lead agency" as this term is
defined in CEQA and such determination of the "lead agency" shall be made at a later date by the City.
Thereafter, provided Hillwood has completed the studies described in Section 3g(l) and (2) in
sufficient detail to be mutually acceptable to Hillwood and the Agency, and in the event the Initial
Study discloses that the Project will have a significant effect on the environment that cannot be
mitigated to a status that is less than significant, the Agency and Hillwood shall use commercially
reasonable efforts to cause a draft environmental impact report for the Project to be circulated for
public comment and review within sixty (60) days thereafter. Subject to the privilege of either party to
suspend the Project Study prior to its completion as set forth in Section 19, each of the parties
presently believes that the Project Study can be completed within one hundred eighty (180) days
following the Effective Date.
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c. Hillwood may modify the description of the Project at any time; provided, however,
that substantial modifications of the Project shall:
(I) be subject to the acceptance and approval of the Agency;
(2) depending on the nature of such a modification, a suitable modification of the
environmental and other elements of the Project Study as modified may also be indicated.
The Agency may request that Hillwood consider modifications to the description of the Project
from time-to-time. Each such modification shall be subject to the reasonable approval of Hill wood.
d. The Agency shall during the course of the Project Study consider the specific terms and
conditions of redevelopment assistance which Hillwood may propose to include in the Project OPA;
provided, however, the Agency reserves the sole and absolute discretion to accept, reject or modify any
such proposed term or condition to the Project OP A in its sole discretion.
e. During the course of the Project Study, Hillwood shall pay for any and all "Project
Study Costs" and expenses of third party consultants who are engaged by the Agency and/or Hillwood
under written contract to undertake one or more elements of the Project Study, which the Agency at its
sole discretion has elected to undertake with the prior written consent by Hillwood as to the payment
of related consultant costs and expenses. Project Study Costs include third party costs incurred by
Hillwood in connection with the preparation or submission of any information relating to the Project
on which any element of the Project Study may be based, including civil engineering expenses,
architectural fees, accounting fees and similar expenses. Each party shall bear its own legal fees and
costs in conncction with the Project Study.
f. All third-party consultants, if any, retained by the Agency at its sole cost and expense to
prepare any study or document as part of the Project Study for the benefit of the Agency review and
consideration of the Project OPA shall be subject to the sole control and direction of the Agency. The
work product of any such person shall be the property of the Agency and the Agency shall have the
right to use and republish such work product for any purpose.
g. Subject to the terms and conditions of this Agreement, Hillwood and the Agency shall
undertake an economic feasibility study of the Project as part of the Project Study consisting of the
elements as set forth below:
(I) Preparation by Hillwood in consultation with the Agency of a preliminary
financial feasibility study/analysis for the development of the Project setting forth the plan for the
phasing of Project development, if any, and an estimate of development costs, including, without
limitation, the following:
(i) projections of debt and equity required for the costs of the Project;
(ii) projections of public (City, State and federal) financial assistance
anticipated for the Project from grants, Agency tax increment revenues
and bond proceeds, and of financial assistance from Hillwood;
(iii) projections of overall Project value and property taxes;
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(iv) projections of the costs and benefits to the City and the Agency for all
construction, maintenance and operations of all proposed public
improvements;
(v) projections of the costs of additional or increased levels of public
services; and
(vi) projections of any new public revenues anticipated to be generated by
the Project, by phase, if applicable, and upon completion of the Project.
An initial draft of a document including the study elements identified in subparagraphs
(i) through (vi), inclusive, above shall be completed by Hillwood and submitted to the Agency within
one hundred eighty (180) days following the Effective Date. Thereafter the parties shall refine the
draft document as submitted by Hillwood in accordance with a schedule of refinement work for such
studies to be mutually approved by the parties.
(2) Prior to the time when the Initial Study is completed by the lead agency,
Hillwood in consultation with the Agency, shall have prepared a proposed conceptual development
plan for the Project, to include, without limiting:
(i) proposed zoning and General Plan changes, if any, necessary to
accommodate the Project; and
(ii) proposed time schedule and cost estimates for the development of
proposed public and private infrastructure upgrades, proposed publicly
owned facilities, public improvements, public infrastructure and private
development including railroad grade separation crossings on State
Street, University Boulevard roadway widening and required 1-215
Freeway on-ramps and off-ramps as may be required; and
(iii) proposed financing plan identifying the timing of receipt by Hillwood
and the Agency, as applicable, of the financing sources for all private
and public improvements proposed in the Project, by phase, if
applicable.
The conceptual development plan for the Project as described above may be revised
from time-to-time in accordance with a schedule of preparation and revisions as may be mutually
approved by the parties.
h. Hillwood shall inform the Agency in writing whether based on the information set forth
in Section 3.g., Hillwood believes that the Project is feasible prior to the time when the Agency shall
cause a "Notice of Preparation" or a "Notice of Intention to Adopt a Negative Declaration" as these
terms are defined in CEQA, as applicable, to be circulated to interested person or responsible agencies
for the Project. Thereafter, Hillwood and the Agency may proceed to negotiate the final form of an
owner participation agreement recognizing that Hillwood is the owner of land within the State College
Redevelopment Project Area identified as the Project Site and in which the specific terms for the
redevelopment of the Property may be set forth on terms mutually acceptable to the parties (the
"Project OPA"). No final Project OPA shall be entered into unless and until the City or the Agency
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completes the CEQA review of the Project as provided in Section 3.b., herein. No construction
activities on the Agency Property may be commenced by or on behalf of Hillwood before the final
Project OPA has been executed by all of the Parties, unless approved in writing by the Agency.
1. Hillwood shall submit each of the items of information described in this Section to the
Agency Executive Director, within the time periods set forth above. Within twenty (20) calendar days
after receipt of any such information, the Agency Executive Director shall determine whether such
information is satisfactory. If the specific item of information is unsatisfactory to the Agency
Executive Director, he or she shall notify Hillwood in writing of the reason or reasons that the
information is unsatisfactory. If the Agency Executive Director does not make a determination
regarding any item of information submitted by Hillwood under this Section 3, within twenty (20)
calendar days after receipt of such infomlation, the information shall be deemed by the Agency to have
been submitted in acceptable form by Hillwood. The determinations to be made by the Agency
Executive Director under this Section in no way bind or constitute the approval of the Agency
regarding, without limitation, plans, specifications, engineering, architecture, uses, tenants, sale prices,
rental rates, the Project or the Project OP A.
4. Oblil!ations of Hillwood.
During the Negotiation Period, Hillwood shall proceed diligently and in good faith to perform
the following:
a. Consider the redevelopment of the Project, including without limitation the selection of
tenants and the design of improvement elements as appropriate for the Project;
b. Review and provide the Project Study information described in Section 3 and provide
comments on draft versions of any CEQA document prepared as part of the Project Study and the
Project OP A and, if acceptable to Hillwood, submit an executed copy of the final form of the Project
OPA to the Agency Executive Director on or before the end of the Negotiation Period (or such later
date corresponding to an authorized extension of the Negotiation Period); and
c. Consult with the Agency on a regular basis and keep the Agency advised on the
progress of Hill wood in completing its obligations under this Agreement.
5. Al!ency Not to Nel!otiate with Others.
a. The Agency, currently, deems the disposition and the redevelopment of the Agency
Property for a feasible Project to be appropriate and Hillwood appears to be well qualified to undertake
the task of planning the details for the acquisition and development of the Agency Property.
b. During the Negotiation Period, the Agency shall not negotiate with any other person or
entity regarding either the disposition of any of the Agency Property or the redevelopment of the
Project. The term "negotiate", as used herein, shall be deemed to preclude the Agency from agreeing
to any other offer or proposal from a third party to either acquire from the Agency any interest in the
Agency Property or the Study Area (in whole or in part) or dcvelopment of the Project in the Study
Area, and from discussing the specifics of other redevelopment proposals for the Study Area with third
persons or entities; provided, however, any person may (i) submit and the Agency may consider any
proposal for the disposition and/or redevelopment of lands adjacent to the Study Area and (ii) submit
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proposals to the Agency as a public agcncy with respect to the Agency Property provided that the
Agency does not officially a6'Tee to such proposal by the official action of the Agency goveming board
during the Negotiation Period.
c. During the Negotiation Period, the Agency may at its sole discretion, elect to acquire
any private property as the Agency may deem appropriate on such terms and conditions as the Agency
may approve. Nothing herein shall be deemed to be a commitment or understanding by the Agency to
Hillwood to acquire any such portion of the Study Area as may be offered for sale or which otherwise
may become available for acquisition during the Negotiation Period and the Agency shall not be
deemed to have appropriated or made available any funds therefore.
d. Notwithstanding any other provision of this Agreement, during the Negotiation Period,
the Agency shall not be precluded from fumishing, to persons or entities unrelated to Hillwood,
information in the possession of the Agency relating to the redevelopment of any other land owned or
controlled by the Agency in close proximity to the Agency Property. The Agency may also provide
any other information in its possession that would customarily be fumished to persons requesting
information from the Agency regarding the Agency Property and other Agency public information
conceming its activities, goals and matters of a similar nature, or as required by law to be disclosed
upon request.
6. Al!ency Cooperation.
During the Negotiation Period the Agency shall:
a.
documents
Agency.
At the request of Hillwood, use its best efforts to assemble
relating to the Agency Property and the Study Area that are in
written materials and
the possession of the
b. Use its best efforts to provide appropriate comment to Hillwood with respect to one or
more conceptual development plans, as may be proposed by Hillwood for the Project, and the
redevelopment of the Study Area, including, but not limited to, conceptual plans or studies of vacation,
realignment or abandonment of public property and facilities, the installation and improvement of
public improvements and environmental evaluation of the Project.
c. Use its best efforts to provide Hillwood with limited access to the Agency Property, and
or Study Area as to any properties controlled by the Agency, if any, during the Negotiation Period, for
the purpose of conducting customary due diligence investigations thereon, including environmental
investigations of the subsurface or any structure thereon, subject to the terms and conditions of this
Agreement.
d. Use its best efforts to provide Hillwood with information or copies of studies performed
or to be performed relative to the Study Area.
7. Nel!otiation of Proiect orA.
Subject to the provisions of Section 3.h herein, it is the intent of the parties that Hillwood and
the Agency will negotiate the tenns and conditions of a proposed Project OPA contemporaneously
with the time that the studies and plans described above are being prepared and completed by
Hillwood, provided that neither party has terminated this Agreement. Notwithstanding such
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commitment of the Agency to negotiate the terms and conditions of the proposed Project OPA, nothing
contained herein commits the Agency staff to recommend approval of any final form of a Project OP A
presented for consideration by the Commission nor shall the Commission be committed to approve any
final form of a Project OP A by reason of the execution of this Agreement or by reason of any other
actions of the Agency, the Agency staff or the Commission prior to the conducting of a noticed public
hearing on the consideration of the Project OPA in the manner as required by law.
8. Consideration for this Al!reement and Reservation of Ril!hts.
In consideration for the Agency enteI;ng into this Agreement, Hillwood will undertake its
obligations under this Agreement and provide t)le Agency with copies of all studies and reports and
other information required to be generated by HiI:wood or its consultants under this Agreement. The
parties agree that, if this Agreement terminates ''or any reason, the Agency fails to extend the
Negotiation Period, or the Project OPA is not finally approved by the Agency, for any reason, neither
party shall be under any further obligation to the other regarding the disposition, acquisition, reuse,
redevelopment or development of the Agency Property and Hillwood shall have no claim upon or right
to place any lien or lis pendens upon the Agency Property under any circumstances and for any reasons
whatsoever.
9. Planninl! and Desil!n; Related Acknowledl!ments of the Parties.
Certain development standards and design controls for the Project may be established between
Hillwood and the Agency in negotiation of or in the final form of the Project OP A, but it is understood
by both parties that the Project and the redevelopment of the Agency Property must conform to City of
San Bernardino developmcnt, design and architectural standards. Tbe Agency shall fully cooperate
with Hillwood's professional consultants and contractors in providing information and assistance in
connection with Hillwood's preparation of drawings, plans and specifications. Nothing in this
Agreement shall be considered approval of any plans or specifications far ,he Project, itself, by either
the Agency or the City.
10. Hillwood Financial Disclosures.
Hillwood acknowledges that it may be requestcd to make certain confidential financial
disclosures to the Agency, its staff or legal counsel, as part of the financial due diligence investigations
of the Agency relating to the potential disposition of the Agency Property to Hillwcod. The parties
recognize that such financial disclosures may contain sensitive information relating to other business
transactions of Hillwood, that the disclosure of such information to third parties could impose
commercially unreasonable and/or anti-competitive burdens on Hillwood and, correspondingly,
diminish the value or fiscal benefit that may accrue to the Agency upon the disposition of tbe Agency
Property to Hillwood, if terms for such disposition are mutually agrced upon. Accordingly, the
Agency agrees to maintain the confidentiality of any of Hillwood's financial and/or proprietary
information that is exempt from disclosure as a Public Record pursuant to Government Code Sections
6254.15 and 6255. Hillwood shall indemnify, defend (subject to the approval of Hillwood's legal
counsel by the City Attorney), and hold harmless, including attorney's fees, the City of San Bernardino
and the Agency from any action, lawsuit, or other proceeding initiated to obtain access to documents
that may be determined to be exempt from disclosure pursuant to the applicable provisions of the
Public Records Act. The costs, salary and expenses of the City Attorney and members of his office in
representing the City and/or the Agency shall be considered as "attorney's fees" for the purposes of
this paragraph.
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] 1. Millwood Acquires No Interest in the A!!ency Property.
Hillwood hereby acknowledges that it has not acquired and will not acquire, by virtue of the
terms ofthis Agreement, any legal or equitable interest in the Agency Property.
] 2. Nondiscrimination.
Hillwood 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
undertaking its obligations under this Agreement.
13. Compliance with Law.
Hillwood acknowledges that the Project OPA, if mutually agreeable terms are established, is
likely to require Hillwood (among other things) to carry out the construction of certain improvements
in conformity with all applicable laws, including all applicable planning and zoning laws,
environmental planning and safety laws and federal and state labor and wage laws.
14. Required Approvals.
No Project OP A between the parties shall have any force or effect nor shall the Agency be
deemed to be a party to any agreement for the disposition of real or personal property to Hillwood,
until the terms and conditions of the Project OP A are considered and approved by the goveming body
of the Agency, following the conclusion ofa public hearing, as required by law.
15. Press Releases.
Hillwood agrees to discuss any press releases it may propose relating to the Agency Property
with the Agency Executive Director or his/her designee, prior to publication, to assure accuracy and
consistency of the information.
16. Notice.
All notices required hereunder shall be presented in person or by FAX and confirmed by First
Class, certified or registered United States mail with retum receipt requested. Notice shall be deemed
confirmed by United States mail effective the second business day after deposit with the United States
Postal Service. Notice by personal service shall be deemed effective upon delivery. Either party may
change their address for receipt of notice by notifying the other party in writing.
TO HILLWOOD:
Hillwood/San Bemardino, LLC
Attn.: Steve Palmer
105 North Leland Norton Way, Suite 3
San Bemardino, Califomia 92408
(909) 382-0033
TO AGENCY:
Redevelopment Agency of the City of San Bemardino
Attn.: Executive Director
201 North "E" Street, Suite 301
San Bemardino, Califomia 92401
(909) 663-1044
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17. Acceptance of A2reement by Hillwood.
Hillwood shall acknowledge its acceptance of this Agreement by delivering three (3)
counterpart executed copies of this Agreement prior to the date of consideration and approval of this
Agreement by the Agency. In the event that the Agency has approved and executed this Agreement
prior to the approval and execution by Hillwood, the delivery by Hillwood to the Agency of the
executed counterpart copies of this Agreement duly executed by Hillwood shall be completed within
ten (10) days following the approval of this Agreement by the governing board of the Agency or
thereafter this Agreement shall have no further force and effect with respect to either party. As further
set forth in Section 3.a. hereof, the Effective Date of this Agreement shall be deemed to have occurred
upon final approval and execution of this Agreement by the parties within the time period set forth
above.
18. Authority.
Each signatory to this Agreement represents and warrants that he or she has the authority to
execute this Agreement on behalf of the principal whom he or she purports to represent.
19. Optional Termination by Hillwood or bv A2ency.
a. Provided Hillwood is not in default, Hillwood may in its sole and absolute discretion
exercise an election to suspend the Project and this Agreement shall terminate and the parties shall be
mutually released from any further obligations hereunder; provided that Hillwood gives a twenty-one
(21) day written notice to the Agency.
b. Provided that Hillwood is not then in default of any performance obligation as required
by this Agreement, the Agency may not exercise an election to suspend the Project or to terminate this
Agreement other than as provided in Section 21 hereof.
20. Indemnity
Hillwood agrees, at its sole cost and expense, to indemnify, protect and hold harmless and
defend (if requested by the Agency and with counsel reasonably acceptable to the Agency) the Agency
from and against all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions,
causes of action, judgments, suites, proceedings, costs, disbursements and expenses (including, without
limitation, fees, disbursements and costs of attorneys, environmental consultants and experts), and of
all foreseeable and unforeseeable actual (excluding consequential) damages of any kind or of any
nature whatsoever (collectively, "Losses") that may, at any time, be imposed upon, incurred or
suffered by, or asserted or awarded against the Agency, directly or indirectly relating to or arising from
any of the following:
a. The presence of any "Hazardous Materials" (as such term is defined in Exhibit "e"
attached hereto) on, in, under or affecting all or any portion of the Agency Property, if such Hazardous
Materials originated on or from the Project Site as the result of Hillwood's development activities
either prior to or following the Effective Date of this Agreement and came on the Agency Property
through storn1 water draining from the Project Site;
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b. Any violation of law, rule, regulation, judgment, order, permit, license, requirement or
the like, now or hereafter, relating to or governing Hillwood's activities on the Agency Property
pursuant to this Agreement;
c. The failure of any Hazardous Materials moved by Hillwood or its contractors from the
Agency Property to be removed, transported and disposed of in compliance with all applicable
Environmental Laws;
d. The indemnity in this Section 20 expressly does not apply to any Losses: (i) arising
from existing Hazardous Materials on the Agency Property as of the Effective Date of this Agreement
(except as provided in 20.c. above regarding Hillwood's removal of any such materials), (ii) coming
onto the Agency Property from sources other than the Project or the Project Site, or (iii) resulting from
the acts or omissions of persons or entities other than Hillwood or its agents or contractors;
e. The indemnity given by Hillwood in this Section 20 will survive termination of this
Agreement;
f. All obligations of Hillwood undcr the indemnity given in this Section 20 are payable on
demand from the Agency, and any amount due and payable hereunder to the Agency by Hillwood that
is not paid within thirty (30) calendar days after written demand therefore from the Agency, with an
explanation of the amounts demanded, will bear interest from the dated of the demand until paid at the
rate of eight percent (8%) per annum; and
g. Hillwood shall pay to the Agency all costs and expenses (including, without limitation,
reasonable attorneys' fees and costs) incuITed by the Agency in connection with the indemnity given in
this Section 20 or the enforcement hereof. For the purposes of the preceding sentence, the phrase
"reasonable attorneys' fees and costs" includes the salary, wages, benefits and overhead of the City
Attorney of the City of San Bernardino.
21. Defaults and Breach - General.
Failure or delay by either party to perform any material term or provision of this Agreement
shall constitute a default under this Agreement; provided, however, that if the party who is otherwise
claimed to be in default by the other party commences to cure, correct or remedy the alleged default
within ten calendar days after receipt of written notice specifying such default and shall diligently
complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder.
The party which may claim that a default has occurred shall give written notice of default to the
party 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; provided, however, the injured party shall
have no right to exercise any remedy for a default as set forth herein without delivering the written
default notice as specified herein and until the expiration of the above-referenced cure rights.
Any failure to delay by a party in asserting any of its rights and remedies as to any default shall
not operate as a waiver of any default or of any rights or remedies associated with such a default.
In the cvent that a default of either party is not cured within the above-referenced cure period, a
"breach" shall be deemed to have occurred. In the event that a breach has occurred under this Section
2 I, the party who is not then in default may terminate this Agreement by serving the other party with a
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written notice of termination, and thereafter the Agreement shall terminate ten (10) calendar days
following the date of service of the notice of termination on the other party.
In the event of a breach, the party who is not in default shall be entitled to seek any other
appropriate remedy by initiating legal proceedings. The prevailing party in any such legal proceeding
shall be entitled to recover its reasonable attorneys fees as an element of its damages, either as part of
such legal proceedings or in a separate legal action to recover such attorneys fees. The costs, salary
and expenses of the City Attorney and members of his office in enforcing this Agreement shall be
considered as "attorney's fees".
22. Governing Law; Venue.
The parties hereto acknowledge that this Agreement has been negotiated and executed in the
City of San Bernardino, California. The parties hereto expressly agree that this Agreement shall be
governed by, interpreted under, and cunstrued and enforced in accordance with the laws of the State of
California. Further, the parties to this Agreement hereby agree that any legal actions arising from this
Agreement shall be filed in California Superior Court, in the County of San Bernardino, San
Bernardino District.
23. Partial Invalidity.
If any ternl, provision or portion of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision or portion thereof to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and
provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
24. No Intent to Create Third Party Beneficiaries.
The parties intend that the rights and obligations under this Agreement shall benefit and burden
only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or
benefit of any third party, including any governmental agency, who is not one of the parties to this
Agreement.
25. Waivers.
No waiver of any breach of any covenant or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof or of any other covenant or provision herein
contained. No extension of the time for performance of any obligation or act to be performed herein
shall not be deemed to be an extension of the time for performance of any other obligation or act to be
performed under this Agreement.
26. Entire Agreement.
This Agreement (including the Exhibits attached hereto) is the final expression of, and contains
the entire agreement between, the parties with respect to the subject matter hereof and supersedes all
prior understandings with respect thereto. This Agreement may not be modified, changed,
supplemented or terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in wliting or as othe"" ise
expressly pernlitted herein. This Agreement may be executed in one or more counterparts, each of
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which shall be an original, and all of which together shall constitute a single instrument.
26. Time of Essence.
Time is strictly of the essence with respect to each and every term, condition, obligation and
provision hereof and that failure to timely perform any of the terms, conditions, obligations or
provisions hereof by either party shall constitute a material breach of this Agreement by the party so
failing to perfOlnl, subject to the notice and cure rights set forth in Section 21 above.
27. Construction.
Headings at the beginning of each Section, paragraph and subparagraph are solely for the
convenience 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 of the parties, but
rather as if both parties had prepared the same. Unless otherwise indicated, all references to Sections
are to this Agreement. The Exhibits referred to in this Agreement are attached hereto and incorporated
herein by this reference.
28. Insurance.
Hillwood further agrees to maintain in full force during the term of this Agreement, at
Hillwood's own expense, a policy of commercial general liability insurance, which will insure
Hillwood and the Agency against liability for injury to persons, damage to property, and death of any
person occurring in or about the Agency Property. The Agency shall approve the policy as to form and
coverage, such approval not to be unreasonably withheld or delayed. The insurance shall be not less
than $1,000,000 combined single limit. Hillwood shall provide the Agency with a certificate thereof,
including an endorsement that states that thc policy will not be cancelled except after not less than ten
days' notice in writing to the Agency.
[Signature Pages Follow]
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IN WITNESS WHEREOF, Hillwood and the Redevelopment Agency of the City of
San Bemardino execute this Redevelopment Project Study and Redevelopment Assistance Agreement
on the dates indicated next to each of the signatures of their authorized representatives as appear
below.
HILLWOOD
HSB 1-2\5, L.P.,
a California limited partnership
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its authorized representative
By:
Date:
Name:
Title:
AND
SE 1-215, L.P.,
a California limited partnership
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its authorized representative
By:
Date:
Name:
Title:
AGENCY
Redevelopment Agency of the
City of San Bernardino
By:
Gary Van Osdel, Executive Director
Date:
TO FORM:
(}J~
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P IAgendaJ;\Agenda Al1achmen1~\AgrTms-Amend 2005\05-08-15 HSB 1-215, L P & SE ]-215. LPd(l(;
IN WITNESS WHEREOF, Hillwood and the Redevelopment Agency of the City of
San Bernardino execute this Redevelopment Project Study and Redevelopment Assistance Agreement
on the dates indicated next to each of the signatures of their authorized representatives as appear
below.
HILLWOOD
H5B 1-215, L.P.,
a California limited partnership
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its authorized representative
By:
Date:
Name:
Title:
AND
SE 1-215, L.P.,
a California limited partnership
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its authorized representative
By:
Date:
Name:
Title:
AGENCY
Redevelopment Agency of the
City of San Bernardino
By:
Gary Van asdel, Executive Director
Date:
15
P \Agenda5\Agenda Allachmenls\Agrmls-Amend 2005\05.08-] 5 HSB 1-21.\ L P & SE 1-215, lP doc
IN WITNESS WHEREOF, Hillwood and the Redevelopment Agency of the City of
San Bernardino execute this Redevelopment Project Study and Redevelopment Assistance Agreement
on the dates indicated next to each of the signatures of their authorized representatives as appear
below.
HILL WOOD
HSB 1-215, L.P.,
a California limited partnership
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its authorized representative
By:
Date:
Name:
Title:
AND
SE 1-215, L.P.,
a California limIted partnership
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its authorized representative
By:
Date:
Name:
Title:
AGENCY
Redevelopment Agency of the
City of San Bernardino
By:
Gary Van Osdel, Executive Director
Date:
APPROVED AS Ji'O FO
,
Ii
Agency Cou el
15
P \Agendas\Agenda Allachrnents\Agrmts-Amend 200S\05.08-15 HSB 1-215, L P & SE 1-215, LPdoc
EXHIBIT "A"
Agency Property and tbe Project Site
05~08-15 HSB 1-215, LP. & SE 1-215, LP,doc
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EXHIBIT "8"
Study Area
05-08-15 HSB ]-215, L.P. & SE 1-215, LP,doc
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EXHIBIT "e"
Definition of "Hazardous Materials"
"Hazardous Materials" shall mean any hazardous or toxic materials, pollutants, effluents,
contaminants, radioactive materials, flammable explosives, chemicals known to cause cancer or
reproductive toxicity, emissions or wastes and any other chemical, material or substance, the
handling, storage, release, transportation, or disposal of which is or becomes prohibited, limited
or regulated, is or becomes known to pose a hazard to the health and safety of the occupants of
the Property including, without limitation, (i) asbestos, (ii) petroleum and petroleum by-products,
(iii) urea formaldehyde foam insulation, (iv) polychlorinated biphenyls, (v) all substances now or
hereafter designated as "hazardous substances", "hazardous materials", or "toxic substances"
pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), 42 U.S.C. Section 9601, et seq., as amended by the Superfund Amendments
and Reauthorization Act of 1986 ("SARA"), the Federal Water Pollution Control Act, 33 U.S.c.
Section 1251 et seq., the Clean Air Act, 42 U.S.c. Section 7401 et seq., the Hazardous Materials
Transportation Act, 49 U.S.c. Section 1801 et seq., or the Resource, Conservation and Recovery
Act, 42 U.S.c. Section 6901 et seq.; (vi) all substances now or hereafter designated as
"hazardous wastes" in Section 25117 of the California Health and Safety Code; (vii) all
substances now or hereafter designated by the Governor of the State of California pursuant to the
Safe Drinking Water and Toxic Enforcement Act of 1986 as being known to cause cancer or
reproductive toxicity, or (viii) all substances now or hereafter designated "hazardous
substances", "hazardous material" or "toxic substances" under any other federal, state or local
laws or in any regulations adopted and publications promulgated pursuant to said laws.
05...08-15 HSB J-2] 5, L.P_ & SF 1-215, LP_doc
Amendment No.2
to the
2004 Professional Services Agreement
(Terra Nova Planning and Research, Inc.)
This Amendment No.2 (this "Amendment No.2") to that certain 2004 Professional Services
Agreement, dated May 3, 2004 (the "Agreement"), is by and between the Redevelopment Agency
of the City of San Bernardino, a public body, corporate and politic (the "Agency"), and Terra Nova
Planning and Research, Inc. ("Terra Nova"), and is dated as of August 15, 2005, with reference to
the following facts:
RECIT ALS
Whereas, the Agency and Terra Nova have previously entered into the Agreement as
referenced above for a tenn of twelve (12) months from May 3, 2004, as further provided in Section
3 of the Agreement; and
Whereas, Section 3 of the Agreement allows for the extension of the terms and conditions of
the Agreement if both parties mutually agree to said extension prior to the lapse of the original
twelve (12) month period; and
Whereas, on May 3, 2005, the Agency and Terra Nova executed Amendment No. I to the
Agreement thereby extending the terms and conditions of the Agreement for an additional twelve
(12) month through and ineluding May 3, 2006, with no additional monetary compensation to be
paid pursuant thereto; and
Whereas, on August 15, 2005, the Agency entered into a Redevelopment Project Study and
Redevelopment Assistance Agreement (the "Project Study Agreement") with HSBI-215, L.P., and
SE 1-2l5L.P. (collectively referred to as "Hill wood") to study the development feasibility of certain
land within the State College Redevelopment Project Area located south of University Boulev1rd
and west of the 1-215 Freeway as currently owned by Hillwood together with adjacent parcels of
land as owed by the Agency and used by the Agency as a flood control detention basin (the "Project
Site"), and said study pursuant to the Project Study Agreement will require the preparation of an
Environmental Impact Report ("EIR") for the Project Site; and
Whereas, in order to address the feasibility of the development of the Project Site in an
expedient marmer, the Agency desires to expand the services of Terra Nova to prepare the necessary
EfR to facilitate development of the Project Site subject to Hillwood reimbursing the Agency for all
expenses and fees of Terra Nova which are payable pursuant to this Amendment No. 2 in
furtherance of such study; and
Whereas, all other terms, provisions and conditions of the Agreement shall remain in full
force and effect except to the extent specifically modified by this Amendment No.2.
NOW THEREFORE, the Agency and Terra Nova agree as follows:
P 'Agendas\Agenda AlIaChmenls\Agrmls_Amend 2005\G)-OH-15 TerTa ~oval-Amendmerll No 2 doc
Section 1.
Section 2.
Section 3.
Section 4.
Recitals.
The facts and statements contained in the Recitals hereto are true and accurate in all
respects to the best knowledge of the parties as of the date hereof.
Further Extension of Term of Al!reement.
The parties intend by the approval and execution of this Amendment No.2 to extend
the term of the Agreement for twelve (12) additional months from and after the
current termination date to an extended termination date which shall be through and
including May 3,2007.
Compensation.
The not to exceed compensation under Section 4 of the Agreement is hereby
increased from $60,000 to $173,000 to accommodate the preparation of the EIR
anticipated to be undertaken for the development of the Project Site. It is understood
by and between the parties herein that this Amendment No. 2 and the
commencement of the rights and duties of the parties is subject to the approval by the
Community Development Commission of the Project Study Agreement dated August
15, 2005, by and between Hillwood and the Agency whereby Hillwood agrees to
reimburse the Agency the sum of not to exceed $113,000 to carry out the tasks
associated with this Amendment No.2, including the Scope of Services attached
hereto as Attachment A to this Amendment No.2. Should this source of funding as
contemplated pursuant to the Project Study Agreement not materialize or should
payments required to be made thereunder by Hillwood not be forthcoming as
required, then this Amendment No. 2 shall automatically terminate immediately
upon notice from the Executive Director of the Agency to Terra Nova stating such
and declaring this Amendment No.2 to be terminated.
Effective Date.
This Amendment No.2 shall take effect and be in full force and effect from and after
(i) the date of approval hereof by the governing body of the Agency and the final
execution and delivery of this Amendment No. 2 by both the Agency and Terra
Nova, and (ii) the approval of the Project Study Agreement by the governing body of
the Agency as further provided in Section 3 above.
P \Agendas"'Agenda Al1achmenls\Agnnls.Amend 2005\05-08-15 Terra Noval-Amendmelll "Jo 2 doc
2
IN WITNESS WHEREOF, the parties have executed this Amendment No.2 as of the date
first above written.
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
Date:
By:
Gary Van Osdel, Executive Director
Approved as to Legal Form
and Content:
~JI~
Agency C nsel
TERRA NOVA PLANNING
AND RESEARCH, INC.
Date:
By:
Nicole Sauviat Criste, Consulting Planner
3
P 'Agendas'Agenda AlIachmenls'.Agrmts-Amend 2005\05-08-15 Terra No,at-Amendrnenl No 2 doc
IN WITNESS WHEREOF, the parties have executed this Amendment No.2 as of the date
first above written.
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
Date:
By:
Gary Van asdel, Executive Director
Approved as to Legal Form
and Content:
Ag12~i/()J)f;;J
TERRA NOVA PLANNING
AND RESEARCH, INe.
Date:
By:
Nicole Sauviat Criste, Consulting Planner
3
P\Ag~nda5\Agend.l Al1acnmerm\Agrmls_Amend 2005\05.08_15 Ten'a NClv~l-Amendmenl No 2 doc
IN WITNESS WHEREOF, the parties have executed this Amendment No.2 as of the date
first above written.
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
Date:
By:
Gary Van Osdel, Executive Director
Approved as to Legal Form
and Content:
Q
TERRA NOVA PLANNING
AND RESEARCH, INe.
Date:
By:
Nicole Sauviat Criste, Consulting Planner
3
P 'lAgendaslAgcnda Alla<;hments\Agrmt~-Amend 2005\05.08_15 Terra Nova I-Amendmen( No 2 doc
A TT ACHMENT "A"
Scope of Services
The Consultant shall perform Study Area review services including, but not limited to the
following:
. Conduct field surveys, data collection and analysis;
. Preparation and transmittal of an Initial Study, Notice of Preparation and Notice of
Determination for the Study Area;
. Prepare Statement of Overriding Considerations;
. Conduct public scoping meeting for the Environmental Impact Report ("EIR");
. Meet with Agency, Planning staff and other City departments as needed;
. Attend Development/Environmental Review Committee, Community Development
Commission and/or Mayor and Common Council meetings as needed;
. Preparation and circulation of Draft EIR for review and comment;
. Preparation and transmittal of Final EIR to include response to comments;
. Analysis of Study Area related environmental studies and reports;
. Ensure that the preparation of all Study Area environmental studies and reports are
pursuant to the California Environmental Quality Act and City polices and procedures;
. Develop three (3) land use alternatives for the Study Area;
. Other similar duties in connection with the EIR as assigned by the Executive Director or
designee.
4
P IAgendas\Agenda Allachmenls\Agrmts-Amend 2005'.05-08-15 Terra )\'o\'al-Amendrnenl No 2 doc
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
tft~/ D (
Meeting Date (Date Adopted):,:::J Item #
Vote: Ayes Nays
Change to motion to amend original documents 0
~1?/
Resolution #
~/D~j ;)tDOS-- ~g
Abstain
Absent
Companion Resolutions
NulINoid After: days /
Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
Date Sent to Mayor: t! 1; (9 ~.
Date of Mayor's Signature: g,'l ~r ?~\ ,/'
. g/ I > oc
Date of Clerk/CDC SIgnature:, ')
Reso. Log Updated: I;i'
Seal Impressed: .0/
Reso. # on Staff Report E1
Date Memo/Letter Sent for Signature:
1 sl Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Not Returned: 0
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
yet/
By_
By_
By_
No~ By_
No ~y_
Yes
Yes
Yes
Yes
No
No /
No/
Copies Distributed to: 6
Animal Control 0 EDA Information Services 0
City Administrator 0 Facilities 0 Parks & Recreation 0
City Attorney 0 Finance 0 Police Department D
Code Compliance D Fire Department 0 Public Services D
Development Services 0 Human Resources 0 Water Department D
Others:
Notes:
(/)t;; 0-[--
Ready to File:/'''
Date:
Revised 12/18/03