HomeMy WebLinkAboutR31-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
SUBJECT: AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY AND ICO
INVESTMENT GROUP, INC. RELATED
TO THE SOUTHWEST CORNER OF
4TH & WATERMAN (APN 0135-191-11 &
15) (CENTRAL CITY EAST
_____________________________________________________________________~~Ev:~~Q~~!~T PROJECT AREA) __
FROM:
Maggie Pacheco
Deputy Director
DATE:
May 24, 2004
ORIG\NAL
Svnonsis of Previous CommissioofCounciVCommittee Action(s):
On May 18, 2004, Redevelopment Committee Members Estrada, Longville and McGinnis unanimously voted to
recommend that the Community Development Commission consider this action for approval.
Recommended Motion(s):
(Community Develonment Commission)
MOTION: A 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
EXECUTE THE REDEVELOPMENT PROJECT STUDY AGREEMENT FOR PROPERTY
ACQUISITION AND REDEVELOPMENT ASSISTANCE WITH ICO INVESTMENT GROUP, INC.
RELATED TO THE SOUTHWEST CORNER OF 4TH & WATERMAN (APN 0135-191-11 & 15)
________________~.!?1i!"~srIx~~ST ~.Q~Y.!'..IoQ!'_~!'~!"X~Q!E~I~~L__________________________
Contact Person(s): Gary Van Osdel Phone: (909) 663-1044
Project Area(s)
Central City East
Ward(s):
First
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letters
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CommissioofCouncil Notes:
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P;\Agendas\Comm Dev Comm~n\CDC 2004\04-06-07 Ica 4th and Waterman Agr SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 06/07/2004
Agenda Item Number: R.3 /
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
Al!reement Bv and Between the Redevelopment Al!encv and ICO Investment Group. Inc.
Related to the Southwest Corner of 4th & Waterman (APN 0135-191-11 & 15)
(Central City East Redevelopment Proiect Area)
BACKGROUND/CURRENT ISSUE:
The City is the owner of the 4.13-acre parcel at the southwest corner of Waterman and 4th Street.
The property is currently zoned Commercial General (CG-I). At the beginning of this fiscal year, the
City Administrator approached the Agency Executive Director with a request that the Agency
consider acquiring City surplus properties, including the above referenced parcel, as a means of
helping with the City's budgetary difficulties. The City Administrator was advised that the only
Agency funds available for acquiring property would be the 20% low-mod funds and thus the only
City property that could be acquired would have to be residentially zoned. In anticipation of selling
the subject property to the Agency, the City had it appraised as residential ($1.25 pst). Subsequently,
at the City Council Meeting of April 4, 2004, the Council authorized the Director of Development
Services to initiate proceedings for a General Plan Amendment to change the land use designation of
the subject property to Residential (RS).
On or about April 20, 2004 the Agency was contacted by the ICO Investment Group, Inc. (the
"Developer") regarding a desire to purchase the subject property at market value ($2.50 pst) together
with a contiguous .67 acre piece owned by the Agency (the "Properties"). At that time, the
Developer indicated an intent to use the Properties under current zoning in response to a County RFP
for the development of a 25,000 square foot County office building. Realizing the opportunity to
potentially make more money for the City, (commercial property typically has a higher value than
residential), on May 3, 2004, the Council/Commission authorized Agency staff to enter into
negotiations with the Developer for the proposed commercial use of the Properties.
Responses to the County's RFP have been received and interviews with each proponent were
conducted last week. The County anticipates making a decision before the end of June. Not knowing
if the proposal submitted by the Developer will be the one selected by the County, it would not be
prudent to propose a disposition and development agreement with the Developer for the Properties at
this time. This reality taken together with the fact that the Developer has expressed a desire to
develop the Properties even if not selected by the County, leads staff to recommend that the
Committee consider a 45-day redevelopment project study agreement. Such an agreement would
provide the Agency and the Developer sufficient time to learn of the County's decision and to
perform feasibility due diligence relative to an alternative commercial use, without committing to
sell/acquire the Properties.
ENVIRONMENTAL IMPACT:
The proposed Redevelopment Project Study Agreement for Property Acquisition and Redevelopment
Assistance is exempt from CEQA.
P:\Agendas\Conun Dev Conunission\CDC 2004\04-06-07ICO 4th and Watennan Agr SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 06/07/2004
Agenda Item Number: ~ 3/
Economic Development Agency Staff Report
Ica Investment Group, Inc. Agreement
Page 2
FISCAL IMPACT:
None.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
P:\Agendall\Conun Dev CommUlsion\CDC 2004\04-06-071CO 4th and Waterman Agr SR.doo
COMMISSION MEETING AGENDA
Meeting Date: 06/07/2004
Agenda Item Number: ..f.JL
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025
RESOLUT
A 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 EXECUTE THE REDEVELOPMENT PROJECT
STUDY AGREEMENT FOR PROPERTY ACQUISITION AND
REDEVELOPMENT ASSISTANCE WITH ICO INVESTMENT GROUP,
INC. RELATED TO THE SOUTHWEST CORNER OF 4TH &
WATERMAN (APN 0135-191-11 & 15) (CENTRAL CITY EAST
REDEVELOPMENT PROJECT AREA)
WHEREAS, the Agency is acquiring from the City of San Bernardino certain lands as
generally depicted in Exhibit "A" (the "Agency Property"); and
WHEREAS, the Agency Property is situated in an area which is referred to as the
"Central City East Redevelopment Project Area"; and
WHEREAS, the Agency is prepared to consider and study the provision of certain
redevelopment assistance to lCO Investment Group, Inc. (the "Developer") to facilitate
development of the Agency Property so as to foster the community economic development
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goals and objectives of the City of San Bernardino (the "City") as it relates to the Central City
East Redevelopment Project; and
WHEREAS, the Agency intends to initiate certain additional studies and proposals to
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address a number of issues of community concern relating to elimination and prevention of the
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spread of blight on and from the Agency Property; and
WHEREAS, the Developer is qualified to assist the Agency to undertake the study of
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specific proposals and plans for a coordinated and economically sustainable redevelopment
project on the Agency Property, which will require specific study, evaluation, and planning by
the City and Agency, as applicable, of appropriate and feasible community redevelopment
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program alternatives; and
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WHEREAS, in accordance with the provisions of the California Environmental Quality
Act (CEQA), a redevelopment study agreement is exempt from the provisions of CEQA.
NOW, TIlEREFORE, TIlE COMMUNITY DEVELOPMENT COMMISSION OF TIlE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
Section I. The Community Development Commission hereby authorizes and
approves the Agreement by and between the Agency and Developer in the form as presented at
the meeting of the Commission at which this Resolution is adopted and hereby authorizes the
Executive Director to execute the Agreement on behalf of the Agency together with such
technical and conforming changes as recommended by the Executive Director and approved by
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the Agency Counsel.
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Section 2.
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The Resolution shall become effective immediately upon its adoption.
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A 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 EXECUTE THE REDEVELOPMENT PROJECT
STUDY AGREEMENT FOR PROPERTY ACQUISITION AND
REDEVELOPMENT ASSISTANCE WITH ICO INVESTMENT GROUP,
INC. RELATED TO THE SOUTHWEST CORNER OF 4TH &
WATERMAN (APN 0135-191-11 & 15) (CENTRAL CITY EAST
REDEVELOPMENT PROJECT AREA)
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
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Community Development Commission of the City of San Bernardino at a
meeting
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thereof, held on the
day of
, 2004, by the following vote to wit:
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Commission Members:
Navs
Abstain
Absent
Aves
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ESTRADA
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LONGVILLE
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MCGINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
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Secretary
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Theforegoing resolution is hereby approved this
day of
,2004.
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Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
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By:
Approved as
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THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE AGREEMENT
(ICO INVESTMENT GROUP INC:
CENTRAL CITY EAST REDEVELOPMENT PROJECT)
REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE
AGREEMENT, is dated as of June 7, 2004 (the "Agreement") and is entered into by and
between ICO INVESTMENT GROUP, INC., a California Corporation, (the "Developer") 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
As of the "Effective Date", as this term is defined below, the Agency has acquired and
owns certain lands as generally depicted in Exhibit "A" (the "Agency Property"); and
The Agency Property is situated in an area which is referred to as the "Central City East
Redevelopment Project Area"; and
The Agency is prepared to consider and study the provision of certain redevelopment
assistance to the Developer to facilitate development of the Agency Property so as to foster the
community economic development goals and objectives of the City of San Bernardino (the
"City") as related to the Central City East Redevelopment Project; and
The Agency intends to initiate certain additional studies and proposals to address a
number of issues of community concern relating to elimination and prevention of the spread of
blight from the Agency Property; and
The Developer 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, which will require specific study, evaluation, and planning by the City and
Agency, as applicable, of appropriate and feasible community redevelopment program
alternatives; and
The Developer and the Agency believe it is appropriate for the Agency, in consultation
with the Developer to undertake certain redevelopment studies and to incur certain costs, in
consultation with the Developer 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.
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NOW THEREFOR, IN CONSIDERA nON OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY
AGREE, AS FOLLOWS:
1. Developer Acknowledl!ements and Term of Al!reement.
a. The Developer 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 the Developer to convey any interest in the Agency Property to the
Developer. Any studies relating to the Agency Property and the Project (as defined below) that
may hereafter be undertaken by the Developer, in its sole discretion shall be the sole
responsibility of the Developer and shall not be deemed to be undertaken for the benefit of the
Agency and the City.
b. The qualifications and identity ofthe Developer and its principals are of particular
concern to the Agency. The Agency relied on these qualifications and identity in entering into
this Agreement with the Developer. During the term of this Agreement, no voluntary or
involuntary successor-in-interest of the Developer shall acquire any right or power under this
Agreement. The Developer shall not assign all or any part of this Agreement, or any rights
hereunder, 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. The Developer shall promptly notify the Agency in writing of any and all changes
whatsoever in the identity of the business entities and individuals either comprising or in control
of the Developer, as well as any and all changes in the interest or the degree of control of the
Developer by any such party, of which information the Developer or any of its partners or
officers have been notified or may otherwise have knowledge or information. Upon the
occurrence of any significant or material change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer (other than such changes
occasioned by the death or incapacity of any individual) that has not been approved in writing by
the 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 the
Developer.
. d. This Agreement shall automatically terminate, without further notice or action,
and be of no further force or effect forty-five (45) days following the Effective Date, unless prior
to that time:
(I) the parties execute the Project DDA, as described below, which will
include, without limitation, other relevant community redevelopment covenants acceptable to the
Agency and such other terms and conditions mutually acceptable to the parties, in which case
this Agreement shall terminate on the effective date of the Project DDA; or,
(2) 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 in its sole discretion that satisfactory
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progress is being made to complete the activities to be performed by the Developer set forth in
Section 3; or
(3)
20, as applicable.
a party terminates this Agreement as provided under Section 19 or Section
2. The Proiect.
Subject to the terms and conditions of this Agreement, the Developer shall take all
reasonable actions required or necessary for determining the feasibility of the acquisition and
redevelopment of the Agency Property and for undertaking the commercial-retail development
project as generally set forth in the conceptual proposal attached as Exhibit "B" (the "Project").
3. Nel!otiation Period. Proiect Stud v 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 being the "Effective
Date"). This Agreement will continue in effect until a date which is forty-five (45) days from the
Effective Date unless such date shall have been first extended as authorized under Section
l.d.(2). Such time period during which this Agreement shall be in effect (including any
extensions of time approved by the Agency) is referred to as the "Negotiation Period".
b. Within five (5) days following the Effective Date, the Developer shall submit a
site plan for the Agency Property to the Agency, and the Agency and the Developer shall initiate
the preparation of a feasibility study for the redevelopment of the Agency Property proposed by
the Developer (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
the Developer.
On a best efforts basis, the Agency and Developer shall 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 ("CEQA") to be completed for the Project
within thirty (30) days following the Effective Date. The Initial Study may be prepared by either
the Agency or the City as the "lead agency" as this term is defined in CEQA. Thereafter,
provided the Developer has completed the studies described in Section 3 .h.( I) and (2) in
sufficient detail to be mutually acceptable to the Developer and the Agency, the Agency and
Developer shall on a best efforts basis, cause a draft environmental impact document for the
Project to be circulated for public comment and review within five (5) 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
forty-five (45) days following the Effective Date.
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c. The Developer 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 which approval
shall not be unreasonably withheld, conditioned or delayed;
(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 the Developer consider modifications to the
description of the Project from time-to-time. Each such modification shall be subject to the
reasonable approval of the Developer.
d. The Agency shall on a best efforts basis during the course of the Project Study
consider the specific terms and conditions of redevelopment assistance which the Developer may
propose to include in the Project DDA; provided however the Agency reserves the sole and
absolute discretion to accept, reject or modify any such proposed term or condition to the Project
DDA in its sole discretion.
e. Notwithstanding any other provision of this Agreement to the contrary and
provided the Agency is not in default, the Agency reserves the sole and absolute discretion to
suspend the Project Study and terminate this Agreement at any time, in its sole and absolute
discretion subject to the terms of Section 19 .b.
f. During the course of the Project Study, the Agency shall pay for any "Project
Study Costs" and expenses of third party consultants who are engaged by the Agency under
written contract to undertake one or more elements of the Project Study. Project Study Costs do
not include third party costs incurred by the Developer 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 the
like. Each party shall bear its own legal fees and costs in connection with the Project Study.
g. All third-party consultants retained by the Agency to prepare any study or
document as part of the Project Study 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.
h. Subject to the terms and conditions of this Agreement, the Developer 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 the Developer in consultation with the Agency of a
preliminary financial feasibility study/analysis for the development of the Project on the Agency
Property setting forth the phasing of Project development, if any, and an estimate of development
costs, project income, and a proforma statement of Project capital return including, without
limitation, the following:
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(ii)
(iii)
(iv)
(v)
(vi)
projections of Project income and operating expenses; and,
projections of debt and equity that can be drawn from the Project;
and,
projections of Project cash flow; and,
projections of public (City, State, and federal) financial assistance
anticipated for the Project; and,
projections of overall Project value, revenue, sales and property
taxes; and,
projections of the costs and benefits to the City and the Agency for
all construction, maintenance and operations of all proposed public
improvements; and,
(vii) projections of the costs of additional or increased levels of public
services; and,
(viii) projections of any new public revenues anticipated to be generated
by the project, by phase, if applicable, and upon completion of the
Project.
c
An initial draft of a document including the study elements identified in
subparagraph (i) through (viii) above shall be completed by the Developer and submitted to the
Agency within fifteen (15) days following the Effective Date. Thereafter the parties shall refine
the draft document as submitted by the Developer 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,
the Developer 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; and
(iii) proposed financing plan identifying the timing of receipt by the
Developer and the Agency, as applicable, of the financing sources
for all private and public improvements proposed in the Project, by
phase, if applicable; and
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(iv) a list of potential users or tenants and anticipated lease rates.
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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.
i. The Developer shall inform the Agency in wntmg whether based on the
information set forth in Section 3.h., the Developer 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, the Developer
and the Agency may proceed to negotiate the final form of an agreement for in which the
specific terms for the redevelopment of the Property may be set forth on terms mutually
acceptable to the parties (the "Project DDA").
j. Tbe Developer 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 five
(5) calendar days of 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 the Developer in writing
ofthe reason(s) that the information is unsatisfactory. If the Agency Executive Director does not
make a determination regarding any item of information submitted by the Developer under this
Section 3, within five (5) calendar days of receipt of such information, the information shall be
deemed submitted in acceptable form by the Agency. The determinations to be made by the
Agency Executive Director under this subsection 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 DDA.
4. Oblieations of the Develoner.
During the Negotiation Period, the Developer 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 DDA and, if acceptable to the Developer, submit an executed copy of the
final form of the Project DDA 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 the Developer in completing its obligations under this Agreement; and
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5. Al!encv 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 the Developer appears to be well
qualified to undertake the task of planning the details for the acquisition and development of all
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 or the redevelopment of the Agency Property.
The term "negotiate", as used herein, shall be deemed to preclude the Agency from accepting
any other offer or proposal from a third party to either acquire from the Agency any interest in
the Agency Property or to develop the Agency Property, and from discussing other
redevelopment proposals for the Agency Property with third persons or entities.
c. Notwithstanding any other provision of this Agreement, during the Negotiation
Period, the Agency shall not be precluded from furnishing, to persons or entities unrelated to the
Developer, 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
furnished to persons requesting information from the Agency concerning its activities, goals and
matters of a similar nature, or as required by law to be disclosed upon request.
6.
Al!encv Cooperation.
c
During the Negotiation Period the Agency shall:
a. At the request of Developer, use its best efforts to assemble written materials and
documents relating to the Agency Property that are in the possession of the Agency.
b. Use its best efforts to provide appropriate comment to the Developer with respect
to one or more conceptual development plans, as may be proposed by the Developer for the
Project, 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 the Developer with limited access to the Agency
Property, 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 a separate environmental investigation and
inspection license agreement to be agreed upon by the Agency and the Developer, at some later
date, if applicable.
7. Nel!otiation of Property DDA.
During the Negotiation Period, the Agency and the Developer shall negotiate diligently
o and in good faith to prepare the Project DDA. Both of the parties shaH exercise best efforts to
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complete discussions relating to the final terms and conditions of the Project DDA and such
other matters, as may be mutually acceptable to the parties for the redevelopment of the Project
on the Property, prior to the expiration of the Negotiation Period.
8. Consideration for this Al!reement and Reservation of Ril!hts.
In consideration for the Agency entering into this Agreement, the Developer will
undertake its obligations under this Agreement and provide the Agency with copies of all studies
and reports and other information generated by the Developer or its consultants regarding the
Project. The parties agree that, if this Agreement terminates for any reason, the Agency fails to
extend the Negotiation Period, or the Project DDA 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.
9.. Planninl! and Desil!n: Related Acknowledl!ments ofthe Parties.
Certain development standards and design controls for the Project may be established
between the Developer and the Agency in negotiation of or in the final form of the Project DDA,
but it is understood by both parties that the Project and the redevelopment of the Agency
Property must confornl to City of San Bernardino development, design and architectural
standards. The Agency shall fully cooperate with the Developer's professional associates in
providing information and assistance in connection with the Developer's preparation of
drawings, plans and specifications. Nothing in this Agreement shall be considered approval of
any plans or specifications for the Project, itself, by either the Agency or the City.
10. Develoner Financial Disclosures.
The Developer acknowledges that it may be requested 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 the Developer. The parties recognize that such financial disclosures may contain
sensitive information relating to other business transactions of the Developer, that the disclosure
of such information to third parties could impose commercially unreasonable and/or anti-
competitive burdens on the Developer and, correspondingly, diminish the value or fiscal benefit
that may accrue to the Agency upon the disposition of the Agency Property to the Developer, if
terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to
maintain the confidentiality of any business records described in Government Code Section
6254.15, as may be provided by the Developer to the Agency or its consultants, to the maximum
extent permitted by law. The Agency shall not provide a copy of any business record protected
from disclosure under Government Code Section 6254.15 to a third party, unless the Developer
first consents to such disclosure in writing or, unless a court of competent jurisdiction compels
disclosure.
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II. Developer Acquires No Interest in the Al!encv Property.
The Developer hereby acknowledges that it has not acquired and will not acquire, by
virtue of the terms of this Agreement, any legal or equitable interest in the Agency Property.
12. Nondiscrimination.
The Developer shall not discriminate against nor segregate any person, or group of
persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or
ancestry in undertaking its obligations under this Agreement.
13. Compliance with Law.
The Developer acknowledges that the Property DDA, if mutually agreeable terms are
established, is likely to require the Developer (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 DDA 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 the
Developer, until the terms and conditions of the Project DDA are considered and approved by
the governing body of the Agency, following the conclusion of a public hearing, as required by
law.
15. Press Releases.
The Developer 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 return 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.
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TO DEVELOPER:
ICO Investment Group, Inc.
4221 Wilshire Boulevard, Suite 240
Los Angeles, California 900 I 0
Attn: Jian Torkan, Director of Business Development
TO AGENCY:
Redevelopment Agency of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attn: Executive Director
(909) 663-1044
17. Acceptance of Al!reement bv the Develouer.
The Developer shaH acknowledge its acceptance of this Agreement by delivering three
(3) counterpart executed copies of this Agreement signed by at least two (2) authorized officers
of the Developer. The delivery by the Developer to the Agency of the executed counterpart
copies of this Agreement shaH be completed within ten (10) days foHowing the approval of this
Agreement by the governing board of the Agency or thereafter this Agreement shaH have no
further force and effect with respect to either party.
18. Authoritv.
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 bv Develouer or bv Al!encv.
a. Provided the Developer is not in default, the Developer may in its sole and
absolute discretion exercise an election to suspend the Project and this Agreement shaH terminate
and the parties shaH be mutuaHy released from any further obligations hereunder; provided that
the Developer gives a twenty-one (21) day written notice to the Agency.
b. Provided the Agency is not in default, the Agency may in its sole and absolute
discretion exercise an election to suspend the Project, and this Agreement shaH terminate and the
parties shaH be mutuaHy released from any further obligation hereunder twenty-one (21) days
foHowing written notice to the Developer.
20. Defaults and Breach - General.
Failure or delay by either party to perform any material term or provIsIon of this
Agreement shaH 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 five (5) 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.
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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.
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 event that a default of either party may remain uncured for more than five (5)
calendar days following written notice, as provided above, a "breach" shall be deemed to have
occurred. 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."
In the event that a breach has occurred under this Section 20, the party who is not then in
default may terminate this Agreement by serving the other party with a written notice of
termination, and thereafter the Agreement shall terminate ten (10) days following the date of
service of the notice of termination on the other party.
21. Governinl! Law: Venue.
The parties hereto acknowledge that this Agreement has been negotiated and entered into
in California. The parties hereto expressly agree that this Agreement shall be governed by,
interpreted under, and construed 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 Superior Court, for the County of San Bernardino, San
Bernardino District.
22. Partial Invaliditv.
If any term, 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.
23. 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
11
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for the use or. benefit of any third party, including any governmental agency, who is not one of
the parties to this Agreement.
24. Waivers.
No waiver of any breach of 3I1Y 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.
25. Entire Aneement.
This Agreement (including Exhibits "A" and "B" 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
writing or as otherwise expressly permitted herein. This Agreement may be executed in one or
more counterparts, each of 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 and a non-curable (but
waivable) default under this Agreement by the party so failing to perform.
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. All exhibits referred to in this
Agreement are attached hereto and incorporated herein by this reference.
12
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IN WITNESS WHEREOF, ICO Investment Group, Inc. 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.
DEVELOPER
ICO Investment Group, Inc.
Dated:
By:
Dated:
By:
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Gary Van Osdel
Executive Director
A
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IN WITNESS WHEREOF, ICO Investment Group, Inc. 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.
DEVELOPER
lCO Investment Group, Inc.
Dated:
By:
Dated:
By:
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Gary Van Osdel
Executive Director
Ag
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IN WITNESS WHEREOF, ICO Investment Group, Inc. 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.
DEVELOPER
ICO Investment Group, Inc.
Dated:
By:
Dated:
By:
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Gary Van Osdel
Executive Director
Ag
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EXHIBIT "A"
Agencv PropertY
4.8 acres located at the southwest comer of 4th Street and Waterman Avenue in the City of San
Bernardino.
Assessor Parcel Number 0135-191-11 - Parcel Map 7140 Parcel No 1 - 4.13 acres
Assessor Parcel Number 013 5-191-15 - Parcel Map 7140 Parcel No 9 - .67 acres
P:\Agendas\As,,"rnents-AmcndmcnlSv.,rmts-Aml:nd 2004\04-06-01.TorUn Project Sludy Agreemenl.OOC
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EXHIBIT "B"
Description of Proiect
Development of a County facility consisting of a 25,000 square foot, single story office building
with 290 parking spaces and requisite landscaping to house the Department of Children Services.
P:\Ag~.AmendmcnlI\ApmtI.Amcnd 2004\04.()6.01 Torbn Propl Study~.DOC
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
June 11,2004
TO:
Margaret Parker, Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution CDC/2004-14
At the Mayor and Common Council meeting of June 7, 2004, the City of San Bernardino
adopted Resolution CDC/2004-14 - Resolution approving and authorizing the Executive
Director to execute the Redevelopment Project Study Agreement for property acquisition and
redevelopment assistance with ICa Investment Group, Inc., related to the southwest corner of
4th & Waterman (APN 0135-191-11 & 15) (Central City East Redevelopment Project Area).
Attached is one (1) original agreement with three (3) signature pages. Please obtain signatures in
the appropriate location and return one original agreement to the City Clerk's Office as soon as
possible, to my attention.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
I hereby acknowledge receipt of the above mentioned documents.
"go'" ~~
.".-1. Please sign and return
Date: a '(~ 'tJr
'.
ECONOMITCDEVELOPMENTAGENCY
OF THE CITY OF SAN BERNARDIMEIVEJ--CIH CLEFt<
INTER-OFFICE MEMORANDDM04 JlJL 20 P 3 :04
TO: Michelle Taylor, Senior Secretary, City Clerk's Office
FROM: '-/!7fMargaret Parker, Secretary
SUBJECT: Executed Document
DATE: July 19, 2004
Enclosed is the fully executed Agreement pertaining to the following resolution:
CDC/2004-14 A 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 EXECUTE THE
REDEVELOPMENT PROJECT STUDY AGREEMENT FOR
PROPERTY ACQUISITION AND REDEVELOPMENT
ASSISTANCE WITH ICO INVESTMENT GROUP, INC. RELATED
TO THE SOUTHWEST CORNER OF 4TH & WATERMAN (APN
0135-191-11 & 15) (CENTRAL CITY EAST REDEVELOPMENT
PROJECT AREA)
Please let me know if you have any questions,
Thank you,
Margaret
Enclosure
cc: Barbara Lindseth (with Original Executed Agreement)
Barbara Sharp (with Copy of Agreement)
Gary Van Osdel (with Copy of Agreement)
, .,1
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): eo -')- f)'-L Item # lZ.3\ Resolution #
Vote: Ayes '\-'") Nays &- Abstain..er-
Change to motion to amend original documents D Companion Resolutions
COG) -zo:::A- 14
Absent ....Q-
NullN oid After: - days /
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
PUBLISH D
POST D
RECORD W/COUNTY D
By:
Date Sent to Mayor:
c" -<1-04
lO-'l-oq
~4-o't
Reso. Log Updated:
Seal Impressed:
g/
~
Date of Mayor's Signature:
Date of ClerklCDC Signature:
Date Memo/Letter Sent for Signature:
1st Reminder Letter Sent:
6-1~
Date Returned: '1- dO -0tj Not Returned: D
2nd Reminder Letter Sent:
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):
Yes r/'
Yes
Yes
Yes
Yes
No By
No -L- By
No ---".L By
No ----4 By
No --L By
Copies Distributed to:
Animal Control D EDA ~ Information Services D
City Administrator D Facilities D Parks & Recreation D
City Attorney D Finance D Police Department D
Code Compliance D Fire Department D Public Services D
Development Services D Human Resources D Water Department D
Others: (
Notes:
Ready to File: _
Date:
Revised 12/18/03