HomeMy WebLinkAboutR34-Economic Development Agency
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ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Maggie Pacheco ..- SUBJECT:.
Deputy Director 0 RIG 1 NA l
DATE:
June 28, 2004
REDEVELOPMENT PROJECT STUDY
AND REDEVELOPMENT ASSISTANCE
AGREEMENT - THE REDEVELOPMENT
AGENCY AND MILL STREET
DEVELOPMENT LLC
Synopsis of Previous Commission/Counell/Committee Action(s):
On June 22, 2004, Redevelopment Committee Members Estrada and Longville reviewed this item and requested that
Staff make certain revisions to the proposed agreement and return to the Redevelopment Committee on July 6, 2004
with the necessary revisions to the agreement.
On July 6, 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 Development Commission)
MOTION:
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF niE 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 AND REDEVELOPMENT
ASSISTANCE WITH MILL STREET DEVELOPMENT LLC ("DEVELOPER") - CErrrRAL CITY
SOUTH REDEVELOPMENT PROJECT AREA'
'-t
Contact Person(s):
Maggie Pacheco
Central City South
Phone:
(909) 663-1044
3
Project Area(s)
Ward(s):
Supporting Data Attached: ~ Staff Report ~ Resolution(s) ~ Agreement(s)/Contract(s) 0 Map(s) 0 Letters
FUNDING REQUIREMENTS Amount: $
N/A
Source:
N/A
N/A
/
Budget Authority:
SIGNATURE:
Commission/Council Notes:
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P:\CDBG DepI\Maggie\Draft Docs\04-07-06 Mill Street Dev SR vet MP.doc
COMMISSION MEETING AGENDA
Meeting Date: 07/06/2004
Agenda Item Number: 1<31
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Velarde Street
Oak Court
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Mill Street
EXHIBIT "A"
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
Redevelopment Proiect Studv and Redevelopment Assistance Al!:reement -
The Redevelopment Al!:encv and Mill Street Development LLC
BACKGROUND:
On February 4, 2004, the Agency received a proposal from an agent acting on behalf of the
Arrowhead Central Credit Union ("ACCU") relative to the acquisition and development of a 7.2-acre
portion of Agency property (APN 0136-111-22) ("Stadium Parcel), in the Central City South
Redevelopment Project Area. According to the proposal, ACCU intends to form a single asset
company that will acquire and assemble the Agency property, together with Developer Owned
Properties, as well as certain privately owned adjoining properties to construct an office building.
On or about February 15, 2004, the Agency received notice from ACCU that the single asset
company had been formed and would be known as Mill Street Development LLC (the "Developer").
On February 17, 2004, the Agency Executive Director, after consultation with the City Administrator,
advised the Developer of what Project assistance City/Agency staff would be willing to recommend
for Council/Commission consideration.
On February 19, 2004, the Redevelopment Committee, meeting in closed session, reviewed the
proposal and recommended that it be moved on for full Commission consideration.
On March 15, 2004, the Commission, meeting in closed session, considered the proposal and
recommended that staff initiate negotiations with the Developer.
On May 13,2004, Lot Line Adjustment No. 04-07, was approved by the City, which separated the
subject property from the overall Stadium parcel in order to facilitate the disposition and development
of the Agency Property.
CURRENT ISSUE:
Initially, the Developer failed to appreciate the need for an agreement with the Agency to cover the
time during which negotiations would proceed. Now, due to delays in design work, certain
hindrances to land assemblage and the projected time frames for securing entitlements, the Developer
has asked that the relationship with the Agency be memorialized in an exclusive right to negotiate
agreement. Thus, staff and Agency Counsel have prepared and propose that the attached
Redevelopment Project Study and Redevelopment Assistance Agreement by and between the Agency
and the Developer (the "Agreement") by considered by the Commission. The Agreement provides
for the following:
. Agency will consider the sale of the Agency Property to the Developer upon completion of
the appropriate studies and agrees to not undertake negotiations with other parties regarding
P:\CDBG Dcpt\Maggie\Draft Docs\04.()7-06 Mill Slrccl Dev SR vcr MP.doc
COMMISSION MEETING AGENDA
Meeting Date: 07/06/2004
Agenda Item Number:
"
Economic Development Agency Staff Report
Mill Street Development LLC Agreement
Page 2
the disposition of the Agency Property (see Exhibit "A" of the Agreement) during the 180
day term of the Agreement; and
. Developer owns certain real property within the Study Area, and the Developer seeks Agency
assistance in the acquisition of other privately owned properties; collectively shown on
Exhibit A to the Agreement;
. Agency and Developer shall study the feasibility of assembling the Agency Property, and
Developer Owned Property in order for the Developer to construct not less than 60,000 square
foot and not more than 120,000 square foot two-story office building for accounting, billing
and information services functions for certain companies owned or managed by Developer,
together with on site landscaping and parking for approximately 450 vehicles, including, but
not limited to the acquisition of the Other Privately Owned Property within the Study Area as
necessary to provide adequate ingress and egress to the Agency Property ( "Project"); and
. Within 90 days from the effective date of the Agreement, the Developer will submit a site
plan for the Agency property together with Developer Owned Property, along with Other
Privately Owned Property in order to initiate the preparation of a feasibility study and initial
environmental study; the costs of the site plan and related studies will be borne by the
Developer; and
. Although the term of the Agreement is for 180 days from the effective date, the Developer
will have the right to extend the term of the Agreement for an additional 90 days upon written
notice to the Agency provided the Developer has completed the project study requirements of
Section 3. b. of the Agreement.
ENVIRONMENTAL IMPACT:
A project study agreement is exempt from the California Environmental Quality Act (CEQA).
FISCAL IMPACT:
There are no Agency direct costs associated with the Agreement other than administrative personnel
costs.
RECOMMENDATION:
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P:\CDBG Dept\Maggie\Draft Does\04-Q7-06 Mill Street Dcv SR vel'MP.doc
COMMISSION MEETING AGENDA
Meeting Date: 07/06/2004
Agenda Item Number:
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~(Q)~~ -
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERi'\IARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT
STUDY AGREEMENT AND REDEVELOPMENT ASSISTANCE WITH
MILL STREET DEVELOPMENT LLC ("DEVELOPER") - CENTRAL
CITY SOUTH REDEVELOPMENT PROJECT AREA
WHEREAS, the Agency owns certain property within the Central City South
Redevelopment Project Area" ("Project Area") as generally depicted in Exhibit "A" (the
"Agency Property"); and
WHEREAS, the Developer owns certain property ("Private Property") and third parties
own certain property ("Other Properties") as generally depicted in Exhibit "A" ("Other Private
Property"); and
WHEREAS, the Agency is prepared to consider and study the provision of certain
redevelopment assistance to Mill Street Development LLC (the "Developer") to facilitate the
assembly of the Agency Property, Private Property and Other Properties into developable
22
parcels ofland so as to foster the community economic development goals and objectives of the
City of San Bernardino (the "City") as it relates to the redevelopment plan for the Project Area
and the Agency has designated for such study purposes, the land included within the perimeters
of the tract marked by the boundary lines depicted in Exhibit "A" (the "Study Area") for such
study; and
WHEREAS, the Study Area includes both the Agency Property, Private Property and
Other Properties; and
WHEREAS, 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
23
24
prevention of the spread of blight from the Study Area; and
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WHEREAS, the Developer is qualified to assist the Agency to undertake the study of
2 specific proposals and plans for a coordinated and economically sustainable redevelopment
3
project in the Study Area, which will require specific study, evaluation, and planning by the
City and Agency, as applicable, of appropriate and feasible community redevelopment program
4
5
alternatives; and
6
WHEREAS, in accordance with the provisions of the California Environmental Quality
Act (CEQA), a redevelopment study agreement is exempt from the provisions of CEQA.
7
8
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
9
10
Section I.
The Community Development Commission hereby authorizes and
II
approves the Agreement by and between the Agency and Developer in the form as presented at
12
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
15
the Agency Counsel.
]6
Section 2.
The Resolution shall become effective immediately upon its adoption.
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013
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.025
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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 AND REDEVELOPMENT ASSISTANCE WITH
MILL STREET DEVELOPMENT LLC ("DEVELOPER") - CENTRAL
CITY SOUTH REDEVELOPMENT PROJECT AREA
3
4
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
7 Community Development Commission of the City of San Bernardino at a
meeting
8 thereof, held on the
, 2004, by the following vote to wit:
day of
9 Commission Members:
Abstain
Absent
Aves
Navs
10
ESTRADA
LONGVILLE
MCGIJ\TNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
11
12
15
16
17
Secretary
18
The foregoing resolution is hereby approved this
,2004.
day of
19
20
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
21
22
Approved a t form and Legal
7.
By:
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MllIStreet
EXHIBIT "A"
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THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE AGREEMENT
(MILL STREET DEVELOPMENT LLC:
CENTRAL CITY SOUTH REDEVELOPMENT PROJECT)
REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE
AGREEMENT, is dated as of July 19, 2004 (the "Agreement"), and is entered into by and
between MILL STREET DEVELOPMENT, LLC, (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 in Section 3.a. and provided that this
Agreement is executed in the manner and within the time limit as set forth in Section 17, the
Agency has acquired and owns certain lands as generally depicted in Exhibit "A" (the "Agency
Property" as noted thereon); and
The Agency Property is situated in an area which is referred to as the "Central City South
Redevelopment Project Area" and as of the Effective Date, the Developer and other third parties
own certain lands which are adjacent to or in proximity to the Agency Property as generally
depicted in Exhibit "A" (the "Private Property" as noted thereon as owned by either the
Developer or other third parties); and
The Agency is prepared to consider and study the provision of certain redevelopment
assistance to the Developer to facilitate the assembly of the Private Property with the Agency
Property into developable parcels of land 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
South Redevelopment Project and the Agency has designated for such study purposes, the land
included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "A"
(the "Study Area" as noted thereon) for such study; and
The Study Area includes both the Agency Property, the Private Property and other
properties adjacent thereto as illustrated on Exhibit "A"; and
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 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
P;\Agendas\Agrecmenls-Amendmenls\Agrmts-Amend 2004\04.07.19 Mill Slreel Agml.do~
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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
Following the Effective Date, the Developer may at its sole discretion, but under no
obligation to do so, acquire any or all of the Private Property in the Study Area on terms which
are economically feasible for the Developer, and which are also acceptable to all interested
persons; 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.
NOW THEREFOR, IN CONSIDERATION 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 or the
Private Property to the Developer. Any studies relating to the Study Area, the Agency Property
or the Private 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 of the 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 except pursuant to an assignment approved by the Agency Executive Director as
provided below. 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
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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 one-hundred eighty (180) 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 Developer shall have the right to extend the term of this Agreement
for an additional ninety (90) days upon written notice to the Agency delivered prior to any
termination of this Agreement; provided, however, as a condition to such extension, the
Developer shall have completed the project study as required by Section 3.b. and the economic
feasibility study as required by Section 3.h.(I); 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 the Developer set forth in Section 3; or
(4)
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 lands included in the Snidy Area, either in whole or in part, and for
undertaking the commercial development project as generally described as not less than a 60,000
square foot nor more than a 120,000 square foot two-story office building for accounting, billing
and information services functions of companies together with on-site landscaping and parking
for approximately 450 vehicles, and acquisition of other portions of the Private Property in the
Study Area as necessary to provide for adequate ingress and egress to the Agency Property (the
"Project").
3. Nel!otiation Period. Proiect Study and Proiect Studv 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 one hundred eighty (180)
days from the Effective Date unless such date shall have been first extended as authorized under
Section l.d.(2) or (3). Such time period during which this Agreement shall be in effect
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(including any extensions of time approved by the Agency) is referred to as the "Negotiation
Period".
b. Within ninety (90) 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 project 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
ninety (90) days following the Effective Date at the sole cost of the Developer. 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 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
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 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.
c. The Developer may modify the description of the Project at any time; provided
however, that substantial modifications of the Project shall:
(1) be subject to the acceptance and approval ofthe 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 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.
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e. 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 which the Agency at its
sole discretion has elected to undertake. 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.
f. 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.
g. 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 Study
Area setting forth the plan for acquisition of the Private Property and the phasing of Project
development, if any, and an estimate of development costs, including, without limitation, the
following:
(i) projections of debt and equity that can be drawn from the Project;
and,
(ii) projections of public (City, State, and federal) financial assistance
anticipated for the Project; and,
(iii) projections of overa.ll Project value and property taxes; and,
(iv) projections of the costs and benefits to the City and the Agency for
all construction, maintenance and operations of all proposed public
improvements; and,
(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
subparagraph (i) through (vi) above shall be completed by the Developer and submitted to the
Agency within one hundred twenty (120) days following the Effective Date. Thereafter the
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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.
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.
o h. 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"). ..
i. The 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 twenty
(20) 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
of the 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 twenty (20) 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. .
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4.
Oblil!ations of the Developer.
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
d. In the event that following the Effective Date the Developer may at its sole
discretion acquire any of the Private Property, the Developer shall not cause the displacement of
any residential occupant or tenant in lawful possession of any such parcel of Private Property
during the Negotiation Period without first obtaining the written consent of the Agency.
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 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, Private Property
or the redevelopment of the Project. 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 the Private Property (in whole or
in part) or development of the Project in the Study Area, and from discussing 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 proposals to the Agency as a
public agency with respect to the Agency Property provided that the Agency does not officially
accept such proposal by the official action of the Agency governing board.
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 the Developer to acquire any such Private Property as may be
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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 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 regarding the Agency Property and
other Agency public information concerning its activities, goals and matters of a similar nature,
or as required by law to be disclosed upon request.
6. Al!encv Cooperation.
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 and the Study Area 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, 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 the Developer with limited access to the Agency
Property, and or Study Area 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.
d. Use its best efforts to provide Developer with information or copies of studies
performed to be performed relative to the Study Area.
7. Nel!otiation of Proiect DDA.
It is the intent of the parties that the Developer and the Agency will negotiate the final
terms and conditions of a proposed Project DDA prior to the time that the studies and plans
described above are being prepared and completed by the Developer provided that neither party
has terminated this Agreement or the subsequent Project DDA. Such negotiations and drafting
of the final Project DDA shall commence as soon as practicable after the date that this
Agreement has been approved and accepted by the Commission. Notwithstanding such
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commitment of the Agency to negotiate the terms and conditions of the final Project DDA,
nothing contained herein commits the Agency staff to recommend approval of any final form of
a Project DDA presented for consideration by the Commission nor shall the Commission be
committed to approve any final form of a Project DDA 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 DDA in
the manner as required by law.
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 conform 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. Developer 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 Project 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 orhislher 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:
Mill Street Development LLC
1806 Orange Tree Lane, Suite C
Redlands, California 92374
Attn: Michael J. Lewin
(909) 793-0200
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 Developer.
The Developer shall acknowledge its acceptance of this Agreement by delivering three
(3) counterpart executed copies of this Agreement either prior to or subsequent 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 the Developer, the
delivery by the Developer to the Agency of the executed counterpart copies of this Agreement
duly executed by the Developer 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. 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 Developer 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 shall terminate
and the parties shall be mutually released from any further obligations hereunder; provided that
the Developer gives a twenty-one (21) day written notice to the Agency.
b. Provided that the Developer 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 20 hereof.
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20.
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 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.
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 oftermination on the other party.
21. Governinl!: Law: Venue.
The parties hereto acknowledge that this Agreement has been negotiated and executed in
San Bernardino, 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 California Superior Court, in the County of San
Bernardino, San Bernardino District.
22. Partial Invalidity.
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
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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
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 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.
25. Entire Al!reement.
This Agreement (including Exhibit "An 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
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indicated, al1 references to sections are to this Agreement. The Exhibit "A" referred to in this
Agreement is attached hereto and incorporated herein by this reference.
28. ERN Fee.
Concurrently with the execution and delivery of this Agreement by the undersigned
parties, on the Effective Date, the Developer shal1 deliver to the Agency a check in the amount
of $15,000 representing the Exclusive Right to Negotiate Fee (the "ERN Fee"). The ERN Fee is
payable to the Agency as compensation for removing the Property from consideration by other
prospective purchasers and to reimburse the Agency for the costs and expenses required for the
preparation of this Agreement and the anticipated Project DDA. The ERN Fee is the property of
the Agency on the Effective Date. In the event that a Project DDA may hereafter be approved
and executed by the parties, the Agency shall pay the sum of Fifteen Thousand Dollars
($15,000) to the escrow holder identified in the Project DDA, for the account of the Developer
(the "Developer Escrow Deposit"). The Developer Escrow Deposit shall be applied as a credit
for the payment of a portion of the purchase price for the Property as may hereafter be
negotiated by the parties under the terms of this Agreement; provided however, that if title to the
Property does not transfer to the Developer for any reason, other than for a default by the
Agency under the Project DDA, the Developer Escrow Deposit shall be released by the escrow
holder and paid to the Agency upon the cancel1ation of the escrow established under the Project
DDA.
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IN WITNESS WHEREOF, Mill Street Development LLC 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
Mill Street Development LLC
Dated:
By:
Its: Managing Member
AGENCY
Redevelopment Agency of the City of San
Bernardino
Dated:
By:
Gary Van Osdel
Executive Director
Agency Couns
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IN WITNESS WHEREOF, Mill Street Development LLC 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
Mill Street Development LLC
Dated:
By:
Its: Managing Member
AGENCY
Redevelopment Agency of the City of San
Bernardino
Dated:
By:
Gary Van Osdel
Executive Director
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IN WITNESS WHEREOF, Mill Street Development LLC 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
Mill Street Development LLC
Dated:
By:
Its: Managing Member
AGENCY
Redevelopment Agency of the City of San
Bernardino
Dated:
By:
Gary Van Osdel
Executive Director
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EXHIBIT" A"
A2encv Property. Private Property
and Studv Area
P:'Agendas\AgreemenI5.Amendmenls\Agnnts-Amend 2004\04-07-19 Mill Street Agnudoc
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Mill Street
EXHIBIT "A"
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
July 23, 2004
TO:
Margaret Parker, Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution CDC/2004-23
At the Mayor and Common Council meeting of July 19, 2004, the City of San Bernardino
adopted Resolution CDC/2004-23 - Resolution approving and authorizing the Executive
Director to execute the Redevelopment Project Study Agreement and Redevelopment Assistance
with Mill Street Development LLC - Central City South Redevelopment Project Area.
Attached is one (1) original agreement with three 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
ECONOMUC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
RECEIVF').('TL'( CLEFK
INTE~OFFlCEMEMO~UM
'04
,JUL 27 P4 :10
TO:
Michelle Taylor, Senior Secretary, City Clerk's Office
--1V\~argaret Parker, Secretary
FROM:
SUBJECT:
Executed Document
DATE:
July 27,2004
Enclosed is the fully executed Agreement pertaining to the following resolution:
CDC/2004-23 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 AND
REDEVELOPMENT ASSISTANCE WITH MILL STREET
DEVELOPMENT LLC ("DEVELOPER") - CENTRAL CITY
SOUTH REDEVELOPMENT PROJECT AREA
Please let me know if you have any questions.
Thank you,
Margaret
Enclosure
cc: Barbara Lindseth (with Original Executed Agreement)
Gary Van Osdel (with Copy of Agreement)
Maggie Pacheco (with Copy of Agreement)
Barbara Sharp (with Copy of Agreement)
r
.:
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): '")-\ ~ Item # ~3.<\ Resolution #
Vote: Ayes I-I) Nays -e-- Abstain Qr
Change to motion to amend original documents 0 Companion Resolutions
c ocJ 7.004 - 2..5
,
Absent -€r
Null/Void After: days I
Resolution # On Attachments: 0
PUBLISH 0
POST 0
Note on Resolution of attachment stored separately: 0
RECORD W/COUNTY 0 By:
Date Sent to Mayor: f\-2.-'-O~
Date of Mayor's Signature: '1- /~
Date of ClerklCDC Signature: '1-a-~ -0'1
Reso, Log Updated:
Seal Impressed:
IT
tQ--
Date MemolLetter Sent for Signature:
I" Reminder Letter Sent:
1).-L.-'3>61 Date Returned: 1)- :T7-<:>'j Not Returned: 0
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
Up~ated 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 V No
Yes No~
Yes No-L-
Yes No /
Yes No/
Copies Distributed to:
Animal Control 0 EDA Id" Information Services 0
City Administrator 0 Facilities 0 Parks & Recreation D
City Attorney 0 Finance 0 Police Department 0
Code Compliance 0 Fire Department 0 Public Services 0
Development Services 0 Human Resources 0 Water Department 0
Others: \
Notes:
Ready to File:_
Date:
Revised 12/18/03