HomeMy WebLinkAboutCDC/1999-07
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RESOLUTION NO. CDc/1999-7
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN AGREEMENT FOR THE
EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY
ACQUISITION AND DEVELOPMENT ASSISTANCE BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND CENTURY CROWELL
COMMUNITIES, LP
9 of San Bernardino (the "Commission") is the governing body of the
WHEREAS, the Community Development Commission of the City
10 Redevelopment Agency of the City of San Bernardino (the "Agency"),
11 a public body of the State of California, organized and existing
12 pursuant to the Community Redevelopment Law (Health and Safety Code
13 Section 33000, et ~.); and
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16 Exclusive Right to Negotiate for Property Acquisition and
WHEREAS, the Agency desires to enter into that certain
17 Redevelopment Assistance (the "Agreement") with Century Crowell
18 Communities, LP, a California limited partnership (the "Developer")
19 for the coordination of mutual planning and consideration of the
20 acquisition, reuse and redevelopment of certain real property
21 presently under the control of the Agency, as more fully described
22 therein (the "Site"); and
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WHEREAS, the Site is situated in the redevelopment
25 proj ect area of the Northwest Redevelopment proj ect Area and
26 consists of an assembly of lands including approximately fourteen
27 and sixty eight hundredths (14.68) acres; and
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WHEREAS, the Developer and the Agency believe that
consideration of the final logistical details of the disposition of
the Site by the Agency to the Developer is necessary and
appropriate at this time.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1.
attached hereto as
The Agreement with the Developer in the form
Exhibi t "An and incorporated herein by this
reference is hereby approved.
Section 2. The Executive Director of the Agency is
hereby authorized to execute the Agreement on behalf of the Agency
in substantially the form attached hereto, together with such
changes therein as may be approved by Agency Special Counsel. The
Executive Director or such other designated representative of the
Agency is further authorized to do any and all things and take any
and all actions as may be deemed necessary or advisable to
effectuate the purposes of the Agreement.
III
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CDc/1999-7
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING A CERTAIN AGREEMENT FOR THE EXCLUSIVE
2 RIGHT TO NEGOTIATE FOR PROPERTY ACQUISITION AND DEVELOPMENT
ASSISTANCE BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
3 SAN BERNARDINO AND CENTURY CROWELL COMMUNITIES, LP
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6 date of its adoption.
Section 3. This Resolution shall take effect upon the
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8 I HEREBY CERTIFY that the foregoing Resolution was duly
9 adopted by the Community Development Commission of the City of
10 San Bernardino at a
;oint re9;Ular
15th day of February, 1999, by the following vote, to wit:
~;~~"uti n is r;bY approved this \J+ro
Judi th/;p1fl~;~-{;airperson
Commu~ity Development Commission
of thE( Ci ty of San Bernardino
11 the
12 Commission Members:
AYES
meeting thereof, held on
NAYS
ABSTAIN
ABSENT
13 ESTRADA
LIEN
14 McGINNIS
SCHNETZ
15 DEVLIN
ANDERSON
16 MILLER
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day of
The foregoing
February
23 content:
24 By:
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CDC/99-7
EXCLUSIVE RIGHT TO NEGOTIATE
FOR PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE
BETWEEN CENTURY CROWELL COMMUNITIES, LP AND
THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
THIS EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY
ACQUISITION AND REDEVELOPMENT ASSISTANCE, is dated as of February
/5, 1999 (the "Agreement") and entered into by and between Century
Crowell Communi ties, LP, a California limited partnership (the
"Developer") and the Redevelopment Agency of the City of San
Bernardino (the "Agency") with respect to the coordination of
mutual planning and consideration of the acquisition, reuse and
redevelopment of certain real property presently under the control
of the Agency (the "Site"), as more fully described below, upon the
following terms and conditions:
-- RECITALS
The Site is situated in the redevelopment project area of
the Northwest Redevelopment Project Area and consists of an
assembly of lands including approximately fourteen and sixty eight
hundredths (14.68) acres, more or less.
The Developer and the Agency believe that consideration
of the final logistical details of the disposition of the Site by
the Agency to the Developer on the terms outlined in the Agency
Staff memorandum dated January 28, 1999 (the "Agency Staff
Memorandum") is necessary and appropriate.
A plot plan showing the general location of the Site in
relation to surrounding lands, together with a legal description of
the Site is attached hereto as Exhibit "A."
THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE
AGENCY RELATING TO THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN FOR
THE NORTHWEST REDEVELOPMENT PROJECT AND THE COVENANTS AND PROMISES
OF THE PARTIES RELATING TO THE SITE AS SET FORTH HEREIN THE
DEVELOPER AND THE AGENCY AGREE AS FOLLOWS:
1. Developer Receipt of Agency Staff Memorandum. The
Developer hereby acknowledges its receipt from the Agency Executive
Director of the Agency Staff Memorandum, which relate to the
general economic terms on which the Developer may hereafter acquire
the Site from the Agency. The Developer further acknowledges and
agrees that no provision of the Agency Staff Memorandum shall be
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deemed to be an offer by the Agency to convey any interest in the
Site to the Developer. Each of the various studies relating to the
Site which may be undertaken by the Developer in its discretion
with respect to any matter relating to the Agency Staff Memorandum
shall be the sole responsibility of the Developer and no such study
shall be deemed to have been undertaken for the benefit of the
Agency.
2. Term of Agreement. The rights and duties of the
parties established by this Agreement shall commence within seven
(7) calendar days following the date of approval of the Agreement
by the Agency upon the acceptance of this Agreement by the
Developer as provided in Paragraph 22, and thereafter this
Agreement shall terminate and be of no further force or effect one
hundred and eighty (180) days after such date, unless prior to that
time:
(i) the parties execute a separate disposition and
development agreement (the "Site DDA") for a specific
program of disposition, reuse and redevelopment of the
Site to be undertaken by the Developer in accordance
wi th the terms of the Agency Staff Memorandum, the
other relevant affordable housing development community
redevelopment covenants acceptable to the Agency and
such other terms and conditions acceptable to the
parties; or
(ii) the parties each agree to further extend the term of
this Agreement to a specific date, subject to the
Agency first making a finding that satisfactory
progress is being made to complete the logistical
details of the acquisition of the Site on terms which
are acceptable to the Agency in its sole and absolute
discretion.
The initial term of this Agreement (and all extensions
of time approved by the Agency) is referred to in this Agreement as
the "Negotiation Period."
3. Exclusive Riaht to Neaotiate Charge Payable by the
Developer to the Agency.
a. By a date no later than 4:30 p.m. on the seventh
(7th) calendar day following the date of approval of this
Agreement by the Agency, the Developer shall deliver to the Agency
the sum of Ten Thousand Dollars ($10,000) (the "Exclusive Right to
Negotiate Charge") which sum shall upon receipt be the property of
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the Agency. The Agency shall use and apply the Exclusive
Negotiate Charge as provided under either Paragraph
Paragraph 3(c), below.
Right to
3(b) or
b. Provided that the draft Site DDA which has been
executed by the Developer and submitted to the Agency Executive
Director prior to the expiration of the Negotiation Period, and
thereafter the Site DDA is accepted and approved by a resolution
duly adopted by the Agency, in its sole and absolute discretion,
the Exclusive Right to Negotiate Charge shall be applied as a
credit purchase price payable by the Developer to the Agency for
the acquisition of the Site.
c. Provided that the Developer has negotiated
diligently and in good faith to carry out its obligations
hereunder, and thereafter the Agency may fail to approve the final
form of the Site DDA before the end of the Negotiation Period, then
in such an event, the Exclusive Right to Negotiate Charge shall be
returned by the Agency to Developer promptly following written
request from the Developer.
d. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO DETERMINE PRIOR TO THE EXECUTION OF THIS
AGREEMENT THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY THE AGENCY
IF THE DEVELOPER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT AFTER THE DATE OF ACCEPTANCE BY THE DEVELOPER.
THEREFORE, EXCEPT AS PROVIDED IN PARAGRAPH 3(c), UPON THE DATE OF
ACCEPTANCE OF THIS AGREEMENT BY THE DEVELOPER, THE AGENCY SHALL BE
ENTITLED TO THE REMEDY OF LIQUIDATED DAMAGES IN THE AMOUNT OF TEN
THOUSAND DOLLARS ($10,000) AND UPON PAYMENT OF SUCH SUM TO THE
AGENCY, THE DEVELOPER SHALL BE RELEASED FROM ANY FURTHER LIABILITY
TO THE AGENCY EXCEPT AS TO THE INDEMNITY COVENANTS OF THE DEVELOPER
IN FAVOR OF THE AGENCY AS MAY ARISE UNDER PARAGRAPH 1 (b) OF THIS
AGREEMENT. /
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Developer
of Agency
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4. The proj ect. The Developer hereby agrees to take
all reasonable actions required or necessary for determining the
feasibili ty of the reuse and redevelopment of the Site for the
development of affordable single family housing (the "projectU) at
its sole cost and expense. A conceptual description of the Project
is set forth in the Agency Staff Memorandum. It is the
responsibility of the Developer during the Negotiation Period to
present further refinement of this general description of the
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Project to the Agency for its review and consideration. In this
respect the parties each acknowledge that the task of further
refinement of the general description of the Proj ect is in the
nature of an iterative process which involves a number of different
factors. The parties further acknowledge that the completion of
this iterative process as it relates to the Site and the Project
may require that the parties consider various alternate structures
for the payment of the purchase price to the Agency for the Site in
order to promote the affordable single family housing budget goals
for the Project on terms which are economically feasible and
mutually satisfactory to the parties.
5. Obligations of the Developer. During the
Negotiation Period, the Developer shall proceed diligently and in
good faith to:
a. Review, comment on and submit to the Agency
Executive Director an executed copy of the draft Site DDA by a date
no later than one hundred eighty (180) days after the approval of
this Agreement by the Agency (or such later date which corresponds
wi th an authorized extension of the Negotiation Period under
Paragraph 2(ii)), which incorporates the relevant provisions of the
Agency Staff Memorandum and such other terms and conditions
acceptable to the Developer and the Agency staff (in the sole and
absolute discretion of the parties, and which is subject to no
conditions or contingencies on the part of the Developer except
final approval by the governing board of the Agency and the
completion of the customary due diligence investigations and the
delivery of a policy of title insurance by the Agency in favor of
the Developer with respect to the Site;
b. Prepare and complete
marketing plans and feasibility studies
its discretion, believe are indicated;
reuse and redevelopment
as the Developer may, in
c. Keep the Agency advised as to the progress of the
matters noted above on a regular basis.
6. Agency Not To Negotiate With Others. The Agency
acknowledges that it deems the disposition and reuse and
redevelopment of the Site to be necessary and that the Developer
appears to be well qualified to undertake the task of finalizing
the logistical details relating to the acquisition, reuse and
redevelopment of the Site in a manner which is compatible with the
redevelopment objectives of the Redevelopment Plan.
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During the Negotiation Period, the Agency shall not
negotiate with any other person or entity for the purpose of
considering either the disposition of the Site or considering the
reuse and redevelopment of the proj ect on the Site. The term
"negotiate" as used herein shall be deemed to preclude the Agency
from accepting any other proposal from third parties to either
acquire any interest in the Site (in whole or in part) or from
accepting any other development proposal affecting the Site from
persons or entities other than the Developer, and from discussing
other reuse and redevelopment plans for the Site with third persons
or entities; provided however, any person may submit and the Agency
may consider any proposal for the disposition and/or redevelopment
of any lands adjacent to the Site.
During the Negotiation Period, the Agency shall not be
precluded, however, from furnishing to other persons or entities
unrelated to the Developer information in the possession of the
Agency relating to the Redevelopment Plan for the Northwest
Redevelopment Project, and the implementation of the Redevelopment
Plan, shall remain within the sole and exclusive purview of the
Agency to administer. The Agency may also provide any other
information in its possession which would customarily be furnished
to persons requesting information from the Agency concerning its
activities, goals, and matters of a similar nature.
7. Agency Cooperation. During the Negotiation Period
the Agency shall use its best efforts to:
a. Assemble at the request of the Developer written
materials and documents relating to the Site which are in the
possession or reasonably available to the Agency and provide
appropriate comment to the Developer with respect to one or more
conceptual development plans as may be proposed by the Developer
for the Proj ect and the reuse and redevelopment of the Site,
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 the completion of all required environmental evaluation of the
proj ect.
b. Provide the Developer with limited access to the
Site 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 customary terms and conditions of an
environmental investigation and inspection license agreement which
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protect the interests of the Agency in a form approved by the
Executive Director.
8. Negotiation of Site DDA. During the Negotiation
Period the Agency and Developer shall negotiate diligently and in
good faith to prepare and enter into the Site DDA and each of the
parties shall exert best efforts to complete discussions relating
to the final logistical terms and conditions of a draft Site DDA
and such other matters as may be mutually acceptable to the parties
for the reuse and redevelopment of the Site and the Project.
9. Consideration for Aareement and Reservation of
Rights. In consideration for the Agency's entering into this
Agreement, the Developer will, on a best efforts and good faith
basis, undertake its obligations pursuant to this Agreement. The
parties agree that in the event this Agreement may terminate or
that the Agency may fail to extend the Negotiation Period or in the
event that a Site DDA may not be finally approved by the Agency for
any reason, neither party shall be under any further obligation to
the other, except as may arise under Paragraph 7(b).
10. Planning and Design - Related Acknowledgments
of the Parties. Development standards and design controls for the
Project shall be established between the Developer and the Agency,
and it is understood that the Project and the reuse of the Site
shall conform Agency development and architectural standards and to
the objectives and controls established in the Redevelopment Plan.
Drawings, plans and specifications for the Project shall be subject
to the approval of the Agency, which approval shall not be
unreasonably withheld. 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.
11. 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 acquisition of the Site on the terms designated by
the Developer. The parties recognize that such financial
disclosures may contain sensitive information relating to other
business transactions of the Developer and that the disclosure of
such information to third parties could impose commercially
unreasonable and/or anticompetitive burdens on the Developer, and
correspondingly diminish the value or fiscal benefit which may
accrue to the Agency upon the disposition of the Site.
Accordingly, the Agency agrees to maintain the confidentiality of
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any business records described in Government Code Section 6254.15
as may be provided by the Developer to the Agency and its
consul tants 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 has first consented to such a disclosure in
writing or unless a court of competent jurisdiction has compelled
such a disclosure.
12. Developer Acquires No Interest in Property or
in the Site from the Agency. The Developer hereby acknowledges
that it has not acquired, pursuant to this Agreement, any legal or
equitable interest in real property or in the Site from the Agency.
13. 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 the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site or the
proj ect nor shall the Developer establish or permit any such
practice of discrimination or segregation with selection, location,
number, use, or occupancy of tenants, lessees, subleases,
subtenants, or vendees of the land.
14. Default.
a. 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
fifteen (15) 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 hereunder 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 a
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defaul t. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies
of the parties are cumulative and the exercise by either party of
one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights
or remedies for the same default or any other default by the other
party.
In the event that a default of either party may remain
uncured for more than fifteen (15) 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 terminate this Agreement.
15. [RESERVED -- NO TEXTl .
16. Compliance with Law. The Developer
acknowledges that under the Site DDA it shall be required (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 standards.
17. No Assignment of Agreement. This Agreement
shall not be assigned by the Developer(except to a new or successor
entity in which the principals of the Developer have an ownership
interest and management control) without prior written approval of
the Agency, which the Agency may grant or refuse at its sole
discretion.
18. Agency Support. The Agency shall cooperate in
providing Developer with appropriate information in its possession
as it relates to the Site provided that the Agency shall not be
obligated to incur any cost or expense therefor.
19. Required Approvals. No Site DDA between the
parties shall have any force or effect nor shall the Agency be
deemed to be a party to any arrangement for the disposition of land
to the Developer until the terms and conditions of the Site DDA
have been considered and approved by the Agency following the
conclusion of a public hearing as required by law.
20. Press Releases. The Developer agrees to
discuss any press releases it may propose relating to the Site with
a designated Agency representative prior to publication in order to
assure accuracy and consistency of the information.
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21. Notice. All notices required hereunder shall
be presented in person or by FAX and confirmed by First Class
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 receipt.
Either party may change their address for receipt of notice by
notifying the other party.
TO DEVELOPER:
Century Crowell Communities, LP
1535 South "0" Street, Suite 200
San Bernardino, California 92408
Attn: John Pavelak, President
(909) 381-6007
TO AGENCY:
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attn: Executive Director
(909) 384-5081
22. Acceptance of Agreement by the Developer. The
Developer shall acknowledge its acceptance of this Agreement by
delivering the Exclusive Right to Negotiate Charge in cash or
available funds to the Agency by no later than 4:30 p.m. on the
seventh (7th) calendar day following the approval of the Agreement
by the Agency, together with two (2) counterpart executed copies of
this Agreement siged by an authorized officer of the Developer.
23. Authority.
represents and warrants that he
this Agreement on behalf of the
This Agreement may be executed
Each signatory to this Agreement
or she has the authority to execute
principal who he or she represents.
by the parties in counterpart.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the dates indicated next to each of their signatures
as appear below.
DEVELOPER
3, _S._C'\'2t
, '\
Century Crowell Communities, LP
a California limited partnership
By: Century Homes Communities, a California
c rporation Its: Gene a artner
Date:
AGENCY
Date:
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A Counsel
FORM:
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