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HomeMy WebLinkAboutCDC/2003-31 RESOLUTION NO. CDCj2003-31 2 3 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 A 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND TAHITI PARTNERS I, LLC, A LIMITED LIABILITY CORPORATION, FOR THE DEVELOPMENT OF AN OFFICE/RETAIL CENTER AT 514 AND 540 N. ARROWHEAD AVENUE IN THE CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA 4 5 6 7 8 9 WHEREAS, Tahiti Partners I, LLC, a Limited Liability Corporation, (collectively, with 10 any related entity, (the "Property Owner")) is the owner of certain property, (the "Property") 11 located in the redevelopment project area described in the Redevelopment Plan for the Central 12 13 City North Redevelopment Plan for the Central City North Redevelopment Project (the 14 "Redevelopment Plan"); and 15 WHEREAS, the Property Owner has requested certain reimbursement financing from 16 the Redevelopment Agency of the City of San Bernardino (the "Agency") in connection with 17 the construction by the Property Owner of a mixed use office/retail facility situated on 18 approximately three quarters (3/4) acres of land and shall include the construction of a two 19 story complex comprising 7,100 square foot of restaurant/retail space with patio dining to the 20 first floor and 2,000 square foot of office space to the second story and all related off-site 21 public improvements (the "Project"); and 22 WHEREAS, the Project is consistent with the goals of the Redevelopment Plan; and 23 WHEREAS, the Project will assist the Agency in accomplishing its goal to reduce 24 blight in the redevelopment project area described in the Redevelopment Plan, pursuant to 25 the Community Redevelopment Law; and -1- P:\Agendas\Resolutlons\Resolutions\2003\03-09-t5 Tahiti Group CDC Reso.doc CDCj2003-31 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 WHEREAS, Agency staff has prepared a 2003 Property Owner Redevelopment Agreement (Tahiti Partners I, LLC, a Limited Liability Corporation) (the "Agreement"). NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: Section 1. Pursuant to CEQA Regulations Section 15096, the Community Development Commission, as the governing board of the Agency, finds that as a responsible agency under CEQA for the purpose of the redevelopment assistance provided to the Property Owner under the terms of the Agreement, no further environmental review of the Project or the Agreement by the Commission is necessary at this time in connection with its consideration of the approval of the Agreement. The City of San Bernardino has, by separate action, previously approved the Project, subject to a number of conditions and development impact mitigation measures, and the Property Owner shall be responsible for complying with those conditions and measures. A copy of the 2001 CEQA determination of the Design Review Committee of the City of San Bernardino is on file with the City Clerk. Section 2. The Community Development Commission hereby approves the Agreement, which is attached to this Resolution as Exhibit "A." The Community Development Commission hereby authorizes and directs the Executive Director to execute 20 the Agreement on behalf of the Agency. The Executive Director of the Agency is hereby 21 22 23 24 25 authorized to make minor corrections, additions, and clarifications to the Agreement prior to its execution, provided said changes are not substantive in nature, are approved by the City Attorney and do not increase the monetary impact to the Agency under the terms of the Agreement as hereby approved. -2- P:\Agendas\ResoJutlons\Resolutions\2003\03-09-15 Tahiti Group CDC Reso.doc CDC/2003-31 2 3 4 5 6 7 8 9 Section 3. Subject to the satisfaction by the Property Owner of the conditions set forth in the Agreement, the obligation of the Agency to make the reimbursements to the Property Owner under the terms of the Agency Promissory Note from the special source of funds described in the Agreement shall be an "indebtedness of the Agency", as this term is defined in Health and Safety Code Section 33675. The Executive Director is hereby directed to cause the Statement of Indebtedness for the Central City North Redevelopment Project to include the indebtedness of the Agency to the Property Owner, as evidenced by the Agreement and the Agency Promissory Note, to be filed with the Auditor-Controller of San Bernardino County in the manner authorized by law. The Resolution shall become effective immediately upon its adoption. -3- P:\Agendas\Resolutlons\Resolutions\2003\03-09-1S Tahiti Group CDC Reso.doc CDC/2003-31 3 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 A 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND TAHITI PARTNERS I, LLC, A LIMITED LIABILITY CORPORATION, FOR THE DEVELOPMENT OF AN OFFICE/RETAIL CENTER AT 514 AND 540 N. ARROWHEAD AVENUE IN THE CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA 2 4 5 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 8 Community Development Commission of the City of San Bernardino at a j t. reg. meeting 9 thereof, held on the 15th day of September ,2003, by the following vote to wit: 10 Commission Members: Aves Navs Abstain Absent 11 ESTRADA x 12 LONGVILLE ~ MCGINNIS x 13 - DERRY ~ 14 SUAREZ x - 15 ANDERSON X 16 MC CAMMACK x - 17 18 19 The foregoing resolution is hereby approved this /'}n< day of September ,2003. 20 24 a-{~ . h alles, Chairperson m unity Development Commission f th City of San Bernardino 21 22 23 25 By: -4- P:\Agendas\Resolutlons\Resolutions\2003\03-09-15 Tahiti Group CDC Reso.doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT (Tahiti Partners I, LLC) THIS 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT (the "Agreement") is dated as of September 15, 2003, by and between Tahiti Partners I, LLC, a Limited Liability Corporation (the "Property Owner") and the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency"), and the Agreement is entered into with respect to the following facts: RECITALS The Property Owner has entered into an 80 year lease from the Stoll Family Trust for certain lands situated at 514/540 North Arrowhead Avenue, legally described as APN numbers 135-081-11; 12; 13; 14; 15 San Bernardino, California (the "Property"). The Property is located in the redevelopment project area described in the Redevelopment Plan for the Central City North Project Area (the "Redevelopment Plan"). The general location of the Property is shown on a vicinity map and is more particularly described in the legal description of the Property, attached hereto as Exhibit "A" and incorporated herein by this reference. The Property Owner for itself and its successors and assigns and the Agency for itself and its successors and assigns have entered into this Agreement in order to implement the Redevelopment Plan and for the benefit of the redevelopment project area and the Property as authorized under Health and Safety Code Section 33339. NOW THEREFORE IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS OF THE PARTIES, THE PROPERTY OWNER FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS AND THE AGENCY FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, AGREE: Section 1. Effective Date of Agreement and Obligation of the Agency to Make Certain Payments to the Property Owner. This Agreement shall take effect following its approval by the Agency and execution by the parties. The obligation of the Agency to make the payments to the Property Owner under Section 3 of this Agreement shall arise when all of the following conditions have been satisfied by the Property Owner: (a) the Property Owner has submitted to the City of San Bernardino (the "City") a completed application for approval of the Development Project to be constructed and installed on the Property by the Property Owner and the City has taken all final action as necessary or appropriate to approve the Development Project, subject to all applicable zoning and development standards and building regulations of the City of San Bernardino. The words 1 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts.Amend 2003\03-09-15 Tahiti Agreement.doc "Development Project" as used in this Agreement, mean and refer to the improvement and economic revitalization of the Property by the Property Owner as necessary or appropriate to provide for the improvement and use of the Property as a mixed use office/retail facility situated on approximately three quarters (3/4) acres of land. The Development Project shall include the construction of a two story complex comprising 7,100 square foot of restaurant/retail space with patio dining to the first floor and 2,000 square foot of office space to the second story and all related off-site public improvements as necessary or appropriate to accommodate the improvement of the Development Project on the Property. A detailed description of the functional elements of the Development Project (the "Scope of Development and Schedule of Performance") is attached as Exhibit "R" The City is not a party to this Agreement and nothing herein shall be deemed to create any interest in the Property as may otherwise arise under Government Code Section 65860 et seq; (b) the Property Owner has completed the work of improvement of the Development Project on the Property, including the installation of the off-site work to be conducted by the Property Owner in various public street rights-of-way, as described in Exhibit "c" as the "Public Improvement Items," by a date not later than August 1, 2004. For the purposes of this Agreement, the words "work of improvement ofthe Development Project" shall be deemed "completed" on the date when the Property Owner files its notice of completion as defined in Civil Code Section 3093 for the Development Project; (c) the City acting by and through its Development Services Department has accepted as complete the Public Improvement Items; (d) the Property Owner has submitted to the Executive Director of the Agency a true and correct copy of the complete and certified payroll records for the Public Improvement Items which evidence the fact that prevailing wages have been paid to workers employed by the Property Owner, or its general contractor and each subcontractor thereof, to construct and install any of the Public Improvement Items. For the purposes of this subparagraph the words "certified payroll records" shall have the same meaning as set forth at California Labor Code Section 1776; and (e) the Notice of Memorandum of Agreement referenced III Section 11, below, has been fully executed by the parties and filed for recordation. (f) failure to comply with these terms and conditions by the date specified in Section 1 (b) shall render this agreement null and void. Section 2. Conformity of the Development Proiect With the Redevelopment Plan. (a) The Agency has found and determined as of the date of this Agreement, the improvement of the Development Project described in the Scope of Development and Schedule of Performance (See: Exhibit "B"), and thereafter, the operation of the mixed use retaiVoffice facility on the Property is consistent with the Redevelopment Plan. 2 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts~Amcnd 2003\03-09-15 Tahiti Agreement.doc (b) The Agency hereby finds and determines that the redevelopment assistance to be provided by the Agency to the Property Owner, subject to the completion of the Development Project on the terms set forth in Section 3 of this Agreement, is necessary and appropriate, and that the redevelopment covenants of the Property Owner as contained in this Agreement shall materially assist the Agency to eliminate conditions of blight in the Central City North redevelopment project Section 3. Agency Contribution to Pay a Portion of the Development Proiect Public Agency Charges. and Public Improvement Items and Agencv Promissory Note Payable to the Property Owner. (a) The improvement and completion of the Development Project requires the Property Owner to pay various public capital facility impact mitigation fees and public agency permit fees and utility connection capital charges (collectively, the "Public Agency Charges"). (b) The improvement and completion of the Development Project requires the Property Owner to design, construct and install certain off-site public street improvements described in Exhibit "c" as the Public Improvement Items. At the present time, the total estimated cost of the Public Improvement Items is approximately one hundred and five thousand dollars ($105,000) at prevailing wage (c) Subject to the terms and conditions of this Agreement, the Agency hereby agrees to pay the Property Owner from time to time, but solely from the special source of funds described herein, a sum not to exceed sixty eight thousand Dollars ($68,000.00) for the cost of a portion of the Public Improvement Costs: (i) the indebtedness of the Agency to the Property Owner under this Section 3 shall be evidenced by the Agency Promissory Note substantially in the form attached hereto as Exhibit "D"; (ii) the principal amount of the indebtedness shall be verified by the Executive Director following completion of the Development Project and acceptance of the Public Improvement Items (See: Section l(b) and (c)) and Public Improvement Costs incurred by the Property Owner in connection with the improvement of the Development Project together with the certified payroll record for the Public Improvement Items; provided, however, that in the event that the total cost of the Public Improvement Items as actually paid by the Property Owner may in the aggregate be less than the sum of $68.000.00, then in such event, the principal balance of the Agency Promissory Note shall be such lesser amount; (iii) the date of the Agency Promissory Note shall be the day which is sixty (60) days following the recordation of the notice of completion for the Development Project by the Property Owner, as provided in Section l(b), above. No interest shall accrue on the Agency Promissory Note; (iv) the Agency Promissory Note shall have a maturity date which is the tenth (loth) anniversary following its date, and if any unpaid principal balance may be owing 3 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03..Q9-15 Tahiti Agreement.doc after such tenth (10th) anniversary, such sum shall be waived and forgiven by the holder of the Agency Promissory Note; (v) the Agency Promissory Note shall be payable solely from the special source of funds described in the Agency Promissory Note as the "Site Tax Increment" - (e.g., a portion of the property taxes payable on the Property each year from and after the date of the Agency Promissory Note which are allocated and paid to the Agency as tax increment revenue from the Central City North Project, all as more particularly described in the Agency Promissory Note); (vi) the Agency shall execute and deliver the Agency Promissory Note to the Property Owner within sixty (60) days following the last of the following dates to occur: (A) the date on which the Property Owner has caused the notice of completion for the Development Project to be recorded, as set forth in Section l(b); (B) the date on which the City accepts the Public hnprovement Items as complete; (C) the date on which the Property Owner has provided the Executive Director of the Agency with the final accounting of the total costs paid by the Property Owner for the Public Agency Charges and the Public hnprovement Costs together with the certified payroll record for the Public hnprovement Items. (d) Subject to the completion of the Development Project and the verification of the final amount of the Agency indebtedness to the Property Owner as set forth in Section 3(c)(ii), the Agency hereby agrees to pledge certain property tax increment revenues of the Agency as derived from the Property, and as more specifically described in the Agency Promissory Note (the "Site Tax Increment"), to pay the principal sum of the indebtedness of the Agency to the Property Owner evidenced by the Agency Promissory Note. Such pledge of the Site Tax Increment by the Agency shall be subordinate to all existing and future indebtedness of the Agency for the Central City North Redevelopment Project and all refinancings of such indebtedness. Such pledge of the Site Tax Increment shall terminate on the earlier date of either payment in full on the Promissory Note or the date which is ten (10) years following the date of the Agency Promissory Note. Section 4. Covenant of the Property Owner to Pay an "In Lieu" Charge to the Agency in the Event That During the Term of the Promissory Note. the Property. or Portion Thereof. May Be Leased. Assigned. or Acquired by an Entity Which is Exempt from Payment of Ad Valorem Property Taxes. The redevelopment and use of the Property by the Property Owner is of special interest and concern to the Agency. The redevelopment of such lands in accordance with the Agreement shall generate a special source of property tax increment funds payable to the Agency in accordance with Health and Safety Code Section 33760 to fund certain redevelopment activities of the Agency. The obligations and indebtedness of the Agency include, without limitation, the obligations and indebtedness of the Agency which arise under the Agreement and the obligation of the Agency to make certain payments and contributions to the Low- and Moderate-Income Housing Fund from the property tax increment funds payable to the Agency. upon completion of the redevelopment of the Property. 4 P:\Clerical Services Oept\Macgaret\Agreements.Amendments\Agrmts.Amend 2003\03-09-15 Tahiti Agreement.doc The Property Owner hereby covenants and agrees that in the event that the Property or any portion thereof shall be conveyed or leased by the Property Owner, its successors or assigns to any entity or party, that is partially or wholly exempt from the payment of ad valorem property taxes pertinent to the Property or any portion thereof, during the term of the Agency Promissory Note, the Property Owner, its successors or assigns shall pay the Agency a fee in lieu of payment of such taxes each year in an amount which is determined by the Agency to be one percent (1 %) of the full cash value of such exemption from payments of ad valorem property taxes. Such determination of "full cash value" for such in-lieu payment purposes under this Section 4 shall be established by the Agency each year, if necessary, in accordance with the ad valorem property tax valuation principles and practices of Section 2 of Article XIllA of the California Constitution. In the event that the Agency may hereafter determine that an amount is payable to the Agency as an in-lieu payment under this Section 4 of the Agreement, then such amount shall be paid to the Agency each tax year within ninety (90) days following transmittal of the notice of invoice for payment of the in-lieu amount by the Agency to the Property Owner. Section 5. Covenant Against Unlawful Discrimination. The terms and provisions of Health and Safety Code Section 33436 which prohibit various types of unlawful discrimination are hereby incorporated into this Agreement by this reference. Section 6. Special Representations and Covenants of the Property Owner. (a) The Property Owner hereby agrees that in connection with its construction and installation of the Public Improvement Items, that not less than "prevailing wages", as this term is defined at California Labor Code Section 1770 et seq., shall be paid by the Property Owner, its contractor and any subcontractor to all workmen employed in connection with the construction and installation of the Public Improvement Items. The provisions of California Labor Code Sections 1775 and 1776 shall be applicable to the performance of this obligation of the Property Owner as relate to the Public Improvement Items and to the remedies of the Agency in the event of a breach of this obligation by the Property Owner. (b) From and after the date of the delivery of the executed Promissory Note to the Property Owner, the Property Owner for itself and its successors and assigns hereby covenant and agree upon the request of the Agency to provide the Agency with a true and correct copy of all property tax assessment notices, property tax bills and property tax assessment or payment correspondence by and between the Property Owner and the Assessor and Property Tax Collector of San Bernardino County. Section 7. Maintenance Condition of the Property. Subject to the delivery of the Agency Promissory Note to the Property Owner as set forth in Section 3(c)(vi), the Property Owner for itself, its successors and assigns hereby covenants and agrees that: (a) The areas of the Property which are subject to public view (including all existing improvements, paving, walkways, landscaping, exterior signage and ornamentation) 5 P:\Clerical Services Dcpt\Margaret\Agreements.Amendments\Agrmts.Amend 2003\03-09.15 Tahiti Agreement.doc shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that at any time within ten (10) years following the date of recordation of the Notice of Memorandum of Agreement as provided in Section 11, there is an occurrence of an adverse condition on any area of the Property which is subject to public view in contravention of the general maintenance standard described above, (a "Maintenance Deficiency") then the Agency shall notify the Property Owner in writing of the Maintenance Deficiency and give the Property Owner thirty (30) days from receipt of such notice to cure the Maintenance Deficiency as identified in the notice. In the event the Property Owner fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct a public hearing following transmittal of written notice thereof to the Property Owner ten (10) days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Property Owner has failed to comply with the provision ofthis Section 7(a). If upon the conclusion of a public hearing, the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the general maintenance standard, described above, thereafter the Agency shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take other action at law or equity the Agency may then have to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency on the Property authorized by this Section 7(a) shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand for payment by the Agency to the Property Owner, the Agency shall have the right to enforce the lien in the manner as provided in Section 7(c). (b) Graffiti as this term is defined in Government Code Section 38772, which has been applied to any exterior surface of a structure or improvement on the Property which is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Property Owner by either painting over the evidence of such vandalism with a paint which has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water as appropriate. In the event that such graffiti may become visible from an adjacent or contiguous public right-of-way but is not removed within 72 hours following the time of such application, the Agency shall have the right to enter the Property and remove the graffiti without notice to the Property Owner. Any sum expended by the Agency for the removal of such graffiti from the Property authorized by this Section 7(b) in an amount not to exceed $250.00 per entry by the Agency, shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand for payment by the Agency to the Property Owner, the Agency shall have the right to enforce its lien in the manner as provided in Section 7(c). (c) The parties hereto further mutually understand and agree that the rights conferred upon the Agency under this Section 7 expressly include the power to establish and enforce a lien or other encumbrance against the Property, or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c in the as amount reasonably necessary to restore the Property to the maintenance standard required under Section 7(a) or Section 7(b), including attorneys fees and costs of the Agency associated with the abatement of the Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in connection with such action. The provisions of this Section 7, shall be a covenant running with the land for the term as provided in Section 9 and shall be enforceable by the Agency. 6 P:\Clerical Services Dept\Margaret\Agreements.Amendments\Agnnts.Amend 2003\03-09-15 Tahiti Agreement.doc Nothing in the foregoing provisions of this Section 7 shall be deemed to preclude the Property Owner from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that such changes comply with applicable zoning and building regulations of the City. Section 8. Defaults and Breach - General. This Agreement shall have no further force or effect in the event that the Property Owner may fail to complete the improvement of the Development Project by the date indicated in Section 1 (b). In the event that the Development Project may not be completed by such date for any reason, then in such event, neither party shall be under any further obligation under this Agreement, and the rights of the parties hereunder shall be released and discharged. Failure or delay by either party to perform any material term or provision of Section 3, Section 4, Section 5 or Section 7 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 thirty (30) 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 default. 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 thirty (30) 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 appropriate remedy or damages by initiating legal proceedings. Section 9. Covenants Running With the Land. This Agreement is expressly declared by the parties for themselves and for the successors and assigns of each of them, to be for the benefit of the Property and the redevelopment project area of the Central City North Redevelopment Project: (a) The provisions of Section 4, Section 6(b) and Section 7 of this Agreement are covenants which runs with the land and the Property for a term of ten (10) years from the date of the Notice of Memorandum of Agreement as set forth in Section 11. 7 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrtnls-Amend 2003\03-09~ 15 Tahiti Agreemenl.doc (b) [RESERVED - NO TEXT] (c) The provisions of Section 5 of this Agreement are a covenant which runs with the land and the Property in perpetuity. Section 10. Earlv Termination of Agreement By Property Owner. The Property Owner may terminate this Agreement at its discretion for any reason before the date on which the Agency Promissory Note is executed and delivered to the Property Owner by serving written notice of termination of the Agreement to the Agency which specifically refers to this Section 10 of the Agreement. Upon receipt by the Agency of such written notice of termination, the Agency shall cause to be recorded a release of the Notice of Memorandum of Agreement, and thereafter the parties shall be mutually release from any further obligation which arises under this Agreement. Section 11. Notice of Memorandum of Agreement. The parties hereby agree and declare that the successors and assigns of each shall be bound by the terms of this Agreement. The parties shall execute and the Agency shall cause to be recorded a Notice of Memorandum of this Agreement substantially in the form as attached hereto as Exhibit "E" and incorporated herein by this reference. The Notice of Memorandum of Agreement shall be recorded promptly upon the full execution of this Agreement by the parties. Section 12. Attorneys' Fees. If either party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, then the prevailing party shall be entitled to recover as an element of its costs of suit and not as damages, its reasonable attorneys' fees as fixed by the Court in such action or proceeding or in a separate action or proceeding brought to recover such attorney's fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the Agency shall be considered as "attorneys' fees" for the purposes ofthis section. Section 13. Headings and Attachments. The headings of each section of this Agreement are provided for purposes of reference and convenience only and do not have any meaning which is independent of the text of the section of the Agreement to which they may generally correspond. The following is a list of documents that are attached as part of this Agreement: Exhibit "D" Vicinity Map and Legal Description of the Property Scope of Development and Schedule of Performance Description of Off-Site Public Street Work Agency Promissory Note Notice of Memorandum of Agreement Exhibit "A" Exhibit "B" Exhibit "C" Exhibit "E" 8 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnts-Amend 2003\03-09-15 Tahiti Agreement.doc THIS 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT is dated as of September 15 ,2003 and this Agreement shall have no force nor effect unless it has been approved by the governing body of the Agency and executed by the authorized officers of the Property Owner and the Agency as evidenced by the signatures of each of them which appear below. This Agreement may be executed in counterpart and when fully executed by the parties, each counterpart shall be deemed to be part of one original Agreement. AGENCY Date: /0 ~)---- /c:3 '( / Approved As To Form: By. C/~rf!4 Agency Special ounsel PROPERTY OWNER . an er W oude, Chairman Manager Date: By: 9 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-09-15 Tahiti Agreement.doc THIS 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT is dated as of , 2003 and this Agreement shall have no force nor effect unless it has been approved by the governing body of the Agency and executed by the authorized officers of the Property Owner and the Agency as evidenced by the signatures of each of them which appear below. This Agreement may be executed in counterpart and when fully executed by the parties, each counterpart shall be deemed to be part of one original Agreement. AGENCY Redevelopment Agency of the City of San Bernardino Date: By: Gary Van Osdel, Executive Director PROPERTY OWNER Date: By: Jack D. Vander Woude, Chairman Manager By: 9 P:\Development Dept\Colin\Tamti Agreement.doc EXHmIT "A" VICINITY MAP AND LEGAL DESCRIPTION OF THE PROPERTY Vacant Land Northwest Comer of Arrowhead Avenue and 5th Street, 514/540 North Arrowhead Avenue, San Bernardino: APN: 0135-081-11;12;13;14;15 10 P:\Clerical Services Dept\Margaret\Agreements.-AmendmenlS\Agrmts-Amend 2003\03-09-15 Tahiti Agreement-doc --lQ" 07.)_"""= =-= a _..~ --, -:i "~~ ,!l u Ii ::l Ii ~ Ii vie ~ i " . v , E I . I ... '" ~ 0> (IJ '" '" :J 0> c 0 (IJ e > U w <( 0 ....J ::> ....J ~ """0 CU -'15 (IJ 0 z ..c .!!! If) <( $~ ~ > UJ l< o~ U Z <( ......'" .., ......u <t: 0' l- i-: e: ~ <( ~] <( . N 0.. ~ +-J~ ... N (IJ'" \.0 0> (lJe: \.0 <( ......~ 0 +-J UJ 6 Vl I- z c ..c ::> a: ......, 0 <( l1') z a: U ~ w m ~ z <( Z '" ~ '" >< 0 m d a.: ~ " / o ~ E~ :;lm ~,o ';8' ~~ 2' .... Cl< - ":J_ w .........u .~ lolE .Cl< "" 0 EXHIBIT "B" SCOPE OF DEVELOPMENT AND SCHEDULE OF PERFORMANCE Project approved with Development Permit Type IT No. 01-23 for 8,200 square foot office/retail center on approximately 30,740 square feet ofland at the northwest corner of Arrowhead Avenue and 5th Street at 514/540 North Arrowhead Avenue in the CR-2 (Commercial Regional) land use in the Central City North Project Area. The project will consist of7,100 square foot of retail space to the first floor with five units ranging from 1,200 square feet to 1,900 square feet with inside and patio seating with the remainder being office space to the second floor. There are 43 sparking spaces. Certain public improvements are required such as work to curbs, gutters, signalization etc. which are listed in more detail in Schedule "D" Description of Off- Site Public Street Work. PROPOSED SCHEDULE OF PERFORMANCE Construction drawings finalized: January 15,2004 Development Services approvals/Building Permits February 15, 2004 Financing in Place March 1,2004 Construction Commences March 30, 2004 Certificate of Completion Issued August 1,2004 11 P:\Clerical Services Dept\Margaret\A.greements--Amendments\Agrmts-Amend 2003\03-09-15 Tahiti Agreement.doc EXHIBIT "C" DESCRIPTION OF OFF-SITE PUBLIC STREET WORK DEMOLITION/CONCRETE Removal of sidewalk, curbs and gutters and recast according to current codes Creation of drive approaches Creation of Handicapped ramp Creation of Curb Inlet Adjust manhole to grade Relocate existing trees UTILITIES: Installation of lateral sewer Installation fire lateral Relocate water meters TRAFFIC: Relocate street lights 12 P:\Clerical Services Dept\Margaret\Agreements-Amendmenls\Agrmts-Arnend 2003\03-09-15 Tahiti Agreement.doc EXIDBIT "D" AGENCY PROMISSORY NOTE 13 P:\ClericaJ Services Dept\Margaret\Agreements--Amendments\Agnnts.Amend 2003\OJ..Q9-IS Tahiti Agreement.doc REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AGENCY PROMISSORY NOTE Tahiti Partners I, LLC NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF ANY PUBLIC AGENCY, INCLUDING THE CITY OF SAN BERNARDINO AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, IS PLEDGED TO THE PAYMENT OF PRINCIPAL AND INTEREST HEREOF Principal Amount: Date: $ 68,000.00 (Sixty Eight Thousand Dollars) [Not to Exceed $68,000.00, the specific amount shall be verified by Property Owner accounting of actual Public Agency Charges incurred and Public Improvement Costs incurred: See Section 3(b)(ii) of the Agreement] Date of Agency Promissory Note: See Section 3(c)(iii) of the Agreement] Maturity Date: 10 years following date of Agency Promissory Note THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO PROMISSORY NOTE (the "Agency Promissory Note"), evidences an indebtedness of the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency") to Tahiti Partners I, a Limited Liability corporation (herein the "Holder"). The Agency Promissory Note is hereby tendered in accordance with that certain 2003 Property Owner Redevelopment Agreement dated as of September 15, 2003, (the "Agreement"), by and between the Holder and the Agency with respect to the following facts: RECITALS This Agency Promissory Note is an indebtedness of the Agency incurred in connection with the implementation of the Redevelopment Plan for the Central City North Redevelopment Project; and This Agency Promissory Note evidences an indebtedness of the Agency to the Holder for the repayment by the Agency to the Holder of a loan for the payment of portion of certain Public Agency Charges as set forth in the Agreement, which indebtedness has been incurred by the Agency in connection with the redevelopment by the Holder of certain real property located within the 1 P:\Development Dept\Colin\Tahiti Promissory Note.doc redevelopment project area of the Central City North Redevelopment Project as more specifically described in the Agreement (the "Property"). FOR VALUE RECEIVED, THE AGENCY HEREBY PROMISES TO PAY TO THE ORDER OF THE HOLDER AT SUCH ADDRESS AS THE HOLDER SHALL DESIGNATE FROM THE SPECIAL SOURCE OF FUNDS AS HEREINAFTER DESCRIBED, THE PRINCIPAL AMOUNT OF THE AGENCY PROMISSORY NOTE AT THE TIMES SPECIFIED HEREIN FROM THE FUNDS AS AVAILABLE TO THE AGENCY THEREFORE (HEREINAFTER DEFINED AS THE "SITE TAX INCREMENT") IN ACCORDANCE WITH THE TERMS HEREOF: Section 1. Unless otherwise provided herein, the terms and phrases as used in this Agency Promissory Note shall have the same meaning as found in the Agreement. A copy of the Agreement is on file with the Agency Secretary. Section 2. The Agency Promissory Note is tendered to the Holder in connection with the obligation of the Agency to repay the Property Owner for a loan to the Agency of an amount to pay a portion of the Public Agency Charges associated with the improvement of the Development Project on the Property as set forth in the Agreement. The principal amount of the Agency Promissory Note on the date when the Development Project is deemed complete as set forth in the Agreement is sixty five percent of the gross tax increment over base value for the next ten years not to exceed Sixty Eight Thousand Dollars ($68,000). Section 3. Promissory Note. No interest shall accrue on the outstanding principal amount of the Agency Section 4. Installments of principal as may be due hereunder shall be paid to the Holder solely from the Site Tax Increment, as described in Section 7, below, annually on January 1 of each year, commencing with a first payment (pro rated) on the January 1 following the date of this Agency Promissory Note. Thereafter, payments of principal due on the Agency Promissory Note shall be paid solely from the Site Tax Increment on each subsequent January 1, until the maturity date when the final payment shall be made (pro rated); provided however, that no payment shall be due or payable on the Agency Promissory Note on any such payment date unless the Holder has first submitted appropriate written evidence to the Agency that the property taxes as assessed for the Property have been paid to the Tax Collector of San Bernardino County for the fiscal year preceding the date when the payment of an installment under the Agency Promissory Note is payable to the Holder. Section 5. The Agency Promissory Note shall have a maturity date which is the tenth (lOth) anniversary following the date of this Agency Promissory Note, and if any unpaid principal balance may be owing after the payment due the Holder from Site Tax Increment on such tenth (lOth) anniversary, such balance shall be waived and forgiven by the Holder. Section 6. The Agency may prepay the outstanding principal balance on the Agency Promissory Note without penalty at any time. 2 P:\Development Dept\Colin\Tahiti Promissory Note.doc Section 7. Notwithstanding any other provision of this Agency Promissory Note or the Agreement to the contrary, the obligation of the Agency to the Holder to make payments of principal hereunder prior to the maturity date shall be a special limited obligation of the Agency and shall not be deemed to be a general obligation of the Agency or the City of San Bernardino. The sole source of repayment for the indebtedness of the Agency, evidenced by the Agency Promissory Note, shall be derived from the Site Tax Increment as follows: the Site Tax Increment is a portion of the locally assessed secured roll property tax increment revenues as realized by the Agency each fiscal year from the Central City North Redevelopment Project from and after the date of this Agency Promissory Note as a result of the redevelopment of the Property by the Holder and the receipt by the Agency of locally assessed secured roll ad valorem property taxes paid with respect to the Property which are allocated, paid to and received by the Agency pursuant to Health and Safety Code Section 33670(b). Said portion of the property tax increment revenues of the Agency shall be determined as of each January I, prior to maturity of this Agency Promissory Note, by the application of the following formula, following the date of this Agency Promissory Note with respect to the locally assessed secured roll ad valorem property taxes as paid to the Tax Collector of San Bernardino County for the Property: (Total Property Taxes Paid')-(Base Year Value2) The Agency Promissory Note shall not be payable out of tax increment revenues derived from any other lands of the Central city North Redevelopment Project nor from any other funds of the Agency. Neither the faith and credit nor the taxing power ofthe City, the Agency nor the County of San Bernardino is pledged to the payment of principal or interest on the Agency Promissory Note. Section 8. Upon the date of maturity of the Agency Promissory Note (and after the payment to the Holder of the Site Tax Increment (pro rated), if any, on the tenth (lOth) anniversary date), all remaining unpaid principal of the Agency Promissory Note shall be waived, discharged and forgiven by the Holder. Notes on formula for the calculation of "Site Tax Increment" presented in Section 7, above: 1. "Total Property Taxes Paid" means the total amount of current tax year locally assessed secured roll ad valorem property taxes assessed to the Property and paid by the owner of the Property to the Tax Collector of San Bernardino County. 2. "Base Year Value" means a portion of Total Property Taxes Paid which is attributed to the assessed value of the Property for ad valorem property tax assessment purposes as of January 1, 20__ [note: this value may be shown as of January 1, 20 on the State unitized property tax rolls for railroad utility property] . 3 P:\Development Dept\Colin\Tahiti Promissory Note.doc Section 9. The Holder may transfer or assign its right to receive payments of principal under the Agency Promissory Note upon receipt by the Agency of written notice of such assignment executed by the Holder and the new holder of the Agency Promissory Note which indicates the new name and address for payment to the holder of the Agency Promissory Note and which written notice shall also state as follows: "The undersigned assignee of the Agency Promissory Note hereby acknowledges that the Agency shall have no obligation to pay to the assignee any amounts of principal as may be due hereunder except from a special source of funds described in the Agency Promissory Note as the "Tax Site Increment" and further subject to the condition that the assignee has first provided the Agency with appropriate written evidence that locally assessed secured roll property taxes for the Property have been paid to the Tax Collector of San Bernardino County for the fiscal year preceding the payment due under the Agency Promissory Note." THIS AGENCY PROMISSORY NOTE is executed on this _ day of 200_, at San Bernardino, California. REDEVEWPMENT AGENCY OF THE CITY OF SAN BERNARDINO Executive Director (Seal) ATTEST: Agency Secretary Approved As To Form: Agency Special Counsel 4 P:\Development Dept\Colin\Tahiti Promissory Nole.doc EXHIBIT "E" NOTICE OF MEMORANDUM OF 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT 14 P:\ClericaJ Services Dept\Margaret\Agreements.Amendments\Agnnts.-Amend 2003\03-09.15 Tahiti Agreement.doc Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn: Executive Director ) ) ) ) ) ) ) ) (Space above line reserved for use by Recorder) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: (Recordation of this Document Exempt from Fees Payable to Recorder under Government Code Section 6103) NOTICE OF MEMORANDUM OF 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT Redevelopment Agency of the City of San Bernardino (Tahiti Partners I, LLC) TO ALL INTERESTED PERSONS, PLEASE TAKE NOTICE THIS NOTICE OF MEMORANDUM OF 2003 PROPERTY OWNER REDEVELOPMENT AGREEMENT (the "Memorandum") is dated as of September 15, 2003 by and between Tahiti Partners I, LLC, a Limited Liability Corporation (the "Property Owner") and the Redevelopment Agency of the City of San Bernardino (the "Agency"). This Memorandum affects certain real property in the City of San Bernardino, County of San Bernardino, California, located at 514/540 North Arrowhead Avenue, San Bernardino, California (the "Property"). The Property is more particularly described in the legal description attached hereto as Exhibit "1" and incorporated herein by this reference. PLEASE TAKE FURTHER NOTICE that the Property Owner and the Agency have entered into that certain "2003 Property Owner Redevelopment Agreement," dated as of September 15, 2003, which affects the Property Owner and the Agency which benefit and burden the Property and which run with the land for the period of time as set forth therein. Section 4 of the Agreement is entitled: Covenant of the Property Owner to Pay an "In Lieu" Charge to the Agency in the Event That During the Term of the Promissory Note, the Property, or Portion Thereof, May Be Leased, Assigned, or Acquired by an Entity Which is Exempt from Payment of Ad Valorem Property Taxes. 1 Section 5 of the Agreement is entitled: Covenant Against Unlawful Discrimination. Section 6 of the Agreement is entitled: Special Representations and Covenants of the Property Owner. Section 7 of the Agreement is entitled: Maintenance Condition of the Property. Interested persons may inspect a copy of the text of the 2003 Property Owner Redevelopment Agreement which is on file as a public record of the Agency in the office of the Agency Secretary during regular business hours. This Memorandum may be executed by the parties in counterpart. The recordation of this Memorandum is authorized by action of the Agency under Government Code Section 6503 and Health and Safety Code Sections 33337, 33338 and 33339. PROPERTY OWNER Tahiti Partners I, LLC, a Limited Liability Corporation Jack D. Chairman Dated: \O\IS\C2a \ By: AGENCY Dated: 1~~"7 Redevelopment Agency of the City of San Bernardino, a bOdY~~ politic By' ~n OSd;? t Exe tive Director (ALL SIGNATURES TO BE ACKNOWLEDGED) 2 CALIFORNIA NOTARY ACKNOWLEDGMENT State of California County of San Bernardino } ~ On (X>tobeA \5/Jj)()3. before me, ~ U&n vn personally appeared ::s-~( ALD. Vcu-d(r tNbl.-tc4 e, pe!,,!C:on~Il:' 'mown to me (or proved to( me 9ft/the basis of satisfactory evidence) to be the person.) whose nameta} is/.wle subscribed to the within instrument and acknowledged to me that he:..:,.....::.:,.....J executed the same in his/hll.'iheir authorized capaclty~, and that by hlsJh~.:U,...jr signatur$) on the Instrument the personta), or the entity upon behalf of which the person~ acted, executed the Instrument. WITNESS my hand and official seal t4;(~~/ ,1 it -ERICA BROWN ( _ Comm.' 1247386 III Ul NOTARYPUBLlC.CALlFORNIA VI San Barnardino County - ~ My Comm. Expl!1I Oae. 27. 2003 t (This area for official notarial sea/) \forms\exam\acknowledgment CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT County of San Bernardino r ss. State of California On October 15, 2003, before me, Margaret L. Parker, Notary Public, personally appeared Gary Van Osdel. o personally known to me o proved to me on the basis of satisfactory evidence ~~~ - - - -~L-_ ~ f _ COlMlIIIIon (I 141a7C9 I NoIary NlIc . CalIomIa f San 1eIr.ad... CounIv - _ _ _ ~~~~~~t to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. ~~L:~ Place Notary Seal Above Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Notice of Memorandum of 2003 Property Owner Redevelopment Agreement Document Date: September 15, 2003 Number of Pages: 3 Signer(s) Other Than Names Above: Jack D. Vander Woude Capacity(les) Claimed by Signer Signer's Name: Gary Van Osdel o Individual o Corporation Officer - Title (s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee o Guardian or Conservator o Other: Executive Director Signer is Representing: Redevelopment Agency of the City of San Bernardino RIGHT THUMBPRINT OF SIGNER Top of thumb here EXHIBIT "1" Legal Description of the Property Vacant Land Northwest Corner of 514/540 North Arrowhead Avenue, 11;12;13;14;15 Arrowhead Avenue and 5th Street, San Bernardino: APN: 0135-081- Exh. "I" - 1