HomeMy WebLinkAboutCDC/2003-38
RESOLUTION NO. CDC/2003-38
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT
STUDY AGREEMENT FOR PROPERTY ACQUISITION AND
REDEVELOPMENT ASSISTANCE WITH TRI PALM DEVELOPMENT,
INC. (MT. VERNON CORRIDOR REDEVELOPMENT PROJECT)
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WHEREAS, the Agency has acquired and owns certain lands as generally depicted i
Exhibit "A" (the "Agency Property"); and
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WHEREAS, the Agency Property is situated in an area which is referred to as the "Mt.
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Vernon Corridor Redevelopment Project Area" and third parties own certain lands which ar
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Property"); and
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adjacent or nearby the Agency Property as generally depicted in Exhibit "B" (the "Privat
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WHEREAS, the Agency is prepared to consider and study the provision of certai
redevelopment assistance to Tri Palm Development, Inc. (the "Developer") to facilitate th
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assembly of the Private Property with the Agency Property into developable parcels of land so a
to foster the community economic development goals and objectives of the City of S
Bernardino (the "City") as it relates to the Mt. Vernon Corridor Redevelopment Project and th
Agency has designated for such study purposes, the land included within the perimeters of th
tract marked by the boundary lines depicted in Exhibit "c" (the "Study Area") for such study;
and
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WHEREAS, the Study Area includes both the Agency Property and the Private Property'
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and
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WHEREAS, the Agency intends to initiate certain additional studies and proposals t
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address a number of issues of community concern in the Study Area relating to elimination an
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prevention ofthe spread of blight from the Study Area; and
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CDC/2003-38
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WHEREAS, the Developer is qualified to assist the Agency to undertake the study 0
specific proposals and plans for a coordinated and economically sustainable redevelopmen
project in the Study Area, which will require specific study, evaluation, and planning by the Cit
and Agency, as applicable, of appropriate and feasible community redevelopment progr
alternatives; and
WHEREAS, in accordance with the provisions of the California Environmental Quality
Act (CEQA), a redevelopment study agreement is exempt from the provisions of CEQA.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
Section 1. The Community Development Commission hereby authorizes and
approves the Agreement by and between the Agency and Developer in the form as presented at
the meeting of the Commission at which this Resolution is adopted and hereby authorizes the
Executive Director to execute the Agreement on behalf of the Agency together with such
technical and conforming changes as recommended by the Executive Director and approved by
the Agency Counsel.
Section 2. The Resolution shall become effective immediately upon its adoption.
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CDC/2003-38
1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO, CALIFORNIA APPROVING AND
2 AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
3 (" AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY
AGREEMENT FOR PROPERTY ACQUISITION AND REDEVELOPMENT
4 ASSISTANCE WITH TRI PALM DEVELOPMENT, INC. (MT. VERNON
CORRIDOR REDEVELOPMENT PROJECT)
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6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
7 Development Commission of the City of San Bernardino at a j oint regular
meeting
8 thereof, held on the 17th day of November
, 2003, by the following vote, to wit:
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Commission Members: Ayes Nays
ESTRADA X
LONGVILLE X
MCGINNIS X
DERRY X
SUAREZ X
ANDERSON X
MCCAMMACK X
Abstain
Absent
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~tdJ4L
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20 The foregoing Resolution is hereby approved this !)CJ 7'l1 day of November
2003.
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Betty Dean Anderson, Vice Chair
Community Development Commission
City of San Bernardino
Approved a to form and legal content:
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CDC/2003-38
THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE AGREEMENT
(TR! PALM DEVELOPMENT, INC.:
MT. VERNON CORRIDOR REDEVELOPMENT PROJECT)
REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE
AGREEMENT, is dated as of November 17,2003 (the "Agreement") and is entered into by and
between TRI PALM c.Df!P(j~ATTON ., a 6c \ C~ (the "Developer") and the
REDEVELOPMENT AGENCY OF THE CITY OF SAN B ARDINO, a body corporate and
politic, (the "Agency") in light of the facts set forth in the following recital paragraphs:
RECITALS
As of the "Effective Date", as this term is defined below, the Agency has acquired and
owns certain lands as generally depicted in Exhibit "A" (the "Agency Property"); and
The Agency Property is situated in an area which is referred to as the "Mt. Vernon
Corridor Redevelopment Project Area" and as of the Effective Date, third parties own certain
lands which are adjacent or nearby the Agency Property as generally depicted in Exhibit "B" (the
"Private Property"); 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 relate to the Mt. Vernon
Corridor 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
"c" (the "Study Area") for such study; and
The Study Area includes both the Agency Property and the Private Property; 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 Study Area; 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 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 alternatives; and
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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 Study Area, 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 nor 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. The Developer shall not assign all or any part of this Agreement, or any rights
hereunder, without the prior written approval of the Agency Executive Director, which the
Agency Executive Director may grant or refuse in his or her sole and absolute discretion.
c. The Developer shall promptly notify the Agency in writing of any and all changes
whatsoever in the identity of the business entities and individuals either comprising or in control
of the Developer, as well as any and all changes in the interest or the degree of control of the
Developer by any such party, of which information the Developer or any of its partners or
officers have been notified or may otherwise have knowledge or information. Upon the
occurrence of any significant or material change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer (other than such changes
occasioned by the death or incapacity of any individual) that has not been approved in writing by
the Agency Executive Director, prior to the time of such change, the Agency may terminate this
Agreement by serving written notice of such termination, referencing this Section, on the
Developer.
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d. This Agreement shall automatically terminate, without further notice or
action, and be of no further force or effect eighteen (18) months following the Effective Date,
unless prior to that time:
(1) the parties execute the Project DDA, as described below, which will
include, without limitation, other relevant community redevelopment covenants acceptable to the
Agency and such other terms and conditions mutually acceptable to the parties, in which case
this Agreement shall terminate on the effective date of the Project DDA; or,
(2) the parties each agree to extend the term of this Agreement in writing to a
specific date, subject to the Agency first making a finding in its sole discretion that satisfactory
progress is being made to complete the activities to be performed by the Developer set forth in
Section 3; or
(3)
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a party terminates this Agreement as provided under Section 19 or Section
2. The Project.
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 Study Area, either in whole or in part, and for
undertaking the commercial-retail development project as generally set forth in the conceptual
proposal attached as Exhibit "D" (the "Project").
3. Nel!:otiation Period. Project Study and Project Study Costs.
a. The rights and duties of the parties established by this Agreement shall commence
following its approval by the governing body of the Agency when it has been fully executed by
the parties within the period of time authorized in Section 17 (such date being the "Effective
Date"). This Agreement will continue in effect until a date which is eighteen (18) months from
the Effective Date unless such date shall have been first extended as authorized under Section
l.d.(2). Such time period during which this Agreement shall be in effect (including any
extensions of time approved by the Agency) is referred to as the "Negotiation Period".
b. Within sixty (60) days following the Effective Date, the Agency and the
Developer shall initiate the preparation of a feasibility study for the redevelopment of the 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 one
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hundred and twenty (120) days following the Effective Date. The Initial Study may be prepared
by either the Agency or the City as the "lead agency" as this term is defined in CEQA.
Thereafter, provided the Developer has completed the studies described in Section 3.h.(A) and
(B) in sufficient detail to be mutually acceptable to the Developer and the Agency, the Agency
and Developer shall on a best efforts basis, cause a draft environmental impact document for the
Project to be circulated for public comment and review within 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,
including without limitation, the conduct of a public hearing on a final environmental impact
document for the Project, within six (6) months 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:
(i) be subject to the acceptance and approval of the Agency which
approval shall not be unreasonably withheld, conditioned or delayed;
(ii) depending on the nature of such a modification, a suitable
modification of the environmental and other elements of the Project Study as
modified, may also be indicated.
The Agency may request that the Developer consider modifications to the description of
the Project from time-to-time. Each such modification shall be subject to the reasonable
approval of the Developer.
d. The Agency shall on a best efforts basis during the course of the Project Study
consider the specific terms and conditions of redevelopment assistance which the Developer may
propose to include in the Project DDA; provided however the Agency reserves the sole and
absolute discretion to accept, reject or modify any such proposed term or condition to the Project
DDA in its sole discretion.
e. Notwithstanding any other provlSlon of this Agreement to the contrary and
provided the Agency is not in default, the Agency reserves the sole and absolute discretion to
suspend the Project Study and terminate this Agreement at any time, in its sole and absolute
discretion subject to the terms of Section 19.c.
f. During the course of the Project Study, the Agency shall pay for any "Project
Study Costs" and expenses of third party consultants who are engaged by the Agency under
written contract to undertake one or more elements of the Project Study. Project Study Costs do
no include third party costs incurred by the Developer in connection with the preparation or
submission of any information relating to the Project on which any element of the Project Study
may be based, including civil engineering expenses, architectural fees, accounting fees and the
like. Each party shall bear its own legal fees and costs in connection with the Project Study.
g. All third-party consultants retained by the Agency to prepare any study or
document as part of the Project Study shall be subject to the sole control and direction of the
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Agency. The work product of any such person shall be the property of the Agency and the
Agency shall have the right to use and republish such work product for any purpose.
h. Subject to the terms and conditions of this Agreement, the Developer and the
Agency shall undertake an economic feasibility study of the Project as part of the Project Study
consisting of the elements as set forth below:
(A) 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, project income, and a proforma
statement of Project capital return including, without limitation, the following:
(1) projections of Project income and operating expenses; and,
(2) projections of debt and equity that can be drawn from the Project;
and,
(3) projections of Project cash flow; and,
(4) projections of public (City, State, and federal) financial assistance
anticipated for the Project; and,
(5) projections of overall Project value, revenue, sales and property
taxes; and,
(6) projections of the costs and benefits to the City and the Agency for
all construction, maintenance and operations of all proposed public
improvements; and,
(7) projections of the costs of additional or increased levels of public
services; and,
(8) 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 (1) through (8) above shall be completed by the Developer and submitted to the
Agency within sixty (60) days following the Effective Date. Thereafter the parties shall refine
the draft document as submitted by the Developer in accordance with a schedule of refinement
work for such studies to be mutually approved by the parties.
(B) 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:
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(1) proposed land use categories on a parcel-by-parcel basis, including
proposed zoning and General Plan changes, if any, necessary to
accommodate the Project; and
(2) 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
(3) proposed financing plan identifying the timing of receipt by the
Developer and the Agency, as applicable, of the financing sources
for all private and public improvements proposed in the Project, by
phase, if applicable; and
(4) proposed financing plan for the acqUlsltlOn by the Developer
and/or the Agency of any Private Property as necessary for the
Project; and
(5) a list of potential users or tenants and anticipated lease rates and
resale land prices.
The conceptual development plan for the Project as described above may be
revised from time-to-time in accordance with a schedule of preparation and revisions as may be
mutually approved by the parties.
i. The Developer shall inform the Agency in wntmg whether based on the
information set forth in Section 3.h., the Developer believes that the Project is feasible prior to
the time when the Agency shall cause a "Notice of Preparation" or a "Notice of Intention to
Adopt a Negative Declaration" as these terms are defined in CEQA, as applicable to be
circulated to interested person or responsible agencies for the Project. Thereafter, the Developer
and the Agency may proceed to negotiate the final form of an agreement for in which the
specific terms for the redevelopment of the Property may be set forth on terms mutually
acceptable to the parties (the "Project DDA").
j. 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 (10) 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. Obli!!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 Proj ect;
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 in 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 on any such parcel of Private Property
during the Negotiation Period without first obtaining the written permission of the Agency.
5. A!!encv Not to Ne!!otiate with Others.
a. The Agency, currently, deems the disposition of the Agency Property and the
redevelopment of the 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 of all of the
Property, including the sale of the Agency Property to the Developer.
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 any 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 submit and the Agency may consider any proposal for the disposition and/or
redevelopment of any lands adjacent to the Study Area.
c. During the Negotiation Period, the Agency may in 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
offered for sale or which otherwise may become available for acquisition during the Negotiation
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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 Study Area. The Agency
may also provide any other information in its possession that would customarily be furnished to
persons requesting information from the Agency concerning its activities, goals and matters of a
similar nature, or as required by law to be disclosed upon request.
6. A2;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 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 the 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 or to be performed relative to the Study Area.
E. In the event the Developer acquires fee title to any of the Private Property
during the Negotiation Period (the "Developer Acquired Property") and thereafter the Agency
and the Developer are unable to negotiate and execute the final form of the Property DDA, or the
Agency terminates this Agreement in its discretion without cause or default by the Developer,
the Agency shall purchase the Developer Acquired Property from the Developer, at the fair
market value of the Developer Acquired Property, or the purchase price paid by the Developer,
whichever is less upon termination of this Agreement.
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7. Nee:otiation of Proper tv DDA.
During the Negotiation Period, the Agency and the Developer shall negotiate diligently
and in good faith to prepare and enter into the Project DDA. Both of the parties shall exercise
best efforts to complete discussions relating to the final terms and conditions of the Project DDA
and such other matters, as may be mutually acceptable to the parties for the redevelopment of the
Project on the Property, prior to the expiration of the Negotiation Period.
8. Consideration for this Ae:reement and Reservation of Rie: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 Project or the Study Area.
9. Plan nine: and Desie:n; Related Acknowlede:ments of the 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 Study Area
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 or the Study Area, 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 or Private 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 or the Private 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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11. Developer Acquires No Interest in Real Propertv or in the A!!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.
Furthermore, nothing in this Agreement shall be deemed to be a commitment or understanding
by the Agency to assist the Developer to acquire any of the Private Property.
12. Nondiscrimination.
The Developer shall not discriminate against nor segregate any person, or group of
persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or
ancestry in undertaking its obligations under this Agreement.
13. Compliance with Law.
The Developer acknowledges that the Property DDA, if mutually agreeable terms are
established, is likely to require the Developer (among other things) to carry out the construction
of certain improvements in conformity with all applicable laws, including all applicable planning
and zoning laws, environmental planning and safety laws and federal and state labor and wage
laws.
14. Required Approvals.
No Project DDA between the parties shall have any force or effect nor shall the Agency
be deemed to be a party to any agreement for the disposition of real or personal property to the
Developer, until the terms and conditions of the Project DDA are considered and approved by
the governing body of the Agency, following the conclusion of a public hearing, as required by
law.
15. Press Releases.
The Developer agrees to discuss any press releases it may propose relating to the
Property with the Agency Executive Director or his/her designee, prior to publication, to assure
accuracy and consistency of the information.
16. Notice.
All notices required hereunder shall be presented in person or by FAX and confirmed by
First Class certified or registered United States mail with return receipt requested. Notice shall
be deemed confirmed by United States mail effective the second business day after deposit with
the United States Postal Service. Notice by personal service shall be deemed effective upon
delivery. Either party may change their address for receipt of notice by notifying the other party
in writing.
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CDC/2003-38
TO DEVELOPER:
Tri Palm c.Drpot"'~iC>1I\
40980 County Center Drive, Suite 223
Temecula, California 92591
Attn: Richard D. Anderson, Chief()'e,....ItlJeOfficer
(909) 308-6460
TO AGENCY:
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 9240 I
Attn: Executive Director
(909) 663-1044
17. Acceptance of Ag:reement by the Developer.
The Developer shall acknowledge its acceptance of this Agreement by delivering three
(3) counterpart executed copies of this Agreement signed by at least two (2) authorized officers
of the Developer. The delivery by the Developer to the Agency of the executed counterpart
copies of this Agreement shall be completed within thirty (30) 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.
18. Authority.
Each signatory to this Agreement represents and warrants that he or she has the authority
to execute this Agreement on behalf of the principal whom he or she purports to represent.
19. Optional Termination by Developer or by Ag:ency.
a. Provided the Developer is not in default, the Developer may in its sole and
absolute discretion exercise an election to suspend the Project in the Study Area, and this
Agreement shall terminate and the parties shall be mutually released from any further obligations
hereunder; provided that the Developer gives forty-five (45) days written notice to the Agency.
b. Provided the Agency is not in default, the Agency may in its sole and absolute
discretion exercise an election to suspend the Project in the Study Area, and this Agreement shall
terminate and the parties shall be mutually released from any further obligation hereunder forty-
five (45) days following written notice to the Developer.
20. Defaults and Breach - General.
Failure or delay by either party to perform any material term or proVIsIOn of this
Agreement 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
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CDC/2003-38
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 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
other appropriate remedy by initiating legal proceedings. The private 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 thirty (30) days following the date of
service of the notice of termination on the other party.
21. Governinl!: Law: Venue.
The parties hereto acknowledge that this Agreement has been negotiated and entered into
in California. The parties hereto expressly agree that this Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the State of
California. Further, the parties to this Agreement hereby agree that any legal actions arising
from this Agreement shall be filed in California Superior Court, in the Court of San Bernardino,
Central District.
22. Partial Invaliditv.
If any term, provision or portion of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision or portion thereof to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each such term and provision of this Agreement shall be valid and enforced
to the fullest extent permitted by law.
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CDC/2003-38
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 Exhibits "A" through "D" attached hereto) is the final
expression of, and contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This Agreement may
not be modified, changed, supplemented or terminated, nor may any obligations hereunder be
waived, except by written instrument signed by the party to be charged or by its agent duly
authorized in writing or as otherwise expressly permitted herein. This Agreement may be
executed in one or more counterparts, each of which shall be an original, and all of which
together shall constitute a single instrument.
26. Time of Essence.
Time is strictly of the essence with respect to each and every term, condition, obligation
and provision hereof and that failure to timely perform any of the terms, conditions, obligations
or provisions hereof by either party shall constitute a material breach of and a non-curable (but
waivable) default under this Agreement by the party so failing to perform.
27. Construction.
Headings at the beginning of each section, paragraph and subparagraph are solely for the
convenience of the parties and are not a part of this Agreement. Whenever required by the
context of this Agreement, the singular shall include the plural and the masculine shall include
the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by
one of the parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to sections are to this Agreement. All exhibits referred to in this
Agreement are attached hereto and incorporated herein by this reference.
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CDC/2003-38
IN WITNESS WHEREOF, Tri Palm Development, Inc. and the Redevelopment Agency
of the City of San Bernardino execute this Redevelopment Project Study and Redevelopment
Assistance Agreement on the dates indicated next to each of the signatures of their authorized
representatives as appear below.
DEVELOPER
Tri Palm c.O'rVOV-~l' 0 v'\
a Cd~l U>t.p1Jr~tidJrJ
,
Dated: I ailS/a '3
,
Dated:/o/>sk ...3
,
By: fi~cr<<~a~~""
64u.e(('i /.... A'1~t/15.iJ'11 5ec/J"ir-M5-
AGENCY
Redevelopment Agency of the City of San
Bo"""dino j;,
B;m~
(.A..-1 Gary Van Osdel
: I I Executive Director
Date:
APPROVED AS TO FORM:
J
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CDCj2003-38
EXHIBIT "A"
Agency Property
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Q
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Legend:
5th Street
- . . - Mt. Vernon Corridor Project Area
Agency Property
Proposed Project Site Phase 1
Proposed Project Site Phase 2
APN: 138-114-18 Agency Owned
I
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"AGENCY
PROPERTY"
Exhibit IIAII
November 3, 2003
CDC/2003-38
EXHIBIT "B"
Private Property
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Legend:
I
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!.___________:::I
5th Street
- . . - Mt. Vernon Corridor Project Area
r------i
I I Private Property
-------...
Proposed Project Site Phase 1
APN: 138-115-02 138-115-04 138-115-06 138-114-09
138-115-03 138-115-05 138-115-07 138-114-10
Proposed Project Site Phase 2 138-114-11
APN: 138-114-09 138-114-10 138-114-11
I
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"PRIVATE
PROPERTY"
Exhibit "B"
November 3, 2003
CDC/2003-38
EXHIBIT "C"
Map of Study Area
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______________:.1
Legend:
5th Street
_ . . _ Mt. Vernon Corridor Project Area
r--------.
I I Study Area
I._______.J
Proposed Project Site Phase 1
Proposed Project Site Phase 2
APN: 138-114-18 Agency Owned
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II STU DY
AREAII
Exhibit "e"
November 3, 2003
CDC/2003-38
EXHIBIT "DOl
Description of Proiect
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