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HomeMy WebLinkAboutCDC/2003-46 RESOLUTION NO. CDC/2003-46 2 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. 2 TO THE DISPOSITION AND DEVELOPMENT AGREEMENT, DATED AS OF MAY 21, 2001, AS AMENDED, BY AND BETWEEN THE AGENCY AND SBT PARTNERS, LLC 4 5 6 7 WHEREAS, the Inland Valley Development Agency (the "IVDA"), the City of San 8 Bernardino (the "City") and the Redevelopment Agency of the City of San Bernardino (the 9 "Agency") have previously entered into an agreement entitled "1999 Redevelopment 10 Cooperation Agreement," dated as of July 12, 1999, pursuant to which the IVDA, the City and 11 the Agency have initiated the redevelopment of a potion of the Project Area referred to in the 12 1999 Redevelopment Cooperation Agreement as the "Agency Implementation Area" and which 13 area has since been referred to by the Agency as the "HUB Project"; and 14 WHEREAS, the IVDA has previously designated the City to serve as the "lead agency" 15 as this term is defined in the California Environmental Quality Act of 1970, as amended, 16 ("CEQA") for the purpose of conducting an environmental review of the HUB Project; and 17 WHEREAS, the City has certified a Final Environmental Impact Report as of May 21, 18 2001 (the "FEIR") for the HUB Project, in accordance with CEQA; and 19 WHEREAS, the HUB Project, as analyzed in the FEIR includes the following key 20 elements: 21 (i) the realignment and construction of a new public street improvement 22 project referred to in the FEIR as the Harriman Place Improvement Project; 23 (ii) the assembly and acquisition of public street right-of-way for the 24 Harriman Place Improvement Project; 25 / / / -1- P:\Agendas\Resolutlons\Resolutlons\2003\03-12-1S HUB DDA Amend No 2 CDC Reso,doc CDC/2003-46 2 (iii) the assembly of land for the redevelopment of a new commercial retail shopping center to be undertaken by SBT Partners, LLC, a California limited liability company (the "Developer") the Developer; and WHEREAS, the Agency has previously approved and executed the Disposition and Development Agency, dated as of May 21,2001, (the "HUB Project DDA") by and between the 3 4 5 6 Developer and the Agency; and WHEREAS, the Agency and the Developer seek to facilitate permanent development financing by providing Certificates of Completion as individual retail buildings are completed. 7 8 9 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 10 11 Section 1. The Commission as the governing board of the Agency hereby finds that 12 13 the technical modifications to the proposed uses and financing for the HUB Project, as approved by the adoption of this Resolution, do not have any significant environmental impacts and do not constitute any material change to the elements of the HUB Project analyzed in the FEIR for 14 15 the HUB Project. Accordingly no further consideration under CEQA is required for the HUB 16 Project or the FEIR at this time. 17 Section 2. The Agency hereby approves Amendment No. 2 to the HUB Project 18 DDA in the form as on file with the Agency Secretary. The Executive Director of the Agency is hereby authorized and directed to execute Amendment No.2 to the HUB Project DDA on 19 20 behalf of the Agency. 21 The Resolution shall become effective immediately upon its adoption. Section 3. 22 / / / 23 / / / 24 / / / 25 / / / -2- P:\Agendas\Resolutions\Resolutions\2003\03-12-15 HUB DDA Amend No 2 CDC Reso.doc 2 3 4 5 CDC/2003-46 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. 2 TO THE DISPOSITION AND DEVELOPMENT AGREEMENT, DATED AS OF MAY 21, 2001, AS AMENDED, BY AND BETWEEN THE AGENCY AND SBT PARTNERS, LLC I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 6 Community Development Commission of the City of San Bernardino at a j t. reg. meeting 20 21 22 23 24 25 Ju' alles, Chairperson munity Development Commission the City of San Bernardino By: -3- P:\Agendas\Resolutlons\Resolutlons\2003\03-12-15 HUB DDA Amend No 2 CDC Reso.doc CDC/2003-46 AMENDMENT NO.2 TO DISPOSITION AND DEVELOPMENT AGREEMENT (TIPPECANOE STUDY AREA: HUB PROJECT) THIS AMENDMENT NO. 2 TO DISPOSITION AND DEVELOPMENT AGREEMENT ("Amendment No.2") is dated as of September 2, 2003, by and between SBT Partners, LLC, a California limited partnership (the "Developer") and the Redevelopment Agency of the City of San Bernardino (the "Agency") and is entered into in light of the following facts: -- RECITALS -- WHEREAS, the parties to this Amendment No. 2 have previously entered into that certain Disposition and Development Agreement, dated as of May 21, 2001, as amended by Amendment No.1, dated as of April 1, 2002 (herein, the "Agreement"); and WHEREAS, the parties wish to acknowledge their mutual acceptance of certain technical modifications to the Agreement in view of the present status of the efforts of the Agency, in cooperation with the Inland Valley Development Agency (the "IVDA") to assemble the lands included in the "Phase II Site", as this term is defined in the Agreement, and in view of the present status of the efforts of the Developer to cause the redevelopment of the "New Store" on the "Phase I Site", as these terms are defined in the Agreement, to be completed. NOW THEREFORE THE DEVELOPER AND THE AGENCY DO HEREBY AGREE AS FOLLOWS: Section 1. Unless the context of the usage of a particular word or phrase may otherwise require, words and phrases used in this Amendment No. 2 shall have the same meaning as set forth in the Agreement. Section 2. The parties hereby acknowledge and agree that as of the date on which this Amendment No. 2 has been fully executed by the parties, that no breach or default exists under the Agreement and that the Agreement is in full force and effect. Section 3. The Schedule of Performance (Attachment No.6 to the Agreement) for the Phase I Project is hereby amended by the annexation and incorporation into such Schedule of Performance a schedule for the redevelopment of the Phase II Project in the form attached to this Amendment No.2 as Exhibit "A" and incorporated herein by this reference. Section 4. Section 3.7 of the Agreement is hereby amended to read as follows: "SECTION 3.7 Certificate of Completion. (a) Upon substantial completion of the relevant phases of the Project, the Executive Director of the Agency shall prepare a Certificate of Completion substantially 4827-5660-2624.2 12/9/034:00 jrnrn 1 CDC/2003-46 in the form of Attachment No. 11, within thirty (30) days following receipt by the Executive Director of the Agency of a written request therefore by the Developer. Upon the request of the Developer, the Executive Director of the Agency shall issue one or more Certificates of Completion when the Developer has completed (or caused third party tenants to so complete) the improvements as follows: (i) upon completion of the New Store for the parcel included in the Phase I Site on which the New Store is situated; (ii) upon completion of the other portions of the Phase I or Phase II Site; for each parcel on which a structure has been substantially completed, provided that the New Store has been completed under (i), above. The word "parcel" as used in the preceding paragraph, means and refers to a parcel of land created by a [mal subdivision or parcel map of the Phase I Site and/or the Phase II Site or portions thereof as applicable following the close of the Site Transfer Escrow for the Phase I Site and/or the Site Transfer Escrow for the Phase II Site, as applicable, which the Developer shall have caused to be recorded for the portion of the Phase I Project and/or Phase II Project for which such a Certificate of Completion may be requested. The Certificate of Completion shall evidence a conclusive determination by the Agency of satisfactory completion of the improvement of the Projects, as applicable, by the Developer. After the recordation of the Certificate of Completion by the Agency, neither the Developer, nor any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Developer Lands shall (because of such ownership, purchase, lease or acquisition) have any further obligation or liability under this Agreement for matters arising prior to the date of recordation of the Certificate of Completion or thereafter; provided however, that the covenants contained in Section 4.1 through Section 4.4, shall bind each successor in interest of the Developer in the portions of the Phase I Site and/or the Phase II Site, as applicable, as covenants which run with the land. (b) If the Executive Director of the Agency seeks to withhold the execution of Certificate of Completion, then the Executive Director of the Agency shall, within said thirty (30) days of the date of the written request for the issuance of a Certificate of Completion provide to the Developer a written statement setting forth the reasons with respect to the Executive Director's refusal or failure to prepare and execute a Certificate of Completion. The statement shall also contain a detailed description of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to minor building "punch list" items, the Executive Director of the Agency shall issue a Certificate of Completion conditioned upon the delivery of cash or other reasonably acceptable surety in an amount and terms subject to the reasonable approval of the Executive Director. 4827-5660-2624.2 12/9/034:00 jrnm 2 No such Certificate of Completion of the Agency shall be deemed to constitute a notice of completion as referred to in Section 3093 of the California Civil Code." Section 5. The form of the Certificate of Completion as referenced in Section 3.7 of the Agreement, as amended by Section 4 of this Amendment No.2, is attached hereto as Exhibit "B". Section 6. Upon the mutual execution of this Amendment No.2, the Agreement, as hereby amended shall be in full force and effect. This Amendment No.2 may be executed by the parties in counterparts and when fully executed, each counterpart shall be deemed to be part of one original instrument. DEVELOPER Date: SBT Partners, LLC, a California limited liability company BY_~ Stephen C. Hopkins Its: Partner ~ AGENCY Date: /-z/;~/t'J / By: 4827-5660-2624.2 12/9/034:00jmm 3 CDC/2003-46 EXHillIT "A" SUPPLEMENT TO CERTIFICATE OF COMPLETION FOR THE PHASE II PROJECT 4827-5660-2624.2 12/9/03 4:00 jrnrn 4 CDCj2003-46 SCHEDULE OF PERFORMANCE PHASE II Item: Description Due Date Developer submit plans to DRC for DPII hearing 45 days after all property transferred to Developer 2 Developer commence working drawings 10 days after DRC appeal period terminates 3 Developer submit Phase 2 site improvement plans for Plan Check 60 days after commencement of working drawings 4 Developer commence Phase 2 site improvements 10 days after issuance of permits 5 Completion of site work improvements 120 days after commencement of site work 6 Opening of Phase II for retail operations 270 days after commencement of site work EXHIBIT "A" 4827-5660-2624.2 12/9/034:00 jrnm CDC/2003-46 EXHIBIT "B" GENERAL FORM OF CERTIFICATE OF COMPLETION 5 CDC/2003-46 Attachment No. 11 [General Form - Specific From Subject to Developer's Completed Redevelopment of Specific Parcel in Either Phase I Site or Phase II Site, As Applicable] RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Redevelopment Agency of the City of San Bernardino Attn: Executive Director 201 North "E" Street Suite 301 San Bernardino, California 92401 SPACE ABOVE LINE IS FOR RECORDER'S USE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO CERTIFICATE OF COMPLETION (HUB PROJECT) The undersigned officer of the Redevelopment Agency of the City of San Bernardino (the "Agency"), hereby certifies as follows: Section 1. Pursuant to that certain Disposition and Development Agreement dated as of May 21, 2001, as amended (the "Agreement") by and between SBT Partners, LLC, a California limited liability company (the "Developer") and the Agency, the Developer agreed to undertake the redevelopment of certain real property situated in the City of San Bernardino, California, as more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Parcel"). Capitalized terms used and not otherwise defined herein shall have the meanings set forth for them in the Agreement. Section 2. The Agency has conclusively determined that the redevelopment of the Parcel, as required under the Agreement has been fully and satisfactorily performed and completed, excluding any normal and minor building "Punchlist" items. Section 3. This Certificate of Completion shall constitute the Agency's conclusive determination of the Developer's full and satisfactory completion of the redevelopment and improvement of the Parcel in accordance with the terms and conditions of the Agreement and the Developer's full and satisfactory performance of all of its obligations under this Agreement with respect to the Parcel, including without limitation any and all buildings and any and all parking, 4845-9934-9760.1 1 CDCj2003-46 landscaping and related improvements necessary to support the use of the Parcel or which meet the requirements applicable to such buildings and improvements on the Parcel. Section 4. This Certificate of Completion does not affect any other parcel of land in the Project and is specific to the Parcel, only. Section 5. This Certificate of Completion shall not modify or affect any of the provisions in that certain Quitclaim Deed, dated , 200_, executed by the Agency in favor of the Developer, and recorded on , 2002_ as Instrument No. in the Official Records of San Bernardino County, California. IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion on ,200_, AGENCY Redevelopment Agency of the City of San Bernardino, a body corporate and politic By: Executive Director APPROVED AS TO FORM: By: Agency Counsel 4845-9934-9760.1 2