Loading...
HomeMy WebLinkAboutCDC/2004-23 RESOLUTION NO. CDC/2004-23 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 THE REDEVELOPMENT PROJECT STUDY AGREEMENT AND REDEVELOPMENT ASSISTANCE WITH MILL STREET DEVELOPMENT LLC ("DEVELOPER") - CENTRAL CITY SOUTH REDEVELOPMENT PROJECT AREA 4 5 6 7 8 WHEREAS, the Agency owns certain property within the Central City South 9 Redevelopment Project Area" ("Project Area") as generally depicted in Exhibit "A" (the "Agency Property"); and WHEREAS, the Developer owns certain property ("Private Property") and third parties own certain property ("Other Properties") as generally depicted in Exhibit "A" ("Other Private Property"); and 10 11 12 13 14 WHEREAS, the Agency is prepared to consider and study the provision of certain redevelopment assistance to Mill Street Development LLC (the "Developer") to facilitate the assembly of the Agency Property, Private Property and Other Properties into developable parcels of land so as to foster the community economic development goals and objectives of the City of San Bernardino (the "City") as it relates to the redevelopment plan for the Project Area and the .Agency has designated for such study purposes, the land included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "A" (the "Study Area") for such study; and WHEREAS, the Study Area includes both the Agency Property, Private Property and 15 16 17 18 19 20 21 22 Other Properties; and 23 WHEREAS, the Agency intends to initiate certain additional studies and proposals to 24 address a number of issues of community concern in the Study Area relating to elimination and 25 prevention of the spread of blight from the Study Area; and -1- P:\CDBG Dept\Maggie\Draft Docs\04-07-06 Mill St Dev Agrmnt CDC Reso ver MP.doc CDC/2004-23 WHEREAS, the Developer is qualified to assist the Agency to undertake the study of 2 specific proposals and plans for a coordinated and economically sustainable redevelopment 3 project in the Study Area, which will require specific study, evaluation, and planning by the City and Agency, as applicable, of appropriate and feasible community redevelopment program 4 5 alternatives; and 6 WHEREAS, in accordance with the provisions of the California Environmental Quality Act (CEQA), a redevelopment study agreement is exempt from the provisions of CEQA. 7 8 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 9 10 Section 1. The Community Development Commission hereby authorizes and 11 12 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 13 14 technical and conforming changes as recommended by the Executive Director and approved by 15 the Agency Counsel. Section 2. The Resolution shall become effective immediately upon its adoption. 16 17 /II 18 /II 19 /II 20 /II 21 /II 22 /II 23 /II 24 25 /II -2- P:\CDBG Dept\Maggle\Draft Docs\04.07-06 Mill St Dev Agrmnt CDC Rem ver MP.doc CDC/2004-23 2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AGREEMENT AND REDEVELOPMENT ASSISTANCE WITH MILL STREET DEVELOPMENT LLC ("DEVELOPER") - CENTRAL CITY SOUTH REDEVELOPMENT PROJECT AREA 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 7 Community Development Commission of the City of San Bernardino at a j t. reg. meeting 8 thereof, held on the 19th day of July 9 Commission Members: Ayes Navs 10 ESTRADA X - LONGVILLE X 11 MCGINNIS X 12 DERRY X - 13 KELLEY X - 14 JOHNSON X - 15 MC CAMMACK X 16 , 2004, by the following vote to wit: Abstain Absent 17 d - :Ii L k:r/ ~crr / /\., "d The foregoing resolution is hereby approved this dO' day of July ,2004. 18 23 By: ~7~ Esther Estrada, Vice-Chairperson Community Development Commission 1 City of San Bernardino 19 20 21 22 Approved a 24 25 -3- P:\COBG Dept\Maggle\Draft Docs\04-07-06 Mill St Dev Agrmnt CDC Reso ver MP.doc i I = ~ i i I i f/2004-~3 .. NORTH Not to Scale ~IIIIIIIIIIIIIIIIIIIIIIIII~ ~"""""""""""""""",,8 ~111111111111111111111111111,a a; l!! in Cl ~::=: fttttttttttt1tt fttttttttttt1tt fttttttttttt1tt fttttttttttt1tt fttttttttttt1tt fttttttttttt1tt a; l!! in w I ....... : : Study Area ....... _ Agency Property _1 Developer Property MillSlreel EXHIBIT "A" CDC/2004-23 THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT (MILL STREET DEVELOPMENT LLC: CENTRAL CITY SOUTH REDEVELOPMENT PROJECT) REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT, is dated as of July 19, 2004 (the "Agreement"), and is entered into by and between MILL STREET DEVELOPMENT, LLC, (the "Developer") and the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body corporate and politic (the "Agency"), in light of the facts set forth in the following recital paragraphs: RECITALS As of the "Effective Date", as this term is defined in Section 3.a. and provided that this Agreement is executed in the manner and within the time limit as set forth in Section 17, the Agency has acquired and owns certain lands as generally depicted in Exhibit "A" (the "Agency Property" as noted thereon); and The Agency Property is situated in an area which is referred to as the "Central City South Redevelopment Project Area" and as of the Effective Date, the Developer and other third parties own certain lands which are adjacent to or in proximity to the Agency Property as generally depicted in Exhibit "A" (the "Private Property" as noted thereon as owned by either the Developer or other third parties); and The Agency is prepared to consider and study the provision of certain redevelopment assistance to the Developer to facilitate the assembly of the Private Property with the Agency Property into developable parcels of land so as to foster the community economic development goals and objectives of the City of San Bernardino (the "City") as related to the Central City South Redevelopment Project and the Agency has designated for such study purposes, the land included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "A" (the "Study Area" as noted thereon) for such study; and The Study Area includes both the Agency Property, the Private Property and other properties adjacent thereto as illustrated on Exhibit "A"; and The Agency intends to initiate certain additional studies and proposals to address a number of issues of community concern in the Study Area relating to elimination and prevention of the spread of blight from the Agency Property; and The Developer is qualified to assist the Agency to undertake the study of specific proposals and plans for a coordinated and economically sustainable redevelopment project on the 1 P;\Agendas\Agreements-Amcndmenls\Agrrnts~Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 Agency Property, which will require specific study, evaluation and planning by the City and Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; and Following the Effective Date, the Developer may at its sole discretion, but under no obligation to do so, acquire any or all of the Private Property in the Study Area on terms which are economically feasible for the Developer, and which are also acceptable to all interested persons; and The Developer and the Agency believe it is appropriate for the Agency, in consultation with the Developer, to undertake certain redevelopment studies and to incur certain costs, in consultation with the Developer, as part of a program for the study of feasible redevelopment programs for the Agency Property, subject to the terms and conditions as set forth below. NOW THEREFOR, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY AGREE, AS FOLLOWS: 1. Developer Acknowledl!:ements and Term of Al!:reement. a. The Developer hereby acknowledges and agrees that no provlSlon of this Agreement shall be deemed to be an offer by the Agency or an acceptance by the Agency of any offer or proposal from the Developer to convey any interest in the Agency Property or the Private Property to the Developer. Any studies relating to the Study Area, the Agency Pn"!<Tty or the Private Property, and the Project (as defined below) that may hereafter be undertaken by the Developer, in its sole discretion shall be the sole responsibility of the Developer and shall not be deemed to be undertaken for the benefit of the Agency and the City. b. The qualifications and identity of the Developer and its principals are of particular concern to the Agency. The Agency relied on these qualifications and identity in entering into this Agreement with the Developer. During the term of this Agreement, no voluntary or involuntary successor-in-interest of the Developer shall acquire any right or power under this Agreement except pursuant to an assignment approved by the Agency Executive Director as provided below. The Developer shall not assign all or any part of this Agreement, or any rights hereunder, without the prior written approval of the Agency Executive Director, which the Agency Executive Director may grant or refuse in his or her sole and absolute discretion. c. The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities and individuals either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its partners or officers have been notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change, whether voluntary or involuntary, in membership, ownership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved in writing by the Agency Executive Director, prior to the time of such change, the Agency may terminate this 2 P:\Agendas\Agreements-Amendments\Agnnts-Amend 2004\04-07-19 Mill Slreet Agml.doc CDC/2004-23 Agreement by serving written notice of such termination, referencing this Section, on the Developer. d. This Agreement shall automatically terminate, without further notice or action, and be of no further force or effect one-hundred eighty (180) days following the Effective Date, unless prior to that time: (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 Developer shall have the right to extend the term of this Agreement for an additional ninety (90) days upon written notice to the Agency delivered prior to any termination of this Agreement; provided, however, as a condition to such extension, the Developer shall have completed the project study as required by Section 3.b. and the economic feasibility study as required by Section 3.h.(1); or (3) the parties each agree to extend the term of this Agreement in writing to a specific date, subject to the Agency first making a finding based upon written documentation and other facts presented to verify that satisfactory progress is being made to complete the activities to be performed by the Developer set forth in Section 3; or (4) 20, as applicable. a party terminates this Agreement as provided under Section 19 or Section 2. The 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 development project as generally described as not less than a 60,000 square foot nor more than a 120,000 square foot two-story office building for accounting, billing and information services functions of companies together with on-site landscaping and parking for approximately 450 vehicles, and acquisition of other portions of the Private Property in the Study Area as necessary to provide for adequate ingress and egress to the Agency Property (the "Project"). 3. Nel!otiation Period. 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 one hundred eighty (180) days from the Effective Date unless such date shall have been first extended as authorized under Section l.d.(2) or (3). Such time period during which this Agreement shall be in effect 3 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 Mill Street Agml.doc CDC/2004-23 (including any extensions of time approved by the Agency) is referred to as the "Negotiation Period". b. Within ninety (90) days following the Effective Date, the Developer shall submit a site plan for the Agency Property to the Agency and the Agency and the Developer shall initiate the preparation of a feasibility study for the redevelopment project proposed by the Developer (the "Project Study"). The Agency may retain the services, but is under no obligation to do so, of a firm of community redevelopment planning and environmental consultants to assist in the preparation of the various investigations, surveys and reports appropriate in connection with the Project Study and the evaluation of the Project proposed by the Developer. On a best efforts basis, the Agency and Developer shall cause the initial phase of the Project Study as evidenced by the completion of an "Initial Study" as this term is defined under the California Environmental Quality Act ("CEQA") to be completed for the Project within ninety (90) days following the Effective Date at the sole cost of the Developer. The Initial Study may be prepared by either the Agency or the City as the "lead agency" as this term is defined in CEQA. Thereafter, provided the Developer has completed the studies described in Section 3.h.(I) and (2) in sufficient detail to be mutually acceptable to the Developer and the Agency and in the event the Initial Study discloses that the Project will have a significant effect on the environment that cannot be mitigated to a status that is less than significant, the Agency and Developer shall, on a best efforts basis, cause a draft environmental impact document for the Project to be circulated for public comment and review within sixty (60) days thereafter. Subject to the privilege of either party to suspend the Project Study prior to its completion as set forth in Section 19 each of the parties presently believes that the Project Study can be completed Within one hundred eighty (180) days following the Effective Date. c. The Developer may modify the description of the Project at any time; prm ideo however, that substantial modifications of the Project shall: (1) be subject to the acceptance and approval ofthe Agency; (2) depending on the nature of such a modification, a suitable modification of the environmental and other elements of the Project Study as modified, may also be indicated. The Agency may request that the Developer consider modifications to the description of the Project from time-to-time. Each such modification shall be subject to the reasonable approval of the Developer. d. The Agency shall on a best efforts basis during the course of the Project Study consider the specific terms and conditions of redevelopment assistance which the Developer may propose to include in the Project DDA; provided however the Agency reserves the sole and absolute discretion to accept, reject or modify any such proposed term or condition to the Project DDA in its sole discretion. 4 P:\Agendas\Agreements-Amendments\Agnnts-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 e. During the course of the Project Study, the Agency shall pay for any "Project Study Costs" and expenses of third party consultants who are engaged by the Agency under written contract to undertake one or more elements of the Project Study which the Agency at its sole discretion has elected to undertake. Project Study Costs do not include third party costs incurred by the Developer in connection with the preparation or submission of any information relating to the Project on which any element of the Project Study may be based, including civil engineering expenses, architectural fees, accounting fees and the like. Each party shall bear its own legal fees and costs in connection with the Project Study. f. All third-party consultants retained by the Agency to prepare any study or document as part of the Project Study shall be subject to the sole control and direction of the Agency. The work product of any such person shall be the property of the Agency and the Agency shall have the right to use and republish such work product for any purpose. g. Subject to the terms and conditions of this Agreement, the Developer and the Agency shall undertake an economic feasibility study of the Project as part of the Project Study consisting of the elements as set forth below: (1) preparation by the Developer in consultation with the Agency of a preliminary financial feasibility study/analysis for the development of the Project on the Study Area setting forth the plan for acquisition of the Private Property and the phasing of Project development, if any, and an estimate of development costs, including, without limitation, the following: (i) projections of debt and equity that can be drawn from the Project; and, (ii) projections of public (City, State, and federal) financial assistann: anticipated for the Project; and, (iii) projections of overall Project value and property taxes; and, (iv) projections of the costs and benefits to the City and the Agency for all construction, maintenance and operations of all proposed public improvements; and, (v) projections of the costs of additional or increased levels of public services; and, (vi) projections of any new public revenues anticipated to be generated by the project, by phase, if applicable, and upon completion of the Project. An initial draft of a document including the study elements identified in subparagraph (i) through (vi) above shall be completed by the Developer and submitted to the Agency within one hundred twenty (120) days following the Effective Date. Thereafter the 5 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 parties shall refine the draft document as submitted by the Developer in accordance with a schedule of refinement work for such studies to be mutually approved by the parties. (2) Prior to the time when the Initial Study is completed by the lead agency, the Developer in consultation with the Agency, shall have prepared a proposed conceptual development plan for the Project, to include, without limiting: (i) proposed zoning and General Plan changes, if any, necessary to accommodate the Project; and (ii) proposed time schedule and cost estimates for the development of proposed public and private infrastructure upgrades, proposed publicly owned facilities, public improvements, public infrastructure and private development; and (iii) proposed financing plan identifying the timing of receipt by the Developer and the Agency, as applicable, of the financing sources for all private and public improvements proposed in the Project, by phase, if applicable. The conceptual development plan for the Project as described above may be revised from time-to-time in accordance with a schedule of preparation and revisions as may bc mutually approved by the parties. h. The Developer shall inform the Agency in wntmg whether based on the information set forth in Section 3.h., the Developer believes that the Project is feasible prior to the time when the Agency shall cause a "Notice of Preparation" or a "Notice of Intention to Adopt a Negative Declaration" as these terms are defined in CEQA, as applicable to! 1<' circulated to interested person or responsible agencies for the Project. Thereafter, the Developcl and the Agency may proceed to negotiate the final form of an agreement for in which the specific terms for the redevelopment of the Property may be set forth on terms mutually acceptable to the parties (the "Project DDA"). i. The Developer shall submit each of the items of information described in this section to the Agency Executive Director, within the time periods set forth above. Within twenty (20) calendar days of receipt of any such information, the Agency Executive Director shall determine whether such information is satisfactory. If the specific item of information is unsatisfactory to the Agency Executive Director, he or she shall notify the Developer in writing of the reason(s) that the information is unsatisfactory. If the Agency Executive Director does not make a determination regarding any item of information submitted by the Developer under this Section 3, within twenty (20) calendar days of receipt of such information, the information shall be deemed submitted in acceptable form by the Agency. The determinations to be made by the Agency Executive Director under this subsection in no way bind or constitute the approval of the Agency regarding, without limitation, plans, specifications, engineering, architecture, uses, tenants, sale prices, rental rates, the Project or the Project DDA. 6 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 4. Oblil!ations of the Developer. During the Negotiation Period, the Developer shall proceed diligently and in good faith to perform the following: a. Consider the redevelopment of the Project, including without limitation the selection of tenants and the design of improvement elements as appropriate for the Project; b. Review and provide the Project Study information described in Section 3 and provide comments on draft versions of any CEQA document prepared as part of the Project Study and the Project DDA and, if acceptable to the Developer, submit an executed copy of the final form of the Project DDA to the Agency Executive Director on or before the end of the Negotiation Period (or such later date corresponding to an authorized extension of the Negotiation Period); and c. Consult with the Agency on a regular basis and keep the Agency advised on the progress of the Developer in completing its obligations under this Agreement; and d. In the event that following the Effective Date the Developer may at its sole discretion acquire any of the Private Property, the Developer shall not cause the displacement of any residential occupant or tenant in lawful possession of any such parcel of Private Property during the Negotiation Period without first obtaining the written consent ofthe Agency. 5. Al!encv Not to Nel!otiate with Others. a. The Agency, currently, deems the disposition and the redevelopment of the Agency Property for a feasible Project to be appropriate and the Developer appears to he well qualified to undertake the task of planning the details for the acquisition and development of the Agency Property. b. During the Negotiation Period, the Agency shall not negotiate with any other person or entity regarding either the disposition of any of the Agency Property, Private Property or the redevelopment of the Project. The term "negotiate", as used herein, shall be deemed to preclude the Agency from accepting any other offer or proposal from a third party to either acquire from the Agency any interest in the Agency Property or the Private Property (in whole or in part) or development of the Project in the Study Area, and from discussing other redevelopment proposals for the Study Area with third persons or entities; provided, however, any person may (i) submit and the Agency may consider any proposal for the disposition and/or redevelopment of lands adjacent to the Study Area and (ii) submit proposals to the Agency as a public agency with respect to the Agency Property provided that the Agency does not officially accept such proposal by the official action of the Agency governing board. c. During the Negotiation Period, the Agency may at its sole discretion, elect to acquire any Private Property as the Agency may deem appropriate on such terms and conditions as the Agency may approve. Nothing herein shall be deemed to be a commitment or understanding by the Agency to the Developer to acquire any such Private Property as may be 7 P:\Agendas\Agreements-Amendmenls\Agnnts-Amend 2004\04-07-19 Mill Street AgmLdoc CDC/2004-23 offered for sale or which otherwise may become available for acquisition during the Negotiation Period and the Agency shall not be deemed to have appropriated or made available any funds therefore. d. Notwithstanding any other provision of this Agreement, during the Negotiation Period, the Agency shall not be precluded from furnishing, to persons or entities unrelated to the Developer, information in the possession of the Agency relating to the redevelopment of any other land owned or controlled by the Agency in close proximity to the Agency Property. The Agency may also provide any other information in its possession that would customarily be furnished to persons requesting information from the Agency regarding the Agency Property and other Agency public information concerning its activities, goals and matters of a similar nature, or as required by law to be disclosed upon request. 6. Al!encv Cooperation. During the Negotiation Period the Agency shall: a. At the request of Developer, use its best efforts to assemble written materials and documents relating to the Agency Property and the Study Area that are in the possession of the Agency. b. Use its best efforts to provide appropriate comment to the Developer with respect to one or more conceptual development plans, as may be proposed by the Developer for the Project, and the redevelopment of the Study Area, including, but not limited to, conceptual plans or studies of vacation, realignment or abandonment of public property and facilities, the installation and improvement of public improvements and environmental evaluation of the Project. c. Use its best efforts to provide the Developer with limited access to the Agency Property, and or Study Area during the Negotiation Period, for the purpose of conducting customary due diligence investigations thereon, including environmental investigations of the subsurface or any structure thereon, subject to the terms and conditions of a separate environmental investigation and inspection license agreement to be agreed upon by the Agency and the Developer, at some later date, if applicable. d. Use its best efforts to provide Developer with information or copies of studies performed to be performed relative to the Study Area. 7. Nel!otiation of Proiect DDA. It is the intent of the parties that the Developer and the Agency will negotiate the final terms and conditions of a proposed Project DDA prior to the time that the studies and plans described above are being prepared and completed by the Developer provided that neither party has terminated this Agreement or the subsequent Project DDA. Such negotiations and drafting of the final Project DDA shall commence as soon as practicable after the date that this Agreement has been approved and accepted by the Commission. Notwithstanding such 8 P:\Agendas\Agreemems.Amendments\Agrmts-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 commitment of the Agency to negotiate the terms and conditions of the final Project DDA, nothing contained herein commits the Agency staff to recommend approval of any final form of a Project DDA presented for consideration by the Commission nor shall the Commission be committed to approve any final form of a Project DDA by reason of the execution of this Agreement or by reason of any other actions of the Agency, the Agency staff or the Commission prior to the conducting of a noticed public hearing on the consideration of the Project DDA in the manner as required by law. 8. Consideration for this Al!:reement and Reservation of Ril!:hts. In consideration for the Agency entering into this Agreement, the Developer will undertake its obligations under this Agreement and provide the Agency with copies of all studies and reports and other information generated by the Developer or its consultants regarding the Project. The parties agree that, if this Agreement terminates for any reason, the Agency fails to extend the Negotiation Period, or the Project DDA is not finally approved by the Agency, for any reason, neither party shall be under any further obligation to the other regarding the disposition, acquisition, reuse, redevelopment or development of the Agency Property. 9. Planninl!: and Desil!:n: Related Acknowledl!:ments 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 ofthe Project DDA, but it is understood by both parties that the Project and the redevelopment of the Agency Property must conform to City of San Bernardino development, design and architectural standards. The Agency shall fully cooperate with the Developer's professional associates in providing information and assistance in connection with the Developer's preparation of drawings, plans and specifications. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project, itself, by either the Agency or the City. 10. Developer Financial Disclosures. The Developer acknowledges that it may be requested to make certain confidential financial disclosures to the Agency, its staff or legal counsel, as part of the financial due diligence investigations of the Agency relating to the potential disposition of the Agency Property to the Developer. The parties recognize that such financial disclosures may contain sensitive information relating to other business transactions of the Developer, that the disclosure of such information to third parties could impose commercially unreasonable and/or anti- competitive burdens on the Developer and, correspondingly, diminish the value or fiscal benefit that may accrue to the Agency upon the disposition of the Agency Property to the Developer, if terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any business records described in Government Code Section 6254.15, as may be provided by the Developer to the Agency or its consultants, to the maximum extent permitted by law. The Agency shall not provide a copy of any business record protected from disclosure under Government Code Section 6254.15 to a third party, unless the Developer first consents to such disclosure in writing or, unless a court of competent jurisdiction compels disclosure. 9 P:\Agendas\Agreements.AmendmenlS\Agrmts.Amend 2004\04-07.19 Mill Street Agmt.doc CDC/2004-23 11. Developer Acquires No Interest in the Al!encv Property. The Developer hereby acknowledges that it has not acquired and will not acquire, by virtue of the terms of this Agreement, any legal or equitable interest in the Agency Property. 12. Nondiscrimination. The Developer shall not discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in undertaking its obligations under this Agreement. 13. Compliance with Law. The Developer acknowledges that the Project DDA, if mutually agreeable terms are established, is likely to require the Developer (among other things) to carry out the construction of certain improvements in conformity with all applicable laws, including all applicable planning and zoning laws, environmental planning and safety laws and federal and state labor and wage laws. 14. Required Approvals. No Project DDA between the parties shall have any force or effect nor shall the Agency be deemed to be a party to any agreement for the disposition of real or personal property to the Developer, until the terms and conditions of the Project DDA are considered and approved by the governing body of the Agency, following the conclusion of a public hearing, as required by law. 15. Press Releases. The Developer agrees to discuss any press releases it may propose relating to the Agency Property with the Agency Executive Director 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. 10 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 Mill Street AgmLdoc CDC/2004-23 TO DEVELOPER: Mill Street Development LLC 1806 Orange Tree Lane, Suite C Redlands, California 92374 Attn: Michael J. Lewin (909) 793-0200 TO AGENCY: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn: Executive Director (909) 663-1044 17. Acceptance of A2reement bv the Developer. The Developer shall acknowledge its acceptance of this Agreement by delivering three (3) counterpart executed copies of this Agreement either prior to or subsequent to the date uf consideration and approval of this Agreement by the Agency. In the event that the Agency has approved and executed this Agreement prior to the approval and execution by the Developer, the delivery by the Developer to the Agency of the executed counterpart copies of this Agrci'Fcnt duly executed by the Developer shall be completed within ten (10) days following the apf'ival of this Agreement by the governing board of the Agency or thereafter this Agreement shall have no further force and effect with respect to either party. As further set forth in Section 3.a. he', If the Effective Date of this Agreement shall be deemed to have occurred upon final approY::~ ,,;,' execution of this Agreement by the parties within the time period set forth above. 18. Authoritv. Each signatory to this Agreement represents and warrants that he or she has the authority to execute this Agreement on behalf of the principal whom he or she purports to represent. 19. Optional Termination bv Developer or bv A2encv. a. Provided the Developer is not in default, the Developer may in its sole and absolute discretion exercise an election to suspend the Project and this Agreement shall terminate and the parties shall be mutually released from any further obligations hereunder; provided that the Developer gives a twenty-one (21) day written notice to the Agency. b. Provided that the Developer is not then in default of any performance obligation as required by this Agreement, the Agency may not exercise an election to suspend the Project or to terminate this Agreement other than as provided in Section 20 hereof. 11 P;\Agendas\Agreements.Amendments\Agnnts-Amend 2004\04-07~19 Mill Street Agmt.doc CDC/2004-23 20. Defaults and Breach - General. Failure or delay by either party to perform any material term or provIsIOn of this Agreement shall constitute a default under this Agreement; provided however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within five (5) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured party shall have no right to exercise any remedy for a default as set forth herein without delivering the written default notice as specified herein. Any failure to delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with such a default. In the event that a default of either party may remain uncured for more than five (5) calendar days following written notice, as provided above, a "breach" shall be deemed to helve occurred. In the event of a breach, the party who is not in default shall be entitled to seek any other appropriate remedy by initiating legal proceedings. The prevailing party in any such It"'gal proceeding shall be entitled to recover its reasonable attorneys fees as an element of its damagl:s, either as part of such legal proceedings or in a separate legal action to recover such attorneys fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorney's fees." In the event that a breach has occurred under this Section 20, the party who is not then in default may terminate this Agreement by serving the other party with a written notice of termination, and thereafter the Agreement shall terminate ten (10) days following the date of service of the notice of termination on the other party. 21. Governin!! Law: Venue. The parties hereto acknowledge that this Agreement has been negotiated and executed in San Bernardino, California. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. Further, the parties to this Agreement hereby agree that any legal actions arising from this Agreement shall be filed in California Superior Court, in the County of San Bernardino, San Bernardino District. 22. Partial 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 12 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 Agreement, or the application of such term or provIsIon or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 23. No Intent to Create Third Party Beneficiaries. The parties intend that the rights and obligations under this Agreement shall benefit and burden only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or benefit of any third party, including any governmental agency, who is not one of the parties to this Agreement. 24. Waivers. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligation or act to be performed herein shall not be deemed to be an extension of the time for performance of any other obligation or act to be performed under this Agreement. 25. Entire Aereement. This Agreement (including Exhibit "A" attached hereto) is the final expression of, and contains the entire agreement between, the parties with respect to the subject matter hereof 'md 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 Wfltin4 m as otherwise expressly permitted herein. This Agreement may be executed in one or m\Ji e 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 13 P:\Agendas\Agreements-Amendments\Agnnls-Amend 2004\04-07-19 Mill Slreet Agmt.doc CDC/2004-23 indicated, all references to sections are to this Agreement. The Exhibit "A" referred to in this Agreement is attached hereto and incorporated herein by this reference. 28. ERN Fee. Concurrently with the execution and delivery of this Agreement by the undersigned parties, on the Effective Date, the Developer shall deliver to the Agency a check in the amount of $15,000 representing the Exclusive Right to Negotiate Fee (the "ERN Fee"). The ERN Fee is payable to the Agency as compensation for removing the Property from consideration by other prospective purchasers and to reimburse the Agency for the costs and expenses required for the preparation of this Agreement and the anticipated Project DDA. The ERN Fee is the property of the Agency on the Effective Date. In the event that a Project DDA may hereafter be approved and executed by the parties, the Agency shall pay the sum of Fifteen Thousand Dollars ($15,000) to the escrow holder identified in the Project DDA, for the account of the Developer (the "Developer Escrow Deposit"). The Developer Escrow Deposit shall be applied as a credit for the payment of a portion of the purchase price for the Property as may hereaftel be negotiated by the parties under the terms of this Agreement; provided however, that iftitlc to the Property does not transfer to the Developer for any reason, other than for a default by the Agency under the Project DDA, the Developer Escrow Deposit shall be released by the escrow holder and paid to the Agency upon the cancellation of the escrow established under the Prl*ct DDA. 14 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 IN WITNESS WHEREOF, Mill Street Development LLC and the Redevelopment Agency of the City of San Bernardino execute this Redevelopment Project Study and Redevelopment Assistance Agreement on the dates indicated next to each of the signatures of their authorized representatives as appear below. DEVELOPER Mill Street Development LLC Dated: -7- cf-5 -----,(77 AGENCY Dated: 7h6Ac/ ( I Redevelopment Agency of the City of San :~~~~/ Gary7an Osdel / E~utive Director 15 P:\Agcndas\Agrecments-Amcndmcnts\Agrmts-Amcnd 2004\04-07-19 MiJI Street Agmt.doc CDC/2004-23 EXHIBIT" A" A!!ency Property. Private Property and Study Area p:\Agcndas\Agreements-Amendments\Agrm1s-Amend 2004\04-07-19 Mill Street Agmt.doc CDC/2004-23 1IIIIIIil .... NORTH Not to Scale ~IIIIIIIIIIIIIIIIIIIIIIIII~ ~I 11111111111111 1111111111 II II 111118 (u 1111111111111111111111111111 L:J 1l ~ ;;; o "l1 o ~~~~ ~ ~ ~ ~ ~ ~ - .. ~ i .;) lJ .. .. ::. Ul CI ....... : : Study Area ....... _ Agency Property _ Developer Property Mill Street EXHIBIT "AII