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HomeMy WebLinkAboutCDC/2004-24 RESOLUTION NO. CDCj2004-24 2 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO (1) CONSENTING TO AND APPROVING THE ASSIGNMENT OF THE BP CALIFORNIA 2002 PROPERTY OWNER REDEVELOPMENT AGREEMENT TO ECOM SUMMIT, LLC, A DELAWARE CORPORATION AND (2) AMENDING AND REINSTATING SAID 2002 PROPERTY OWNER REDEVELOPMENT AGREEMENT OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE SAID AGREEMENT (NORTHEAST CORNER OF WATERMAN AVENUE AND VANDERBILT WAY - TRI-CITY REDEVELOPMENT PROJECT AREA) 4 5 6 7 8 9 10 11 WHEREAS, on October 7, 2002, the Community Development Commission approved the 2002 Property Owner Redevelopment Agreement (the "Agreement") by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and BP California, a 12 13 14 California Corporation ("Property Owner") for the purpose of assisting the Property Owner in mitigating certain environmental and blighted conditions found on the old landfill ("Remediation Project") property located at the northeast comer of Waterman Avenue and 15 16 17 Vanderbilt Way, San Bernardino, California ("Property") within the Tri-City Redevelopment Project Area (the "Redevelopment Plan"); and 18 19 WHEREAS, the Property Owner began the Remediation Project as defined in the Agreement and discovered additional waste beyond that which was expected on the Property 20 21 and was required to prepare a new Remediation Plan and resubmit said new Remediation Plan 22 to the Regional Water Quality Control Board for approval before further remediation work on 23 the Property could begin; and 24 WHEREAS, as a result of these unforeseen circumstances, delays have occurred beyond the control of the Property Owner and the Property Owner was unable to complete the 25 Remediation Work by June 30, 2004 as provided in the Agreement and thus, the Property -1- P:\Agendas\Resolutlons\Resolutlons\2004\04-07-19 BP California Agr CDC Reso.doc CDC/2004-24 Owner has requested that the Agency amend and reinstate the Agreement and extend the 2 completion date for the Remediation Work to November 1,2004; and 3 WHEREAS, the Agreement was previously assigned by BP California to ECOM 4 Summit, LLC, a Delaware corporation, and a request was made to the Agency for the approval 5 of said assignment. 6 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 7 8 9 Section 1. The above recitals are true and correct. Section 2. The Community Development Commission hereby consents to and 10 11 approves the assignment of the BP California 2002 Property Owner Redevelopment Agreement to ECOM Summit, LLC, a Delaware corporation ("New Property Owner"). 12 Section 3. The Community Development Commission hereby approves the 13 Amended and Reinstated Property Owner Redevelopment Agreement with the New Property 14 Owner. 15 Section 4. The Executive Director of the Agency is hereby authorized to execute the 16 Agreement on behalf of the Agency in substantially the form attached hereto, together with such 17 technical and conforming changes therein as may be approved by the Executive Director and 18 Agency Counsel. Section 5. The Resolution shall become effective immediately upon its adoption. 19 20 /II /II /II /II /II /II 21 22 23 24 25 -2- P:\Agendas\Resolutions\Resolutlons\2004\04-07-19 BP California Agr CDC Reso.doc CDC/2004-24 2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO (1) CONSENTING TO AND APPROVING THE ASSIGNMENT OF THE BP CALIFORNIA 2002 PROPERTY OWNER REDEVELOPMENT AGREEMENT TO ECOM SUMMIT, LLC, A DELA WARE CORPORATION AND (2) AMENDING AND REINSTATING SAID 2002 PROPERTY OWNER REDEVELOPMENT AGREEMENT OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE SAID AGREEMENT (NORTHEAST CORNER OF WATERMAN AVENUE AND VANDERBILT WAY - TRI-CITY REDEVELOPMENT PROJECT AREA) 3 4 5 6 7 8 9 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 10 Community Development Commission of the City of San Bernardino at a j t. reg. meeting 11 thereof, held on the 19th day of July , 2004, by the following vote to wit: 12 Commission Members: Ayes Nays ESTRADA x - LONGVILLE ---X- MCGINNIS ---X- DERRY x - KELLEY x - JOHNSON x MC CAMMACK x Abstain Absent 13 14 15 16 17 fiLZ/ S'ecret7 I The foregoing resolution is hereby approved this dJ I'd day of July ,2004. ~~~~ Esther Estrada, Vice-Chairperson Community Development Commission City of San Bernardino 18 19 20 21 22 23 24 25 By: ,__ -3- P:\Agendll5\Resolutlons\Resolutions\2004\04-07_19 DP CaUfomla Agr CDC Reso.doc CDC/2004-24 AMENDMENT TO THAT CERTAIN 2002 PROPERTY OWNER REDEVELOPMENT AGREEMENT (BP California) CONSTITUTING AN AMENDED AND RESTATED AGREEMENT This Amendment to that certain 2002 Property Owner Redevelopment Agreement dated as of September 23, 2002 (the "Agreement"), by and between BP California, a California Corporation, as assigned to ECOM Summit, LLC, a Delaware corporation (the "Property Owner"), and the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic (the "Agency"), shall constitute an Amended and Restated Agreement by and between the Property Owner and the Agency as of July 1, 2004, and is entered into with respect to the following facts: RECITALS The Property Owner has discovered contaminants and other debris and buried materials on the Property that was not contemplated as of the date of the Agreement, and the Property Owner has been significantly delayed in obtaining all necessary governmental pemJ1l:, .Uld approvals as required to commence the excavation of the debris and other buried materials to remediate the site for environmental compliance purposes as part of the Remediation Project as defined in the Agreement. The Property Owner has only recently requested that the Agency consider an amendment to certain dates contained in the Agreement which if certain conditions are not met on or before said dates, the Agreement will automatically terminate pursuant to its terms. The Agency is willing to consider the extension of the termination date of the Agreement and the continuation of the effectiveness of the Agreement in the form of the Amended and Restated Agreement provided that certain insurance provisions and other indemnification and hold harmless provisions remain in full force and effect during all relevant times as further provided in this Amendment. The Agreement was previously assigned by BP California to ECOM Summit, LLC, and a request was made to the Agency for the approval of said assignment. The Agency duly approved and consented to such assignment through the official action of the governing body of the Agency at the time of the approval of this Amendment. The Agency desires that the dates as hereinafter set forth be modified to a termination date that is realistic under the circumstances and which affords the Property Owner additional time to perform the remediation and excavation of the Property in preparation for the development of the project as contemplated in the Agreement after completion of the Remediation Project as defined in the Agreement. 1 P:\Agendas\Agreements.Amendments\Agrmts.Amend 2004\04..07-19 BP California AR Agr.doc CDC/2004-24 NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS OF THE PARTIES SET FORTH IN THIS AMENDMENT, THE PROPERTY OWNER FOR ITSELF AND, TO THE EXTENT PROVIDED IN THIS AMENDMENT AND THE AGREEMENT, FOR ITS SUCCESSORS AND ASSIGNS AND THE AGENCY FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY AGREE, AS FOLLOWS: Section 1. Effective Date of Amendment. Subject to the provisions of Section 3(b) hereof, this Amendment shall take effect as of the date of adoption by the Community Development Commission of the City of San Bernardino, as the governing body of the Agency. The Agreement shall be deemed to have been modified by the change in the termination date of the Agreement as further provided in Section 2 hereof so that the Agreement, together with this Amendment, shall constitute the Amended and Restated Agreement by and between the parties the same as though the date set forth in Section 2 had been modified prior to and not subsequent to the previously stated termination date of the Agreement. It is the intent of the parties that the Agreement, as amended by this Amendment, shall continue to be in full force and effect as the Amended and Restated Agreement of the parties without any termination of the Agreement. Section 2. Specific Date Changes. The date of "June 30, 2004" shall be replaced with the date of "November 1, 2004" in the following specified sections of the Agreement: Section 2.(b); Section 5.(c); and Section 8.(e). Section 3. Effect of Amendment and Intemretation. (a) The parties agree that notwithstanding the provisions of Section 8.(e) of the Agreement providing for the automatic termination of the Agreement, whether or not the Agreement did in fact terminate pursuant to its terms, the parties by the approval and execution of this Amendment, intend that the Agreement shall remain in full force and effect with the modified date for termination as set forth in Section 2 above subject to the provisions of subsection (b) below. (b) The provisions of this Amendment and the continued effectiveness of the Agreement, in the form as intended to be continued as the Amended and Restated Agreement, shall be expressly contingent upon the Property Owner continuously maintaining (i) all indemnification and hold harmless provisions in favor of the Agency as set forth in the Agreement, and (ii) all insurance coverages as required by Section 25 and any other Sections of the Agreement. Furthermore, all such items specified in (i) and (ii) above shall be the obligation of the Property Owner to have maintained in full force and effect continuously from and after June 30, 2004, for the provisions of this Amendment to be effective. Failure of the Property Owner to comply with any of said provisions shall thereupon cause this Amendment to be null and void immediately upon delivery of notice by the Agency to the Property Owner, and the Agreement shall thereupon be deemed to have terminated on June 30, 2004. 2 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-07-19 BP California AR Agr.doc CDC/2004-24 THIS AMENDED AND REST A TED AGREEMENT is dated as of July I, 2004, and is executed by the authorized officers of the Property Owner and the Agency, as evidenced by the signatures of each of them appearing below. PROPERTY OWNER Dated: 7/02 rit} 'I ECOM Summit, LLC, a Delaware corporation ~~. JlLa~L AGENCY Dated: ~ ht>/tn/ / I . By: Agency Counsel 3 P:\Agcnctas\Agreemcnts-Amcndmcnts\Agrmts.Amcnd 2004\04-07-19 BP California AR Agr.doc