HomeMy WebLinkAboutR30-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
ORIGINAL
DATE: February 28, 2006
SUBJECT: Redevelopment Project Stndy and
Redevelopment Assistance Agreement -
Anita's Restaurant and Bakery, Inc.
(Mount Vernon Corridor Redevelopment
Project Area)
FROM: Maggie Pacheco
Interim Executive Director
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SvnoDsis of Previous Commission/Council/Committee Action(s):
On February 21,2006, Redevelopment Committee Members Estrada, Longville and McGinnis unanimously voted to
recommend that the Community Development Commission consider this action for approval.
________________...__________u____________________________._.______________.__________________________________---------------------------------.---------------
Recommended Motion(s):
(Communitv Develooment Commission)
Resolution of the Community Development Commission of the City of San Bernardino approving and
authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino
("Agency") to execute the Redevelopment Project Study and Redevelopment Assistance Agreement
("Agreement") with Anita's Restaurant and Bakery, Inc. ("Developer") - Mount Vernon Corridor
Redevelopment Project Area
___________________..__________________....._______________h_________________._.___________________.____________------.-----------------------------------------------------------
Contact Person(s):
Maggie Pacheco
Mt. Vernon Corridor Redevelopment
Project Area
Phone:
(909) 663-1044
Project Area(s):
Ward(s):
Supporting Data Attached: Ii':! Staff Report Ii':! Resolution(s) Ii':! Agreement(s)/Contract(s) Ii':! Map(s) 0 Letters
FUNDING REQUIREMENTS: Amount: $
o
Source:
N/A
N/A
Budget Authority:
SIGNATURE:
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5~~a'. ~J>(/;;
Barbara Lindseth, Admin. Services Director
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P:\Agendas\Comm Dev Commission\CDC 2006\03-20-06 Anita's Restaurant and Bakery Sa,doc
COMMISSION MEETING AGENDA
Meeting Date: 03/20/2006
Agenda Item Number: ./J. 30
ECONOMIC DEVELOPMENT AGENCY
ST AFF REPORT
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REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE
AGREEMENT - ANITA'S RESTAURANT AND BAKERY, INC.
(MOUNT VERNON CORRIDOR REDEVELOPMENT PROJECT AREA)
BACKGROUND:
In March 2005, the Agency received a request from Anita's Restaurant and Bakery, Inc., (the
"Developer") for Agency assistance in acquiring two (2) vacant parcels on the northeast comer of
Mount Vernon Avenue and Vine Street, APN: 0139-291-60 and 61 (the "Property") in the Mount
Vernon Corridor Redevelopment Project Area. The Restaurant and Bakery are fast outgrowing their
present location at 739 North Mount Vernon Avenue and with three (3) years remaining on their lease,
the Developer was desirous of acquiring vacant land in the vicinity of the current operation with the
intent of doing a larger build to suit project better suited to their needs. The Developer had attempted
to communicate with the owners of record of the Property to no avail.
In April 2005, Agency Staff wrote to the owners of record of the two (2) parcels and were contacted by
the owners in May 2005. During this period, Agency Staff ascertained that there were $84,324.54
worth of outstanding liens against the Property for unpaid taxes and nuisance abatements. The owner's
representative indicated that the owners had no intention of paying this debt.
Agency Staff then contacted the County of San Bernardino Treasurer-Tax Collector to ascertain the
status ofthe Property and discovered it was about to be auctioned in a County Tax-Sale in September
2005.
In July 2005, Smothers Appraisal estimated the Property value at $190,000 or $6.00 per square foot.
On August I. 2005, the Community Development Commission authorized the Executive Director to
purchase the Property under the Chapter 8 Tax Default guidelines for the sum of $84,324.54 with the
intent or reselling the Property to the Developer for redevelopment once the Chapter 8 process was
concluded. The sale was approved by the County Board of Supervisors on August 30, 2005. The
Property was deeded to the Agency on December 12, 2005.
CURRENT ISSUE:
The Developer intends to acquire the Agency Property and construct an 8,000 square foot restaurant,
bakery and cake display area together with on site landscaping and parking (the "Project"). It is
desirous that the relationship with the Agency and Developer be memorialized in an agreement in
order for them to properly prepare the design work, pro forma projected costs, and projected time
frame for securing development entitlements. Thus, it is proposed that a Redevelopment Project Study
and Redevelopment Assistance Agreement by and between the Agency and the Developer (the
"Agreement") be prepared to facilitate the following:
I' \Agendas',Comm De\ Commissioll\CDC 2006\03":W-Ob Anita's Restaurant and Bakery SR doc
COMMISSION MEETING AGENDA
Meeting Date: 03/20/2006
Agenda Item Number:
Economic Development Agency Staff Report
Anita's Restaurant and Bakery ERN
Page 2
. Agency agrees not to undertake negotiations with other parties regarding the disposition of the
Property during the eighteen (18) month term of the Agreement, during which time the Agency
and Developer will study the feasibility of the Developer constructing the Project.
. Upon completion of the appropriate studies, the Agency will consider the sale of the Property
to the Developer subject to the approval of a Disposition and Development Agreement by the
Community Development Commission.
ENVIRONMENTAL IMPACT:
A project study agreement is exempt from the California Environment Quality Act (CEQA).
FISCAL IMP ACT:
There are no Agency direct costs associated with the Agreement other than administrative personnel
costs.
RECOMMENDA nON:
That the Community Development Commission adopt the attached Resolution.
/~
~v1 f~-
Maggie Pacheco, Interim Executive Director
P \Agendas\Comm Dev Commlsslon\CDC 2006\03-20-06 Anita's Restaurant and Bakery SR doc
COMMISSION MEETING AGENDA
Meeting Date: 03/20/2006
Agenda Item Number:
RESOLUTION NO.
2
3
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT
STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT
("AGREEMENT") WITH ANITA'S RESTAURANT AND BAKERY, INC.
("DEVELOPER") - MOUNT VERNON CORRIDOR REDEVELOPMENT
PROJECT AREA
..j
5
6
7
8
9
WHEREAS, the Agency owns certain property within the Mount Vernon Corridor
]0
Redevelopment Project Area (the "Project Area") as generally depicted in Exhibit "A" attached
to the Agreement (the "Agency Property"); and
II
]2
WHEREAS, the Agency is prepared to consider and study the provision of certain
redevelopment assistance to the Developer to facilitate the development of the Agency Property
13
so as to foster the community economic development goals and objectives of the City of San
14
Bernardino (the "City") as it relates to the redevelopment plan for the Project Area and the
15
Agency has designated for such study purposes, the land included within the perimeters of the
16
tract marked by the boundary lines depicted in Exhibit "A" (the "Study Area") for such study;
17
and
18
WHEREAS, the Developer is qualified to assist the Agency to undertake the study of
19
specific proposals and plans for a coordinated and economically sustainable redevelopment
project in the Study Area, which will require specific study, evaluation, and plmming by the
20
21
City and Agency, as applicable, of appropriate and feasible community redevelopment program
22
alternatives; and
"
_J
WHEREAS, iil accordance with the provisions of the California Environmental Quality
24
Act (CEQA). a Redevelopment Project Study and Redevelopment Assistance Agreement (the
"Agreement") is exempt from the provisions ofCEQA.
25
ii'
, -I-
I i H\""d..IR",'",i"..IR".'"'i,,,,IlUU6\UJ-20-06 ""i"', R""",,,,' ",d ",k", CDC R"'.do<
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
2 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
3 FOLLOWS:
4
Section 1.
The Community Development Commission hereby authorizes and
5
approves the Agreement by and between the Agency and the Developer in the form as presented
at the meeting of the Commission at which this Resolution is adopted and hereby authorizes the
6
7
Interim Executive Director to execute the Agreement on behalf of the Agency together with
such technical and conforming changes as recommended by the Interim Executive Director and
8
approved by the Agency Counsel.
9
Section 2.
10
Agreement is exempt from the California Environmental Quality Act (CEQA).
II
Section 3.
12
III
13
III
14
III
15
III
16
17 III
18 III
19 III
20 III
21 III
22 III
'l'
_0
III
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III
25
III
The Community Development Commission hereby finds that the
The Resolution shall become effective immediately upon its adoption.
P:\Aeendas\Resoluliolls\Rrsoluliolls\2006\03-20-06 AnilR'S Reslaunllll and Bakcf) CDC Relo,doc
-2-
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT
STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT
("AGREEMENT") WITH ANITA'S RESTAURANT AND BAKERY, INC.
("DEVELOPER") - MOUNT VERNON CORRIDOR REDEVELOPMENT
PROJECT AREA
3
4
S
6
7
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
8
Community Development Commission of the City of San Bernardino at a
, 2006, by the following vote to wit:
Abstain
Absent
]7
18
Secretary
19
The foregoing resolution is hereby approved this
day of
,2006.
20
21
Patrick 1. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
n
23
24
Approved as to form and Legal Content:
2S
A~f!l f2~
By:
II P"g",d"'.R"o'"'i,,,,,.Rm'ution,\1U06\03-1U-06 An....' R..,"u",,' ",d B,.,,, CDC ~:':.d",
THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE AGREEMENT
ANITA'S RESTAURANT AND BAKERY, INC.
(MOUNT VERNON CORRIDOR REDEVELOPMENT PROJECT AREA)
This Redevelopment Project Study and Redevelopment Assistance Agreement is dated as of
March 20, 2006, (this "Agreement"), and is entered into by and between Anita's Restaurant and
Bakery, Inc., a California corporation (the "Developer") and the Redevelopment Agency of the City of
San Bernardino, a public body, corporate and politic (the "Agency"), in light of the facts set forth in
the following recital paragraphs:
RECIT ALS
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 is prepared to consider and study the provision of certain redevelopment assistance
to the Developer to facilitate the development of the Agency Property so as to foster the community
economic dewlopment goals and objectives of the City of San Bernardino (the "City") as related to the
~10unt Vernon Corridor Redevelopment Project Area and said Agency Property is also referred to as
the Study Area (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 on the 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
The Developer and the Agency believe it is appropriate for the Developer, in consultation with
the Agency. to undertake certain redevelopment studies and to incur certain costs, in consultation with
the Agency, 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, THEREFORE, IN CONSIDER/\. TION OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY AGREE,
AS FOLLOWS:
] . Developer Acknowledl!ments 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 or an acceptance by the Agency of any offer or proposal
tiorn the Developer to convey any interest in the Agency Property to the Developer. Any studies
relating to the Study Area, and the Project (as defined below) that may hereafter be undertaken by the
\,~Vi.JJ' ~_l.:~nja _~tlachll1cnts :\~I'nls-All1end :200601-:U-OC> Anita's Resllluran: and (hI-en. ERI\ doc
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 Interim 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 Interim Executive Director, which the Agency Interim 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 Interim 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.
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:
(I) 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 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
(3) a party terminates this Agreement as provided under Section 19 or Section 20, as
applicable.
)
The Proiect.
The Project shall be in compliance with the Paseo Las Placitas Specific Plan and EIR for the
l\1ount Vernon Corridor dated April 20, 1992. 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 for undertaking of a
1
[' \~t'lIda'i':\genda AtlaCnmenlS '\~llllh-;\mend ~006\03-:0-06 Anita's Restauranl and Balery ER~ due
commercial development project as generally described as an 8,000 square feet restaurant, bakery and
cake display, together with on-site landscaping and parking (the "Project").
3. Nee:otiation Period, Proiect Study and Proiect 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") and
continue for 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 one hundred eighty (l 80) 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 and 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 Project proposed by the Developer.
On a best effort basis, the Agency and Developer shall cause the initial phase of the
Project Study as evidenced by the completion on an "lnitial Study" as this term is defined under the
California Environmental Quality Act ("CEQA") to be completed for the Project within one hundred
eighty (180) days following the Effective Date at the sole cost of the Developer. The Initial Study may
be prepared either by the Agency or the City as the "Lead Agency" as 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 Agency and in the event that the Initial Study
discloses that the Project will have 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 effort 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 two hundred seventy (270) days 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:
(1) be subject to the acceptance and approval of the 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;
(3) conform to the Paseo Las Placitas Specific Plan.
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.
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I' ,,-\gendas,Agcnda :\ttachnlcms,..\grnlls-Amend 2006\03-20-06 Anita's RestaufJnt and Rdkcry ERN doc
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. During the course of the Project Study, the Developer shall pay for any "Project Study
Costs" and expenses of third party consultants who are engaged by the Developer under written
contract to undertake one or more elements of the Project Study. 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 tem1S 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:
h. 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 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 assistance
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.
(1) 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 Agem:y within one
hundred eighty (180) 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.
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P,'\~endasA~enda Allachmcms'Agrlnls-Amend :006",03-10-06 Anita's Restaurant and Bil"tfV ER!\ doc
(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 tlmmg 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 be mutually
approved by the parties.
i. The Developer shall inform the Agency in writing whether based on the information set
forth in Section 3h. the Developer believes that the Project is feasible prior to the time 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 all interested persons or responsible
agencies for the Project. Thereafter, the Developer and the Agency may proceed to negotiate the final
form of an agreement in which the specific terms for the redevelopment of the Agency and Developer
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 Interim Executive Director, within the time periods set forth above. Within twenty (20)
calendar days of receipt of any such information, the Agency Interim Executive Director shall
determine whether such information is satisfactory. If the specific item of information is
unsatisfactory to the Agency Interim Executive Director, he or she shall notify the Developer in
writing of the reason(s) that the information is unsatisfactory. If the Agency Interim 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 Interim 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.
4. Obli!?:ations of the Developer.
During the Negotiation Period, the Developer shall proceed diligently and in good faith to
perform the following:
5
P \Agcndas\Agenda Attachmenls\A!,;rmts-Amend 2006\03-~O-06 Anita's Restaurant and Bakery ERl' doc
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; and
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 Interim 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.
5. A!!:encv Not to Ne!!: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 be 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 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 (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. 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. A!!:encv Cooperation.
During the Negotiation Period, the Agency shall:
a.
documents
Agency.
At the request of Developer, use its best efforts to assemble written materials and
relating to the Agency Property and the Study Area that are in the possession of the
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P "Age!'1das'.AgenJa -\u3cnmC'flIs,Agmns-Amend ~()O6",03.~O.06 Anita's ResI3uranl and B;lkery ER!\: doc
b. Use its best efforts to provide appropriate comments 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 relative to the Study Area.
7. Nel!:otiation ofProiect 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 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 of the Project DDA, but it is
understood by both parties that the Project must conform to City of San Bernardino development,
design and architectural standards as well as the Paseo Las Placitas Specific Plan. The Agency shall
fully cooperate with the Developer's professional associates in providing information and assistance in
7
I' A~clldas"AgtI1Ja Alta~hmel1lsA!!il1lts-,-\!l1end ::006.{,}-::O-06 Anila\ Reslaurant and llaker; [I{'.; doc
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 or
development of the Project. 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.
II. Developer Acquires No Interest in the A!!encv Propertv.
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.
8
IJ -\,:;cnddj AJ;ellda AllachmenlslAgrmts-Amend 2006\03-20-06 Anita's Reslaurant and Bakerv ERN doc
15. Press Releases.
The Developer agrees to discuss any press releases it may propose relating to the Agency
Property with the Agency Interim 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.
TO DEVELOPER:
Anita's Restaurant and Bakery, Inc.
Attention: Martha Maiz
739 North Mount Vernon Avenue
San Bernardino, California 92411
(909) 381-3178
TO AGENCY:
Redevelopment Agency of the City of San Bernardino
Attention: Interim Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
(909) 663-1044
17. Acceptance of Ae:reement by the Developer.
The Developer shall acknowledge its acceptance of this Agreement by delivering three (3)
counterpart executed copies of this Agreement prior to the date of consideration and approval of this
Agreement by the Commission. As further set forth in Section 3a. hereof, the Effective Date of this
Agreement shall be deemed to have occurred upon final approval of the Commission and execution by
both the Developer and the Agency Interim Executive Director.
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 by Developer or bv Ae: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 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.
9
P'Ag~l1das\Agenda Attachments' Agllllls-Amend 200603-20-06 Anita's Restaurant and 8....Kery ERl'\ doc
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.
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 \vaiver 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 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 prevailing party in any such legal proceeding shall be entitled to
recover its reasonable attorney's fees as an element of its damages, either as part of such legal
proceedings or in a separate legal action to recover such attorney's 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. Governing 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.
^)^) 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
10
") \~tnci,b:\i-'':f1JJ At1achmeJlts\:\~II1;I'''.\lT1end 2006 0:;.:0-06 Anita\ Re,l<lUlillll and 13.1kef, ERl\: doc
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 Ae:reement.
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 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. The Exhibit "A" referred to in this Agreement is attached hereto and
incorporated herein by this reference.
II
P ',.\....:ndJsAgenda Attachments\.....grlllls-Amend ~006D3-::0-06 Anita's Re:>lauranl and fhken ER!'\ do(;
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 One Thousand
Three Hundred Fifty Dollars ($1,350) 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 One Thousand Three Hundred
Fifty Dollars ($1,350) 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 hereafter be
negotiated by the parties under the terms of this Agreement; provided, however, that if title 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 Project DDA.
IN WITNESS WHEREOF, Anita's Restaurant and Bakery, 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
Anita's Restaurant and Bakery, Inc.
Dated: March 7, 2006
".
By: /
./,~7.',.
"
~;/,
Martha Maiz, President
AGENCY
Redevelopment Agency of the City of San Bernardino
Dated:
By:
Maggie Pacheco, Interim Executive Director
APP~VED AJ TO FORM: ,
~~II~
Agency C 1sel
12
P \Agendas"Agemb Attachments Agrmls-Amend :::006\03-20-06 Anlla's Restauralll and Bakery ERN doc
28. ERN Fee.
Concurrently with the execution and delivery of this Agreement by the undersigned parties, on
the Effective Date, the Developer shal1 deliver to the Agency a check in the amount of One Thousand
Three Hundred Fifty Dollars ($1,350) 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 One Thousand Three Hundred
Fifty Dollars ($1,350) 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 hereafter be
negotiated by the parties under the terms of this Agreement; provided, however, that if title 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 Project DDA.
IN WITNESS WHEREOF, Anita's Restaurant and Bakery, 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
Anita's Restaurant and Bakery, Inc.
'\
",
"
Dated: March 7, 2006
By:
T)-]/!
Martha Maiz, President
AGENCY
Redevelopment Agency of the City of San Bernardino
Dated:
By:
Maggie Pacheco, Interim Executive Director
APPROVED AS TO FORM:
AgQ~00;A~
12
PAI!~JldasAl1.enda A1I3cnmentsAgrnlls.Amend ~006\U3-20.06 Anna's Restauran1 a.lld Baker) ERI' doc
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 One Thousand
Three Hundred Fifty Dollars ($1,350) representing the Exclusive Right to Negotiate Fee (the "ERN
Fee"). The ERN Fee is payable to the Agency as compensation for removing the Property from
consideration by other prospective purchasers and to reimburse the Agency for the costs and expenses
required for the preparation of this Agreement and the anticipated Project DDA. The ERN Fee is the
property of the Agency on the Effective Date. In the event that a Project DDA may hereafter be
approved and executed by the parties, the Agency shall pay the sum One Thousand Three Hundred
Fifty Dollars ($ I ,350) 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 hereafter be
negotiated by the parties under the terms of this Agreement; provided, however, that if title 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 Project DDA.
IN WITNESS WHEREOF, Anita's Restaurant and Bakery, 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
Anita's Restaurant and Bakery, Inc.
,
" /
'.
/
.."-;, ;J, j ...__
By: ;'F7, ,.(/1; _.
Dated: March 7, 2006
Martha Maiz, President
AGENCY
Redevelopment Agency of the City of San Bernardino
Dated:
By:
Maggie Pacheco, Interim Executive Director
APPROVED AS TO FORM:
I[)~~
Agency Co sel
12
P 'Agtndas.Agend.:l AII3.:hmenls'Agrmts-Am~nd ~006,O].20.U6 Anita's RC'.lauralll and Baker}' ER'" doc
EXHIBIT "A"
A2encv Property/Studv Area
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 3 ~ J D r r: b Item #
Vote: Ayes 7 Nays
Change to motion to amend original documents D
~3o
Resolution #
we{.J.oD6-/
Abse t
Abstain
Companion Resolutions
NulVVoid After: days /
Resolution # On Attachments: D Note on Resolution of attachment stored separately: D
PUBLISH D
POST D
RECORD W/COUNTY D
By:
3')1.00
7'Y).--rO ~
Date ofClerklCDC Signature: '/;1 or' Db
Reso. Log Updated: if
Seal Impressed: ~ /
Reso. # on Staff Report ~
Date Sent to Mayor:
Date of Mayor's Signature:
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
Date Returned:
2"d Reminder Letter Sent:
Not Returned: D
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985,8234,655,92-389):
Yes /
NOr By~
No~ By~
N04BY~
No / ~
N02 B~~
Yes
Yes
Yes
Yes
Copies Distributed to:
Animal Control D
City Administrator D
City Attorney D
Code Compliance D
Development Services D
Others:
EDA / Information Services D
Facilities D Parks & Recreation D
Finance D Police Department D
Fire Department D Public Services D
Human Resources D Water Department D
/
Notes:
Ready to File: _
Date:
31)1(,~~
Revised 12/18/03
City of San Bernardino
ECONOMIC DEVELOPMENT AGENCY
Redevelopment" Community Development" Housing" Business: Recruitment, Retention, Revitalization. Main Street, Inc.
'"
March 24, 2006
Anita's Restaurant and Bakery, Inc.
Attention: Martha Maiz
739 North Moun1 Vernon Avenue
San Bernardino, California 92411
Re: Redevelopment Project Study and Redevelopment Assistance Agreement - Anita's
Restaurant and Bakery, Inc. (Mount Vcrnon Corridor Redevelopmcnt Project Area)
Dear Ms. Maiz:
Enclosed for your records is the fully executed Agreement that was approved by the Community
Development Commission of the City of San Bernardino on March 20, 2006 (Resolution
CDC/2006-9).
Should you have any questions regarding this matter, please feel free to call me at (909) 663-1044.
Wasana A. Chantha
Secretary
cc:
Barbara Lindseth (with Original Execu1ed Agreement)
Eileen omez willi Ongiiml"Executea'Agreement)
Colin Strange (with Copy of xecuted Agreement
201 North E Street, Suite 301. San Bernardino, California 92401-1507. (909) 663-1044. Fax (909) 888-9413
www.sanbernardino-eda.org.