HomeMy WebLinkAboutR41-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY ORIGINAL
OF THE CITY OF SAN BERNARDINO
DATE: May 23,2006
SUBJECT: Redevelopment Project Stndy Agreement
by and between the Redevelopment Agency
and ICO Fund V, LLC - Northwest corner
of 4th and "E" Streets (Central City North
Redevelopment Project Area)
FROM: Maggie Pacheco
Executive Director
__.._____________..__________.._________u___________________________________________________________________________---------------------------------------------
Svnonsis of Previous Commission/Council/Committee Action(s):
On May 2, 2006, Redevelopment Committee Members Estrada, McGinnis and Johnson unanimously voted to
recommend that the Community Development Commission consider this action for approval.
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Recommended Motion(s):
(Communitv Develonment Commission)
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 ("Agreement") with ICO Fund Y, LLC
("Developer") (Central City North Redevelopment Project Area)
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Project Area(s):
Maggie Pacheco
Central City North
Redevelopment Project Area
Phone:
(909) 663-1044
Contact Person(s):
Ward(s):
Supporting Data Attached: "" Staff Report "" Resolution(s) "" Agreement(s)/Contract(s) "" Map(s) 0 Letters
Budget Authority:
N/A
N/A
FUNDING REQUIREMENTS: Amount: $
-0-
Source:
,du.~<4C ~'7l,,-/;(
Barbara Lindseth, Admin. Services Director
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. / .
SIGNATURE:
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P:\Agendas\Comm Dev Commission\CDC 2006\06-05-06ICO, loc. - Grassy Knolls NW Comer 4th & E Streets SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 06/05/2006
Agenda Item Number: B!iL
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
REDEVELOPMENT PROJECT STUDY AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY AND ICO FUND V, LLC - NORTHWEST CORNER OF 4TH
AND "E" STREETS (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA)
BACKGROUND:
The Redevelopment Agency of the City of San Bernardino ("Agency'') is the owner of the CinemaStar
complex ("Site") at the northwest comer of 4th and "E" Streets, downtown in the Central City North
Redevelopment Project Area. This property, consisting of five (5) parcels was acquired by the Agency
in 1993, and two (2) of the parcels (marked I & 2 on the attached map) transferred to MDA-San
Bernardino, LLC ("MDA") for the construction of a 4,400 seat, 20 screen cinema complex. The
Agency retained ownership of the other three (3) parcels marked 3, 4, & 5 on the map (the "Site").
Once the cinema was built, the plan was to further develop the Site as an entertainment district
featuring specialty restaurants such as Planet Hollywood, and entertainment related retail such as
Tower Records, a Nike Store and a Barnes and Noble. This, it was forecast, would create a new
synergy in the downtown area much akin to Universal City Walk in Studio City drawing thousands of
consumers, not only to the Site, but also to the adjacent Carousel Mall and the California Theatre.
CinemaStar commenced operation on December 10, 2000; it was at this time, however, that the
Cinema Industry experienced a downturn and it became obvious that MDA would be unable to
continue with the second phase of the project. In 2001, the project was refinanced and the Agency
assumed ownership of the CinemaStar building from MDA. The parcels in front of the CinemaStar
building were grassed over in the hope that a new developer would soon be found to complete the
second component of the project. Over the years, numerous attempts by the Agency to attract
developers and brand name tenants to the Site have been unsuccessful, despite the successful
reorganization of the CinemaStar lease and the fact that approximately 17,000 - 25,000 cinemagoers
now visit the complex each week.
CURRENT ISSUE:
For the past six (6) months, Agency Staff have been in discussion with Mr. Jian Torkan of ICO Real
Estate Group, Inc. (lCO), regarding the potential development of the Site. ICO has been in business
for thirty (30) years and Mr. Torkan has been with the company for the last ten (10) years. The
company owns several properties in San Bernardino including, two (2) shopping centers, one at
Highland and Del Rosa and one on Highland and Elmwood as well as an 80,000 square foot office
building on Commerce Center Drive. Mr. Torkan is well known to the Agency and is currently the
developer of several new projects in the City including a pending 45,000 square foot office complex
for the County of San Bernardino Transitional Assistance Department (TAD) on a parcel ICO will be
acquiring from the Agency on the southwest comer of Waterman Avenue and 4th Street, an 80,000
square foot administration/warehouse building for the Community Action Partnership of San
Bernardino County on Tippecanoe Avenue, a hotel/retail project on Hospitality Lane west of Costco
which will contain a new Hampton Inn and a new Homewood Suites as well as being in discussion
P:\Agendas\Conun Dev Commission\CDC 2006\06-0S..Q6ICO, Inc::. . Grassy Knolls NW Comer 4th & E Slfeets SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 06/0512006
Agenda Item Number: ML
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Economic Development Agency Staff Report
Grassy Knolls-lCO. Inc. Redevelopment Project Study
Page 2
with the Agency and the City regarding the potential development of a site east of Tippecanoe Avenue
alongside the 1-10 Freeway into a mixed use retail/residential development.
With regard to the CinemaStar site, Mr. Torkan has been in touch with a number of national tenants
and Starbucks Coffee, as well as Bob's Big Boy amongst others, have indicated serious interest in his
proposed 10,000 - 12,000 square foot retail/restaurant development of the Site. This would also
include a large patio/rotunda for outdoor dining, enhanced landscaping, some additional parking and
several water features. The Developer needs to show evidence that he has control of the Site in order
to obtain the necessary lease commitments from the tenants and has therefore requested a four month
Redevelopment Project Study Agreement ("Agreement"), with a possible two (2) month extension,
ultimately leading to a Disposition and Development Agreement between the Agency and ICO. The
Developer will also be required to pay to the Agency a ERN fee in the amount of $5,000 pursuant to
Section 30 of the Agreement.
The Developer has stated that he is not seeking any Agency funds for the project and intends to
purchase the Site at market rate, which would be determined by an independent MAl appraiser selected
by the Agency.
ENVIRONMENTAL IMPACT:
The Study Agreement is categorized as Statutory Exemption under the California Environmental
Quality Act (CEQA) per Public Resource Code Sections 21102 and 21150.
FISCAL IMPACT:
None.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
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COMMISSION MEETING AGENDA
Meeting Date: 86/0512006
Agenda Item Number: ~
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014
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RESOLUTION NO.
2
3
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 ("AGREEMENT") WITH ICO FUND V, LLC
("DEVELOPER") - CENTRAL CITY NORTH REDEVELOPMENT
PROJECT AREA
4
5
6
7
8
WHEREAS, the Agency owns certain property within the Central City North
Redevelopment Project Area (the "Project Area") as generally depicted in Exhibit "A" attached
to the Agreement (the "Agency Property"); and
WHEREAS, the Agency and the Developer are interested in exploring the development
feasibility of the Agency Property 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
WHEREAS, the Developer is qualified to assist the Agency to undertake the
development feasibility 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
9
10
II
12
15
16
17
18
19
alternatives; and
20
WHEREAS, in accordance with the provisions of the California Environmental Quality
Act ("CEQA"), a Redevelopment Project Study Agreement (the "Agreement") is exempt from
the provisions of CEQA.
21
22
"
-,
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
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25
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Section 1.
The Community Development Commission hereby approves the
2
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
Executive Director to execute the Agreement on behalf of the Agency together with such
3
4
5
technical and conforming changes as recommended by the Executive Director and approved by
6
the Agency Counsel.
Section 2.
The Community Development Commission hereby finds that the
7
8
Agreement is exempt from the California Environmental Quality Act.
The Resolution shall become effective immediately upon its adoption.
Section 3.
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III
10
III
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12 III
13 III
0 14 III
15 III
16 III
17 III
18 III
19
III
20
III
21
III
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III
23 III
24 III
25
0 III
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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 ("AGREEMENT") WITH ICO FUND V, LLC
("DEVELOPER") - CENTRAL CITY NORTH 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
, 2006, by the following vote to wit:
Abstain
Absent
Secretary
day of
,2006.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
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REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AGREEMENT
ICO FUND V LLC
(CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA)
This Redevelopment Project Study Agreement is dated as of June 5, 2006, (the
"Agreement"), and is entered into by and between ICO Fund V, LLC, a California Limited
Liability Company (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:
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 is prepared to consider and study specific proposals and plans to facilitate
the development of the Agency Property 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
North Redevelopment Project Area; 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 CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY
AGREE, AS FOLLOWS:
1. Develooer Acknowledements and Term of Aereement.
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
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offer or proposal from 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 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
importance 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
Agreement effective immediately 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 four (4) 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 not to exceed two (2) months beyond the initial term of this
Agreement, subject to the Executive Director of 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.
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2. The Proiect.
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 Agency Property for undertaking of a commercial development project as
generally described as between 9,000 to 12,000 of restaurant/retail space, together with on-site
landscaping, including outdoor patios, rotunda and water features, and parking (the "Project").
3. Nel!:otiation Period. Proiect Studv and Proiect Studv 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 four (4) 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 thirty (30) 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 of an "Initial Study" as this term is defined
under the California Environmental Quality Act ("CEQA") to be completed for the Project
within sixty (60) 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.(1) and (2) in sufficient detail to be mutually acceptable to the Developer and the 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 the
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 thirty (30) 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
the period time set forth in Section l.d. following the Effective Date.
c. The Developer may modify the description of the Project at any time; provided,
however, that substantial modifications of the Project shall:
(I) be subject to the written acceptance and written approval of the Agency;
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(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 approval of the
Developer, which shall not be unreasonably withheld.
d. The Agency shall on a best efforts basis during the course of the Project Study
consider the specific terms and conditions of only non-monetary redevelopment assistance which
the Developer may propose to include in the Project DDA; provided, however, the Agency
reserves the right 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 costs
associated with the Project Study, including but not limited to the 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 (the "Project Study Costs"). Project study costs do not include third party
costs incurred by the Agency in connection with the performance of any study or document as
part of 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. 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
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(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.
h. (I) An initial draft of a document including the study elements identified in
subparagraph (g)(i) through (vi) above shall be completed by the Developer and submitted to the
Agency within sixty (60) days following the Effective Date. Thereafter, the parties shall refine
the draft document as submitted by the Developer in accordance with a schedule of refinement
work for such studies to be mutually approved by the parties.
(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 fmancing 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 Sections 3(g) and 3(h), 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 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 Section
3 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
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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.
4. Oblie: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; and
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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.
5. Ae:encv Not to Nee: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.
~. 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 approving 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 approve such proposal by the official
o action of the Agency governing board.
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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. Ae: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 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. Nee: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 Community Development Commission (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
o Commission nor shall the Commission be committed to approve any final form of a Project
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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 Ae:reement and Reservation of Rie:hts.
In consideration for the Agency entering into this Agreement, the Developer will
undertake its obligations under this Agreement and provide the Agency with copies of all studies
and reports and other information generated by the Developer or its consultants regarding the
Project. The parties agree that, if this Agreement terminates for any reason, or the Agency fails
to extend the Negotiation Period, or the Project DDA is not fmally 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. Plannine: and Desie:n: Related Acknowlede:ments of the Parties.
Certain development standards and design controls for the Project may be established
between the Developer and the Agency in negotiation of or in the final form of the Project DDA,
but it is understood by both parties that the Project 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 non-monetary 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. DeveloDer 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 fmancial 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, as permitted by law. The Agency shall advise the Developer of any public records
act requests for such business records, and the proposed response of the Agency thereto.
II. DeveloDer Acauires No Interest in the Ae:encv ProDertv.
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.
4845-5627-6993.2
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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 hislher 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:
ICO Fund V, LLC.
Attn.: Jian Torkan
9663 Santa Monica Boulevard, Suite 737
Beverly Hills, California 90210
(310) 277-2226
4845-5627-6993.2
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TO AGENCY:
Redevelopment Agency of the City of San Bernardino
Attn.: Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
(909) 663-1044
17. Acceotance of Aereement bv the Develooer.
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 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. Ootional Termination bv Develooer or bv Aeeocv.
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 at least a twenty-one (21) day advance 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.
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 in fact complete such cure, correction or remedy, within said five (5)
calendar days, 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.
4845.5627-6993.2
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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.
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. Attornevs' Fees.
If any party hereto files any action or brings any action or proceeding against the other
arising out of this Agreement, or is made a party to any action or proceeding brought by a third
party, then as between the Developer and the Agency, the prevailing party shall be entitled to
recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as
fixed by the Court, in such action or proceeding or in a separate action or proceeding brought to
recover such attorneys' fees. As between the Developer and the Agency, the prevailing party
shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable
attorneys' fees as fixed by the Court, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees.
22. Indemnification.
Developer agrees to indemnify, protect, defend (if requested by Agency and/or City) and
hold the Agency and/or City, and their officers, employees and agents, harmless from and
against all damages, judgments, costs, expenses and attorney's fees arising from or related to any
act or omission of Developer in performing its obligations hereunder. The Agency and/or City
shall give Developer written notice of the occurrence of a claim, litigation or other matters for
which the Agency and/or City seek indemnity under this Section as promptly as practicable
following the Agency's and/or City's knowledge of the occurrence of such matter and the
Agency and/or City shall reasonably cooperate with Developer in the defense of any such claim
or matter.
23. Governinl!: Law; Venue.
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.
24. Severability.
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
484;.5627-6993.2
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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.
25. 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 nor shall it 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.
26. 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 be deemed to be an extension of the time for performance of any other
obligation or act to be performed under this Agreement.
27. Entire Al!: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 appropriate party 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.
28. 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 default under this Agreement by the party
so failing to perform, which default can be waived by the other party at its sole and complete
discretion.
29. 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 as if fully set forth herein
in its entirety.
484;-;627-6993.2 12
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30. 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 Five Thousand Dollars ($5,000) representing the Exclusive Right to Negotiate Fee (the "ERN
Fee"). The ERN Fee is payable to the Agency as compensation for removing the Agency
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 if no Project DDA is
ever approved or executed regardless of the reasons therefore. However, in the event that a
Project DDA may hereafter be approved and executed by the parties, the Agency shall pay the
sum of Five Thousand Dollars ($5,000) 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
Agency Property as may hereafter be negotiated by the parties under the terms of this
Agreement; provided, however, that if title to the Agency 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.
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4845-5627-6993.2 13
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IN WITNESS WHEREOF, ICO Fund V, LLC, and the Redevelopment Agency of the
City of San Bernardino execute this Redevelopment Project Study Agreement on the dates
indicated next to each of the signatures of their authorized representatives as appear below.
DEVELOPER
ICO Fund V, LLC
Dated:
By:
Jian Torkan
AGENCY
Redevelopment Agency of the City of
San Bernardino
Dated:
By:
Maggie Pacheco, Executive Director
APPROVED AS TO FORM:
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C/. - 'IJ-
Age~Un e1
4845-5627-6993.2
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** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): ~ I:) loG, Item #
/
Vote: Ayes ) ,Q 5 (" Nays 7
)) 'J lx,
Change to motion to amend original documents~
Null/Void After: _ days /
Resolution # On Attachments:'K;[
PUBLISH D POST D
Abstain
--i)-
CbC :J{y)0- /'-1
Absent 3v 1
f<-1/
I '
Resolution #
Companion Resolutions
Note on Resolution of attachment stored separately: D
RECORD W/COUNTY D
By:
Date Sent to Mayor: lOG
Date of Mayor's Signature: b--l-0G>
Date of ClerklCDC Signature: (p - I d - ()o
Reso. Log Updated: ()?/
Seal Impressed: ~
Reso. # on StaffReport~_
Date Memo/Letter Sent for Signature:
I" Reminder Letter Sent:
{)(J; - I~ (),o
Date Returned:
Not Returned: D
2"d Reminder Letter Sent:
Request for Council Action & Staff Report Attached: Yes No By_
Updated Prior Resolutions (Other Than Below): Yes No By_
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634): Yes No By_
Updated CDC Personnel Folders (5557): Yes No By_
Updated Traffic Folders (3985, 8234, 655, 92-389): Yes No By_
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' ,
718/1,02/. nP-rrb ,otrr
~ CrlfM P/O-J uJ MMl A-
Ready to File: ~
Date:
Revised 12/18/03
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
June 13, 2006
TO:
Wasana Chantha, Secretary
Economic Development Agency
FROM:
Sandra Medina, Assistant to the City Clerk
RE:
Transmitting Documents for Signature - Resolution No. CDC/2006-14
At the Mayor and Common Council meeting of June 5, 2006, the City of San Bernardino
adopted Resolution No. CDC/2006-14 - Resolution authorizing the Executive Director of the
Redevelopment Agency of the City of San Bernardino ("Agency") to execute the Redevelopment
Project Study Agreement ("Agreement ") with ICO Fund V, LLC ("Developer '') - Central City
North Redevelopment Project Area,
Attached are one (1) agreement and two duplicate original agreements. Please obtain Maggie
Pacheco's signature in the appropriate locations and return the original agreement as soon as
possible, to Dodie Otterbein, Records Management Coordinator, City Clerk's Office. Please
retain one duplicate agreement for your records and forward one to the other party.
If you have any questions, please do not hesitate to contact Dodie Otterbein at ext. 3215. Thank
you.
~OI(I{);w~Jv
Sandra Medina
Assistant to the City Clerk
acknowledge receipt of the above mentioned documents.
Please sign and return
Date: 0'1"11'0<0
..,.~ '. ~
..,'1 c\..t\:,
r- .\\;lV-C,I,'
CITY OF SAN BERNARDINOI,tC,l " S'J
ECONOMIC DEVELOPMENT AGENLX'b _'3 ~\\ \j.
'l.~I\\) f\\J
INTER-OFFICE MEMORANDUM
SUBJECT:
Sandra Medina, Assistant to the City Cle\::f~ Clerk's Office
Wasana A. Chantha, Executive Secretary ~
Executed Agreement - CDC/2006- 14
TO:
FROM:
DATE:
August 3, 2006
Enclosed for your records is the fully executed Agreement that was approved by the Community
Development Commission of the City of San Bernardino on June 5, 2006 pertaining to the
following resolution:
CDC/2006-14
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 ("Agreement") with
ICO Fund V, LLC ("Developer") - Central City North Redevelopment
Project Area.
Should you have any questions, I can be reached at (909) 663-1044.
Thank you.
Enclosure
cc: Barbara Lindseth (with Original Executed Agreement)
Colin Strange (with Copy of Executed Agreement)
File