HomeMy WebLinkAboutR22-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Gary Van Osdel
Executive Director ~'"'
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SUBJECT: TIPPECANOE RETAIL PROJECT -
INLAND V ALLEY DEVELOPMENT
AGENCY
DATE:
February 20, 2003
SvnoDsis of Previous Commission/Council/Committee Action(s):
On July 12, 1999, the Conuuunity Development Conuuission approved a Cooperation Agreement with the Inland Valley
Development Agency (IVDA).
On May 21, 200 I, the Conuuunity Development Conuuission and/or Conuuon Council approved a Disposition and
Development Agreement with SBT Partners and certified an Environment Impact Report for the HUB Project.
On November 5, 2001, the Conuuunity Development Conuuission approved the Condemnation Memorandum by and
between the IVDA and the Redevelopment Agency of the City of San Bernardino.
On October 21, 2002, the Conuuunity Development Conuuission approved Operating Memorandum No. I by and
between the IVDA and the Redevelopment Agency.
On February 3, 2003, the Conuuunity Development Conuuission made a decision to appraise a real property for Phase II
of the HUB project.
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Recommended Motion(s):
(Communitv Development Commission)
MOTION:
THAT THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO AUTHORIZE THE EXECUTIVE DIRECTOR TO EXECUTE THE OPERATING
MEMORANDUM NO.2 DATED MARCH 3, 2003, BY AND BETWEEN THE INLAND VALLEY
DEVELOPMENT AGENCY AND THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO TOGETHER WITH SUCH NON-SUBSTANTIVE CHANGES AS ARE
APPROVED BY AGENCY SPECIAL COUNSEL.
Contact Person(s):
Gary Van Osdel/John Hoeger
Phone:
(909) 663-1044
Three (3)
Project Area(s)
Supporting Data Attached:
IVDA
Ward(s):
o Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letter/Memo
FUNDING REQUIREMENTS Amount: $ See Text
Source:
N/A
SIGNATURE:
BU,dget Authority:
~
N/A
Commission/Council Notes:
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P:\Clerical Services Dept\Margarct Parker\Agenda\CDC 2003\03-03-03 Tippecanoe Retail ?rojcct.doc
COMMISSION MEETING AGENDA
Meeting Date: 03/03/2003
Agenda Item Number: R;J..;J...
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
_____________________________________u___________________ ___u________________________________________________________________+_______.__________________________________________--------.-------------.
Tippecanoe Retail Proiect - Inland Vallev Development A2encv
BACKGROUND:
Currently, the Agency's appraiser is appraising property in Phase II of the Tippecanoe Retail Project
(the HUB Project). It is expected that there will be some cases where owners will be unwilling to
agree to a value that is acceptable to the Agency. It is therefore appropriate to issue Operating
Memorandum No. 2 with NDA to facilitate referrals of properties requiring eminent domain for
Phase II of the HUB.
CURRENT ISSUE:
The attached Operating Memorandum No. 2 sets forth the terms on which the Agency may refer
specific HUB Project parcels for acquisition by condemnation using eminent domain powers of the
NDA. The Operating Memorandum sets forth each party's role in the condemnation process. NDA
agrees to consider each transaction that is referred to it. The Agency agrees to pay all costs in
connection with each action.
ENVIRONMENT AL IMPACT:
The environmental actions for this matter were previously completed by the Common Council at its
May 21, 2001, meeting for State (CEQA) regulations. Compliance with federal (NEPA) regulations
with respect to the use of federal funds for demolition of structures within the Harriman Street public
street right-of-way has been demonstrated by a Finding of No Significant Issues, issued and
circulated by the Agency.
FISCAL IMPACT:
A deposit of the appraised value of each property referred to the NDA will be required prior to the
holding of a condemnation hearing by the NDA governing board. The developer is required, under
terms of the Disposition and Development Agreement, to pay the agreed land price to the Agency at
this time and the Agency in turn will forward the sum to the NDA. The Agency will then add any
additional amount necessary to meet the appraised value. The Agency will also be responsible for
legal and court costs in each case after the NDA adopts one or more resolutions of necessity. The
Commission will have reviewed these cost amounts when issuing instructions to the Agency's real
property negotiator.
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P:\Clcrical Services Dcpl\Margarel ParkcrlAgcl1da\CDC 2003\03-03-03 Tippecanoe Retail Projccl.doc
COMMISSION MEETING AGENDA
Meeting Date: 03/03/2003
Agenda Item Number: f{'J.. J"
Economic Development Agency Staff Report
Tippecanoe Retail Project
Page 2
RECOMMENDATION:
That the Community Development Commission authorize the Executive Director to execute the
Operating Memorandum No.2 dated March 3, 2003, by and between the Inland Valley Development
Agency and the Redevelopment Agency of the City of San Bernardino together with such non-
substantive changes as are approved by Agency Special Counsel.
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P:\Clcriclll Services Dept\Margaret ParkeMgcnda\CDC 2003\03-03-03 Tippecanoe Retail Project,doc
COMMISSION MEETING AGENDA
Meeting Date: 03/03/2003
Agenda Item Nnmber: RJ.J...
OPERATING MEMORANDUM NO.2 TO REDEVELOPMENT
CONDEMNATION MEMORANDUM DATED AS OF
NOVEMBER 5, 2001 BY AND BETWEEN THE INLAND
VALLEY DEVELOPMENT AGENCY AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO
THIS OPERATING MEMORANDUM NO. 2 TO REDEVELOPMENT
CONDEMNATION MEMORANDUM, (herein "Operating Memorandum No.2") is dated as of
March 3, 2003 by and between the Inland Valley Development Agency, a joint exercise of
powers authority established under the laws of the State of California (the "IVDA") and the
Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the
"Agency") and is entered into with respect to the following facts:
- RECITALS --
A. The IVDA and the Agency have previously entered into that certain agreement
entitled "Redevelopment Condemnation Memorandum", dated as of November 5, 2001 (the
"Condemnation Memorandum") relating to a community redevelopment project referred to by
the parties to the Condemnation Memorandum as the "HUB Project".
B. The IVDA and the Agency have previously approved Operating Memorandum
No.1 dated as of October 23, 2002 to the Condemnation Memorandum.
C. In order to accommodate the implementation of the "Phase II Project", as this
term is defined in the Disposition and Development Agreement, dated as of May 21, 2001, as
amended by and between SBT Partners, LLC, a California limited liability company ("SBT
Partners") and the Agency (the "SBT Partners DDA"), the Agency has requested that the IVDA
approve the provisions of this Operating Memorandum No.2.
D. The IVDA and the Agency each believe it is appropriate to enter into this
Operating Memorandum No.2 and proceed with the completion of the assembly and acquisition
of the lands included in the Phase II Project.
NOW THEREFORE THE INLAND V ALLEY DEVELOPMENT AGENCY AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO DO HEREBY
MUTUALLY AGREE AS FOLLOWS:
Section I. The parties acknowledge and agree that the Condemnation Memorandum
and Operating Memorandum No. 1 are in full force and effect and that the parties thereto are not
in default or breach of any provisions thereunder.
Section 2. The purpose of this Operating Memorandum No.2 is for the IVDA to
assist and cooperate with the Agency in the implementation of the Phase II Project of the HUB
Project. Upon the execution by the parties of this Operating Memorandum No.2, the rights,
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duties and responsibilities of the IVDA and the Agency with respect to the acquisition of any of
the lands included in the "Phase II Site", as this term is defined in the SBT Partners DDA, and
the payment of all costs, expenses and fees of the IVDA associated therewith, shall be as set
forth in the Condemnation Memorandum, and this Operating Memorandum No.2.
Section 3. As used in this Operating Memorandum No.2, the following words and
phrases when used in connection with the Phase II Project, shall have the following meanings,
unless the particular context of usage of a word or phrase may otherwise require:
. "Acquisition Agent" means and refers to the firm of real property acquisition consultants
retained by the Agency to provide administrative and liaison services among the Agency,
the IVDA and each Owner of a Phase II Site Parcel, the Appraiser and the Relocation
Consultant during the HUB Project land assembly process for the Phase II Site. The
Acquisition Agent may deliver each Phase II Site Offer to each Owner as the Agency
Staff and the IVDA Staff may jointly direct. The Acquisition Agent shall also provide
such other administrative and property acquisition liaison services relating to the Phase II
Project as the Agency and the IVDA may jointly direct.
. "Agency Investigations" means and refers to the Agency's (and the Developer as the
agent of the Agency) due diligence investigations of each Phase II Site Parcel relating to
the environmental conditions (e.g.: the absence of "hazardous substances" and
compliance with "environmental laws") and geotechnical conditions on each such Phase
II Site Parcel.
. "Agency Staff' means and refers to the Executive Director of the Agency and the
designees of the Executive Director of the Agency.
. "Appraiser" means and refers to the firm of real estate appraisers approved by the IVDA
and retained by the Agency to provide real property appraisal services in connection with
the preparation of the Phase II Site Offers for each of the Phase II Site Parcels. With
respect to each Phase II Site Condemnation Parcel, the Appraiser shall also provide such
real property appraisal services as the Agency and the IVDA may jointly direct.
. "IVDA Staff' means and refers to the Executive Director of the IVDA (or its equivalent)
and the designees ofthe Executive Director of the IVDA.
. "Owner" and/or "Owner of a Phase II Site Parcel" means and refers to the person or
entity which owns a Phase II Site Parcel. A listing of the identity and the current mailing
address of each Owner is on file with the Agency.
. "Phase II Site" means and refers to all of the lands necessary for the Phase II Project. A
map of the Phase II Site is attached hereto as Exhibit "A".
. "Phase II Site Condemnation Parcel" means and refers to a Phase II Site Parcel for which
the Agency Staff and the IVDA Staff have been unable to satisfactorily complete a
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negotiated purchase with the Owner thereof within a reasonable period of time following
the transmittal of a Phase II Site Offer.
. "Phase II Site Offer" means and refers to each offer to purchase a Phase II Site Parcel
which the IVDA Staff shall, in consultation with Agency Staff, transmit to an Owner.
. "Phase II Site Parcel" means and refers to each of the legal parcels of land which
comprise the Phase II Site. A legal description of each of the Phase II Site Parcels which
comprise the Phase II Site is on file with the Agency.
. "Phase II Site Parcel Acquisition Agreement" means and refers to the form of a real
estate purchase agreement by and between the IVDA, or the Agency, as applicable, and
an Owner of a Phase II Site Parcel. Each Phase II Site Parcel Acquisition Agreement
shall set forth the acquisition price and a total compensation amount payable by the
Agency (or if applicable payable by the IVDA, subject to the payment by the Agency to
the IVDA of all such costs as provided in this Operating Memorandum No.2) to the
Owner, and each such Phase II Site Parcel Acquisition Agreement shall contain other
details as appropriate, relating to tenant relocation, Owner relocation assistance and other
matters approved by the IVDA or the Agency, as applicable. The final acceptance of the
terms of each Phase II Site Parcel Acquisition Agreement shall be subject to ratification
by the agency (as between the IVDA and the Agency) accepting title to the particular
Phase II Site Parcel from the Owner.
. "Phase II Site Relocation Plan" means and refers to the relocation plan for the Phase II
Project as approved by the Agency. A copy ofthe Phase II Site Relocation Plan is on file
with the Agency.
. "Relocation Consultant" means and refers to the firm of relocation consultants retained
by the Agency which shall implement the Phase II Site Relocation Plan and provide
relocation assistance services to the occupants of each Phase II Site Parcel in consultation
with the Agency Staff and the IVDA Staff.
Section 4.
Parcels.
Phase II Site Offers and Acquisition of Phase II Site Condemnation
(a) The IVDA Staff in consultation with the Agency Staff shall prepare and transmit
a Phase II Site Offer to each Owner. Each such Phase II Site Offer shall be based upon the
Appraisal and shall include a written statement setting forth the basis of Phase II Site Offer as
required by applicable law. The IVDA Staff shall consult with the Agency Staff in the
preparation of each Phase II Site Offer. Each such Phase II Site Offer shall be in the form
required by Government Code Section 7267.2. Each Phase II Site Offer shall be transmitted on
the letterhead of the IVDA and shall direct the Owner to contact either the Acquisition Agent or
IVDA Staff or Agency Staff for response to any questions or to negotiate any terms requested by
such Owner. The Phase II Site Offer may also be presented to the Owner of a Phase II Site by
the Acquisition Agent or in such other manner as the Agency Staff and the IVDA Staff may
jointly approve.
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(b) The Agency shall be responsible for paying all direct third-party costs of the
IVDA associated with the consideration by the IVDA of the acquisition of any Phase II Site
Parcel, including the costs of consultants, real property appraisers, experts, lawyers, engineers
and others who may be specifically retained by the IVDA for the purpose of undertaking any
work or responsibility associated with the consideration of the acquisition of any Phase II Site
Parcel by the IVDA either by negotiated purchase in consultation with the Agency, or by
condemnation. The selection of any such consultant, expert or lawyer to provide such services to
the IVDA shall be at the sole discretion of the IVDA. In addition, the Agency shall reimburse
the IVDA for the cost of IVDA Staff time devoted to the acquisition by the IVDA of any Phase
II Site Parcel and/or any Phase II Site Condemnation Parcel, calculated on an hourly basis in
accordance with the IVDA's cost for such staff personnel. The Agency shall pay the IVDA for
the costs identified in this subsection (b) in monthly installments within thirty (30) days
following receipt of a suitably detailed written invoice from the IVDA.
( c) The Agency shall be responsible for paying all relocation costs and expenses in
accordance with applicable law which may arise or be claimed to be payable to any occupant on
any Phase II Site Parcel and/or a Phase II Site Condenmation Parcel, who is displaced as a result
of the Phase II Project. The IVDA hereby delegates to the Agency the responsibility for
administering the Phase II Site Relocation Plan and verifying the eligibility for relocation
assistance benefits for each occupant of a Phase II Site Parcel and/or a Phase II Site
Condenmation Parcel. A determination of eligibility and the amount of any such relocation
payment to an Owner or other occupant of a Phase II Site Parcel and/or a Phase II Site
Condenmation Parcel shall not require review or approval by the IVDA. Determinations by the
Agency Staff and directions to the Relocation Consultant with respect to the implementation of
the Phase II Site Relocation Plan and the payment of relocation assistance under Government
Code Section 7260 et seq., and other applicable law to the occupants of each Phase II Site Parcel,
shall be conclusive and final. Provided the Agency is not in default hereunder, the Agency Staff
may issue a notice of displacement to any occupant of a Phase II Site Condemnation Parcel at
any time after condenmation proceedings have been initiated with respect to such Phase II Site
Condenmation Parcel.
(d) The Agency shall be responsible for paying for all amounts of just compensation
which shall be payable to the Owner of each Phase II Site Condemnation Parcel, either by way of
judgment in a condenmation proceeding, or negotiated purchase approved by the IVDA in
consultation with the Agency as set forth in Section 5(b) or Section 6(h). The Agency shall also
be responsible for paying for any interest on the judgment of condenmation for each Phase II Site
Condenmation Parcel, together with all court costs, expenses and legal fees waived or payable by
the IVDA in connection with any such Phase II Site Condemnation Parcel, including any appeal
of a final judgement by either the IVDA or the Owner of such Phase II Site Condenmation
Parcel.
(e) The Agency shall be responsible for paying for all amounts of costs and damages
to the Owner with the abandonment of any condemnation proceeding by the IVDA prior to the
entry of a final judgment of condenmation of a Phase II Site Condemnation Parcel.
Section 5.
Action By the IVDA on Each Phase II Site Condenmation Parcel.
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(a) The IVDA Staff shall consult with the Agency Staff and the Acquisition Agent
and Appraiser, as appropriate regarding all consultations for Owners of the Phase II Site
Condemnation Parcels in response to the Phase II Site Offer. Based upon such consultations the
IVDA Staff may direct the Agency Staff to prepare the appropriate form of a Phase II Site Parcel
Acquisition Agreement by and between the Owner and the IVDA, or the Agency, as applicable
with respect to each particular Phase II Site Condemnation Parcel.
(b) In the event that within a reasonable period of time following the transmittal of
the Phase II Site Offer the IVDA Staff in consultation with Agency Staff determines that the
Owner of a Phase II Site Parcel is unlikely to enter into a Phase II Site Parcel Acquisition
Agreement on terms reasonably acceptable to the IVDA or the Agency, as applicable, the IVDA
Staff shall schedule the acquisition of the Phase II Site Condemnation Parcel for consideration of
adoption of a resolution of necessity by the governing board of the IVDA and give notice of such
hearing date to the Owner of the Phase II Site Condemnation Parcel as provided in Code of Civil
Procedure Section 1245.235.
(c) Within ten (10) days following the giving of any notice by the IVDA Staff under
Section 5(b), the Agency shall deliver to the IVDA for deposit into a special fund of the IVDA
(the "HUB Project Special Fund: Phase II Site"), the amount in cash which is the fair market
value for the Phase II Site Condemnation Parcel as set forth in the Agency Appraisal. All
amounts on deposit in the HUB Project Special Fund: Phase II Site shall be held and invested by
the IVDA as public funds of the IVDA for the account of the Agency, and interest thereon shall
be payable on such invested funds to the account of the Agency. The proceeds of the HUB
Project Special Fund: Phase II Site shall be used and applied by the IVDA, as provided in
Section 6(h) or as otherwise provided, or to pay for the acquisition of one or more Phase II Site
Condemnation Parcels under the terms of a Phase II Site Parcel Purchase Agreement and/or for
any other costs payable by the Agency to the IVDA hereunder. The IVDA shall have no
obligation or responsibility to pay any cost or expense associated with the consideration or
acquisition of any Phase II Site Condemnation Parcel except from funds on deposit in the HUB
Project Special Fund or from other funds provided by the Agency to the IVDA for such
purposes. No other funds of the IVDA are pledged or made available hereunder to pay for any
such costs or expenses.
(d) In the event that the governing board of the IVDA may in its sole discretion
hereafter fail to adopt a resolution of necessity for a Phase II Site Condemnation Parcel, or
thereafter, order a condemnation proceeding dismissed or abandoned for any reason, the balance
of the HUB Project Special Fund: Phase II Site which corresponds to such Phase II Site
Condemnation Parcel shall be refunded and paid to the Agency, less any costs as may then be
payable by the Agency to the IVDA, as provided herein.
Section 6. Consideration of Adoption of One or More Resolutions of Necessity By
IVDA and Phase II Site Condemnation Proceedings.
(a) Concurrently with the approval of this Operating Memorandum No.2, the IVDA
has approved and accepted the Agency Appraisal for each Phase II Site Parcel and the IVDA
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adopts each such Agency Appraisal as the IVDA-approved appraisal for each such Phase II Site
Parcel.
(b) The IVDA hereby agrees to consider the acquISItIOn by condemnation, if
necessary of each Phase II Site Parcel for which the IVDA Staff and the Agency Staff after
mutual consultation, have determined cannot be acquired by further negotiated purchase;
provided however the IVDA reserves to the governing board of the IVDA the sole and absolute
discretion to make each of the findings required by Code of Civil Procedure Section 1245.030
and to adopt the appropriate form of a resolution of necessity with respect to a Phase II Site
Condemnation Parcel by a two-thirds (2/3) vote of all of the members of the governing board of
the IVDA.
( c) Provided the governing board of the IVDA has adopted a resolution of necessity
with respect to the acquisition of a Phase II Site Condemnation Parcel, the IVDA hereby
covenants and agrees to provide direction to IVDA special legal counsel and to exercise all
reasonable diligence in the supervision, conduct and prosecution of each condemnation
proceeding initiated in the name of the IVDA to acquire each Phase II Site Condemnation Parcel.
(d) Subject to the provisions of this Operating Memorandum No.2 condemnation
proceedings shall be initiated to acquire Phase II Site Condemnation Parcels in the name of the
IVDA and each final judgment in condemnation shall be entered in the name of the IVDA.
(e) At the time of filing a complaint in condemnation the IVDA for the acquisition of
any Phase II Site Condemnation Parcel, the IVDA shall deposit with the Clerk of the Superior
Court the amount of probable compensation indicated for the Phase II Site Condemnation Parcel.
Such amount shall be transferred by the IVDA from the HUB Project Special Fund: Phase II Site
(and from no other source of funds of the IVDA) to the Clerk of the Court at the time of filing
such complaint with instructions to the Clerk of the Court to invest such deposit of probable
compensation with the State Treasurer pending further instruction from the IVDA. In addition,
in the event that the Court or the IVDA may determine that additional amounts of probable
compensation shall be deposited with the Court, the Agency shall promptly remit such additional
amount of probable compensation to the IVDA for deposit with such Court.
(f) The Agency may request the IVDA to make application to the Court for a
prejudgment order for possession or a prejudgment order for inspection for any Phase II Site
Condemnation Parcel, and such orders may authorize entry by the Agency on the Phase II Site
Condemnation Parcel to conduct Agency Investigations and/or to construct the Phase II Project,
as applicable.
(g) The IVDA shall consult with the Agency as appropriate during all phases of the
condemnation proceeding and such consultations shall include regular status reports regarding
each condemnation proceeding and settlement discussions and negotiations of IVDA special
legal counsel and IVDA Staff with the Owner of each Phase II Site Condemnation Parcel.
(h) The Agency shall promptly remit to the IVDA upon receipt of a written invoice,
any sum which the IVDA has determined in its discretion is necessary or appropriate to pay to an
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Owner of a Phase II Site Condemnation Parcel under the terms of a stipulation for entry of
judgment in condemnation approved by the IVDA.
(i) At such time as the IVDA, using funds provided by the Agency, acquires fee title
interest in a Phase II Site Parcel or a Phase II Site Condemnation Parcel, by judgment in
condemnation or otherwise, the IVDA shall promptly transfer all of its right, title and interest in
such Phase II Site Parcel and/or Phase II Site Condemnation Parcel, as applicable to the Agency
by quitclaim deed.
Section 7. The provisions of each of the following sections of the Condemnation
Memorandum (listed below next to the Caption or heading of each such section) shall be
applicable to the Phase II Project and to each ofthe Phase II Site Parcels and each ofthe Phase II
Site Condemnation Parcels and to the undertaking of the Agency and the IVDA under this
Operating Memorandum No.2:
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Defaults
Operating Memorandum
Notices
Indemnification and Hold Harmless
Termination of Agreement
Invalidity of Any Provision
Approval and Effective Date of the Agreement
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THIS OPERATING MEMORANDUM NO. 2 TO THE REDEVELOPMENT
CONDEMNATION MEMORANDUM HAS BEEN DULY EXECUTED BY THE
AUTHORIZED REPRESENTATIVES OF THE PARTIES HERETO AS SET FORTH
BELOW.
IVDA
Inland Valley Development Agency
Date:
By:
Co-Chair
Date:
By:
Co-Chair
Approved as to Form:
By:
General Counsel
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Executive Director
Approved as to Form:
By:
Agency Special Counsel
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