HomeMy WebLinkAboutR32-Economic Development Agency
CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
FROM: Maggie Pacheco
Executive Director
SUBJECT: Home Depot, Inc. Redevelopment Project
Study and Exclusive Right to Negotiate
Agreement (Nortb Arden Gutbrie Home
Depot Commercial Project) (IVDA
Redevelopment Project Area)
DATE: Scptember 7, 2006
Svnonsis of Previous Commission/Council/Committee Action(s):
On July 24, 2006, the Mayor and Common Council and the Community Development Commission of tbe City of San
Bernardino approved a HUD Section 108 Loan Contract \\lith HUD and authorized the City to make said funds available
to tbe Agency for the purchase of the remaining private property in the North Arden Guthrie Area.
On August 24, 2006, Redevelopment Committee Members Estrada, Johnson and Baxter unanimously voted to
recommend that the Community Development Commission consider this action for approval.
Recommended Motion(s):
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(Community 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 and Exclusive Right to Negotiate Agreement ("Agreement") with
Home Depot, Inc. ("Developer") - IVDA Redevelopment Project Area
Contact Person(s):
Project Area(s):
Maggie Pacheco
IVDA Redevelopment Project Area
Phone:
(909) 663-1044
7
Ward(s):
Supporting Data Attached: iii Staff Report iii Resolution(s) iii Agreement(s)/Contract(s) 0 Map(s) D Letters
SIGNATURE:
Amount: $
)
). 7/] J/~,~'l'
I Maggie Pacbeco, Executive Director
N/A
Source:
N/A
N/A
FUNDING REQUIREMENTS:
Budget Authority:
, ~ ;"-
,1t< C, i ,~~,h ~j5(7)
Barbara Lindseth, Admin. Services Director
Commission/Council Notes:
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P;\Agtndas\Comm Dev Commission\CDC 2006\09-]8-06 Home Depot, Inc. Redevelopment Project Study &. ERN SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 09/1812006
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Agenda Item Number:
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ECONOMIC DEVELOPMENT AGENCY
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STAFF REPORT
HOME DEPOT, INC.
REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT
TO NEGOTIATE AGREEMENT
(NORTH ARDEN GUTHRIE HOME DEPOT COMMERCIAL PROJECT)
(IVDA REDEVELOPMENT PROJECT AREA)
BACKGROUND:
The Redevelopment Agency of the City of San Bernardino ("Agency") is the owner of forty-seven
(47) vacant lots ("Agency Property") in the area bounded by Highland Avenue, Arden Avenue, 20th
Street and Guthrie Avenue in the area commonly known as the North Arden Guthrie Area. Twenty-
five (25) parcels remain in private ownership ("Private Property") of which twenty-three (23) are
improved with a four-plex structure. (See attached map).
Arden Guthrie has been a problematic area for decades and one, which has deteriorated into an inner
city slum associated with high crime, vandalism and all the problems resulting from high-density
apartment dwellings and absentee landlords. For more than a decade, considerable sums of money and
resources have been expended in the North Arden Guthrie Area. It is estimated that approximately $10
million has been spent to date and yet, the area still remains severely blighted and associated with all
the accompanying social ills.
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Recognizing the need for the Agency to complete the acquisition of the remaining Private Property,
combine it with the AgeI1cy Property (the "Arden Guthrie Site"), demolish and clear the remaining
four-plexes and make it available for productive development, on June of 2003, the Mayor and
Common Council ("Council") authorized the application submittal for a HUD Section 108 Loan in the
amount of $7.5 million. After much detailed work by Staff to tailor the loan to this specific area,
without identification of a specific project or development entity upfront, Staff submitted the
application to HUD, which was finally approved by HUD in May 2006. In July 2006, the Council
approved the HUD Loan Contract with HUD and authorized the City to loan the funds to the Agency
for the acquisition of the Private Property.
In July 2006, the Community Development Commission ("Commission") authorized the Agency to
proceed with the purchase of the Private Property and on August 17, 2006, Villegas Appraisal
Company received written notification to proceed with appraising the Private Property. Since the
renewed activity in 2003 by the Agency, the Commission, and the Council, there has been new interest
in the Arden Guthrie Site by developers and a few proposals and suggestions have since been received
by the Agency including hotels, government buildings, sports complexes, and shopping centers that
have all been discussed and evaluated by City/Agency Staff. Unfortunately, those proposals that have
sought to incorporate the soccer complex into the development, which would have been a tremendous
boost for the tourism industry in San Bernardino, have lacked the financial wherewithal to perform.
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P:\Agendas\Comm Dcv Commission\CDC 2006\09-18-06 Home Depot, Inc. Redevelopment Project StLldy & ERN SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number: R.3~
Economic Development Agency Staff Report
Home Depot. Inc. - Redevelopment Project Study & ERN
Page 2
'..... CURRENT ISSUE:
Three (3) months ago, the Agency was approached by Home Depot, Inc., a Delaware corporation (the
"Developer") together with Mr. Scott Beard and Mr. Mark Sandoval (the "Co-Developer") and
informed of the Developer's desire to acquire the Arden Guthrie Site and utilize eleven (I I) acres for
the purpose of building a new 139,000 square foot Home Depot to take care of the burgeoning market
in the east. Home Depot has no intention of vacating either of their other two (2) stores in San
Bernardino and are therefore desirous of entering into a Redevelopment Project Study and Exclusive
Right to Negotiate Agreement ("Agreement") with the Agency for the purpose of studying this
development. The Developer will also, but is under no obligation to, negotiate with the Co-Developer
for the development of the remaining six (6) acres, which would be improved with the soccer complex
in mind, to include youth oriented retail, and restaurants with access to the soccer fields immediately to
the south. The Developer would guarantee development of the six (6) acres or the entire Arden
Guthrie Site. This would considerably enhance the area that is visited by tens of thousands of visitors
to San Bernardino on an annual basis. Salient points of the Agreement include the following:
. The Developer will develop the entire Arden Guthrie Site with a quality development to the
satisfaction of the City and the Agency, with an estimated value of not less than $17 million.
. The Developer intends to assist the City in a financial manner to help support the soccer fields,
either through naming rights, sponsorships or some other manner.
'-. . The Developer agrees to pay the greater of fair market value or $5,800,000 for the Arden
Guthrie Site, whichever is greater. The Developer will also have to agree to comply with
certain covenants imposed by HUD related to the Section 108 Loan. The Developer will pay
the sum of $58,000 to the Agency by way of a non-refundable deposit, which will be applied
against the purchase price, should that event occur.
. The Agreement is for a period of twenty-four (24) months with a six (6) month extension to
give sufficient time for the Environmental Impact Report to be completed and for a necessary
zone change, from PCR (Public/Commercial Recreation) to CG-1 (Commercial General), to
take place. The Agency will coordinate the California Environmental Quality Act (CEQA)
process at the cost of the Developer.
. All other project study and third (3m) party costs are at the sole cost of the Developer.
. The ultimate goal of this Agreement is the execution of a Disposition and Development
Agreement between the Agency and the Developer.
ENVIRONMENT AL IMPACT:
The Study Agreement is categorized as Statutory Exemption under CEQA per public Resource Code
Sections 21102 and 21150.
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COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number: Il..'h"
Economic Development Agency Staff Report
Home Depot, Inc, - Redevelopment Project Study & ERN
Page 3
',- FISCAL IMPACT:
None at this time.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
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/"1 . / /
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v {'-I.-- ~{L..c /<--
aggie Pacheco, Executive Director
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COMMISSION MEETING AGENDA
Meeting Date: 09/1812006
Agenda Item Nnmber: -RJA.
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RESOLUTION NO.
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 AND EXCLUSIVE RIGHT TO
NEGOTIATE AGREEMENT ("AGREEMENT") WITH HOME DEPOT, INC.
("DEVELOPER") - IVDA REDEVELOPMENT PROJECT AREA
WHEREAS, the Agency owns certain property within the Inland Valley Development
Agency (IVDA) Redevelopment Project Area (the "Project Area") which together with the
10 privately owned property as generally depicted in Exhibit "A", attached to the Agreement,
11 comprises (the "Arden Guthrie Site"); and
12 WHEREAS, the Agency and the Developer are interested in exploring the development
13 feasibility of the Arden Guthrie Site so as to foster the community economic development goals
14 and objectives of the City of San Bernardino (the "City") as it relates to the Redevelopment Plan
15 for the Project Area; and
16 WHEREAS, the Developer is qualified to assist the Agency to undertake the development
17 feasibility for a coordinated and economically sustainable redevelopment project on the Arden
18 Guthrie Site, which will require specific study, evaluation and planning by the City and the
19 Agency, as applicable, of appropriate and feasible community redevelopment program alternatives;
20 and
21 WHEREAS, in accordance with the provisions of the California Environmental Quality Act
("CEQA"), a Redevelopment Project Study and Exclusive Right to Negotiate Agreement (the
"Agreement") is exempt from the provisions ofCEQA.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO DOES HEREBY RESOL VB, DETERMINE AND ORDER, AS FOLLOWS:
Section 1.
The Community Development Commission ("Commission") hereby
approves the Agreement by and between the Agency and the Developer in the form as presented at
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1 the meeting of the Commission at which this Resolution is adopted and hereby authorizes the
2 Executive Director of the Agency to execute the Agreement on behalf of the Agency together with
3 such technical and conforming changes as recommended by the Executive Director and approved
4 by the Agency Counsel.
The Commission hereby finds that the Agreement is exempt from CEQA.
The Resolution shall become effective immediately upon its adoption.
5 Section 2.
6 Section 3.
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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 AND EXCLUSIVE RIGHT TO
NEGOTIATE AGREEMENT ("AGREEMENT") WITH HOME DEPOT, INC.
("DEVELOPER") - IVDA REDEVELOPMENT PROJECT AREA
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a
meeting
8 thereof, held on the day of , 2006, by the following vote to wit:
9 Commission Members: Aves Nays Abstain Absent
10 ESTRADA
11 BAXTER
12 VACANT
13 DERRY
14 KELLEY
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15 JOHNSON
16 MC CAMMACK
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20 The foregoing resolution is hereby approved this
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Secretary
day of
,2006.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
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25 Approved as to Form and Legal Content:
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By:
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Agency' 0 sel
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REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AND
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
(ARDEN GUTHRIE HOME DEPOT COMMERCIAL PROJECT)
This Redevelopment Project Study and Exclusive Right to Negotiate Agreement is dated as of
September 18, 2006 (this "Agreement"), and is entered into by and among Home Depot, Inc., a
Delaware corporation (the "Developer"), and the Redevelopment Agency of the City of San
Bernardino, a public body, corporate and politic (the "Agency"). The Developer intends to act in
cooperation with Mr. Scott C. Beard on behalf of Gerald W. Beard Realty, Inc. and Mr. Mark
Sandoval (collectively, both individuals are collectively referred to herein as the "Co-Developer").
The Co-Developer is not a party to this Agreement nor is it an intended third party beneficiary under
this Agreement.
RECITALS
A. The Agency desires to encourage and effectuate the redevelopment of certain real
property located within the area commonly referred to as the North Arden Guthrie Area of the City of
San Bernardino and comprising approximately 16.5 acres, generally bounded by Highland Avenue,
Arden Avenue, 20th Street and Guthrie Avenue (the "Arden Guthrie Site"), that is depicted on the
"Study Area Map" attached hereto as Exhibit "A" which illustrates the "Arden Guthrie Site" for
purposes of this Agreement; and
B. The Arden Guthrie Site lies within the Redevelopment Project Area of the Inland
Valley Development Agency (the "Project Area"), and is subject to the Project Area's governing
redevelopment plan (the "Redevelopment Plan") and its Rules for Owner Participation as adopted by
the Inland Valley Development Agency ("IVDA"); and
C. The City of San Bernardino (the "City") is the fee owner of those certain soccer fields
that were improved with funds made available by the Agency (the "City Soccer Fields") consisting of
approximately fifty-two (52) acres of improved land. The City Soccer Fields are located at the
northeast comer of Pacific Street and Arden Avenue (as depicted on Exhibit "A" attached hereto), and
are located adjacent to the Arden Guthrie Site; and
D. The Developer intends to explore opportunities to assist the City in some financial
manner to provide support to the City Soccer Fields whether through the payment of naming rights,
providing sponsorship or such other means as the City and the Developer may agree. Such provisions
shall be negotiated by the Agency with the Developer and included within the Project DDA, as
hereinafter defined; and
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E. The Developer and the Co-Developer intend to jointly develop the Arden Guthrie Site
pursuant to a separate agreement by and between said Developer and Co-Developer. However, both
this Agreement and the Project DDA, as hereinafter defined, shall include only the Developer as a
party. The Co-Developer shall have no rights or remedies against the Agency under either this
Agreement or the Project DDA; and
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F. The Agency and private persons or entities are the fee owners of those certain parcels of
real property consisting of approximately 16.5 acres, in the aggregate which taken together make up
'- the Arden Guthrie Site. The Arden Guthrie Site is located at the southwest quadrant of the point of
intersection of Highland Avenue, Highway 30, and Arden Avenue. For purposes of this Agreement,
those parcels of the Arden Guthrie Site that are owned in fee by the Agency shall collectively be
referred to as the "Agency Property," and those parcels of the Arden Guthrie Site that are owned in fee
by persons or entities other than the Agency shall collectively be referred to as the "Private Property";
and
G. The area within the Study Area Map consists of the Arden Guthrie Site, which is
generally underutilized, in poor physical condition, and contributes to the blight that has existed within
the Project Area since the date ofthe adoption of the Redevelopment Plan to this date; and
H. The project concept plan (defined herein as the "Project Concept Plan") involves the
Arden Guthrie Site, and contemplates and proposes the purchase by the Developer from the Agency of
the Agency Property. The Agency and the Developer will work closely together to determine if the
most cost-efficient result will be obtained through a negotiated purchase of the Private Property by the
Developer or the acquisition by the Agency. The Agency and the Developer will work together in
good faith to acquire the Private Property. In the event that the cost of the acquisition of the Private
Property makes proceeding with the project undesirable for either party, either party may terminate this
Agreement as further provided in Section l.c.(2). These acquisitions would be for development by the
Developer that would complement the build-out of the Project. The Developer will negotiate with the
Agency for the Agency Property, if an Agreement is reached between Developer and Agency, it may
be documented by a Project Disposition and Development Agreement (the "Project DDA"). The
'-... Project Concept Plan contemplates a commercial and retail center with a Home Depot store of
approximately 139,000 square feet as the major anchor tenant and such other complimentary retail and
commercial uses including sit-down restaurants; and
1. The Arden Guthrie Site is situated within the Project Area, a joint powers authority,
which was formed pursuant to Health and Safety Code Sections 33492.10, et seq., as a local
redevelopment authority under the federal military base reuse laws for the purpose of assisting in the
conversion and civilian reuse of the former Norton Air Force Base and the elimination and prevention
of blight affecting other lands within a three (3) mile radius of the boundaries of the former Norton Air
Force Base; and
1. The NDA, the City and the Agency have entered into an agreement entitled the "2003
Redevelopment Cooperation Agreement," dated as of October 8, 2003 (the "Redevelopment
Cooperation Agreement"), pursuant to which the NDA has delegated to the Agency the right, power
and authority to act for and on behalf of the NDA for the purposes of exercising the redevelopment
powers of the NDA within a portion of the Project Area as designated in Exhibit "A" attached hereto
(the "Agency Implementation Area"); and
K. The Agency Implementation Area includes the Arden Guthrie Site and the Agency
intends to initiate additional studies and proposals to address a number of issues of community concern
in the Agency Implementation Area relating to the elimination and prevention of the spread of blight
.- from the Agency Implementation Area; and
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1. The Agency is entering into this Agreement, without limitation, to facilitate the
assembly of the Private Property with the Agency Property into developable parcels of land so as to
,-,,, foster the community economic development goals and objectives of the Agency and the City,
including the elimination and the spreading of blight, as the same relates to the Project Area, and the
Agency has designated the area to be included for such study purposes to be properties within the
perimeters of the Arden Guthrie Site. The Developer has represented to the Agency as an inducement
for the obtaining of this Agreement from the Agency, that, based upon the facts as presently known to
the Developer, Developer intends to pay the greater of the appraised fair market value or $5,800,000
for the entire 16.5 acres that comprise the Arden Guthrie Site, all subject to the final terms and
conditions of the Project DDA, if approved by the Agency; and
M. In connection with the preparation of the Project DDA and prior to consideration of the
approval of such Project DDA, the Agency will prepare and circulate an initial study (the "Initial
Study") in accordance with the California Environmental Quality Act of 1970, as amended ("CEQA");
and
N. The Agency was instrumental in receiving from the United States Department of
Housing and Urban Development ("HUD") a proposed $7,500,000 HOD Section 108 Loan Contract
(the "108 Loan") that will be used in part to acquire the remaining Private Property within the Arden
Guthrie Site. The I 08 Loan will require the City and the Agency to pledge certain assets and funds as
additional collateral for the 1 08 Loan, and the 1 08 Loan will further require any private party acting as
the developer to enter into such agreements that will be subject to review and approval by HOD
wherein such developer would enter into a binding and enforceable (i) covenant as to the minimum
assessed valuation of the completed private development and (ii) operating covenant requiring the
.., businesses to be located therein to remain in operation for a minimum number of years which
obligation shall be secured in part with a letter of credit in form and content acceptable to HUD and
such other satisfactory personal and/or corporate guaranties as may be required by HUD; and
O. Based upon information furnished by the Developer to the Agency together with further
investigations conducted by the Agency, the Developer is qualified to assist the Agency to undertake
the study of and plans for a coordinated and economically sustainable redevelopment project in the
Project Area, including the Arden Guthrie Site, which will require further specific study, evaluation
and planning by the City and Agency, as applicable, of appropriate and feasible community
redevelopment program alternatives; and
P. The Developer and the Agency believe it is appropriate for the Agency, in consultation
with the Developer, to review by agency staff (the "Agency Staff') those studies, reports and
investigations conducted by the Developer as the Project Concept Plan Study costs (collectively, the
"Project Concept Plan Study Costs") as part of a program for the study of feasible redevelopment
programs for the Arden Guthrie Site, 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:
I. The Negotiation Period and the Term of Agreement; Non-Refundable Deposit.
a. The rights and duties of the parties established by this Agreement shall commence
following the approval of this Agreement by the governing body of the Agency after such time as this
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Agreement has been fully executed by the parties within the period of time authorized in Section 17
(such date being the "Effective Date"). This Agreement will continue in effect until a date which is
'-~ twenty-four (24) months from the Effective Date unless such date shall have been first extended as
authorized under Section l.b.(2) or this Agreement is otherwise terminated as provided in Section l.b.
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. This Agreement shall automatically terminate, without further notice or action, and be
of no further force or effect twenty-four (24) 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 date that the Project DDA becomes effective; or
(2) the parties each agree to extend the term of this Agreement in writing to a
specific date not later than six (6) months after the scheduled termination date, subject to the Agency
Executive Director first making a finding through reasonable discretion that satisfactory progress is
being made to complete the Project DDA as set forth in Section 3.
c. This Agreement can be terminated prior to the twenty-four (24) months following the
Effective Date only if:
'-. (I) the Executive Director determines through the exercise of reasonable discretion
that either I) the Project Concept Plan and the other financial feasibility information or 2) the business
plan to be submitted by the Developer to the Executive Director within ninety (90) days from the
Effective Date of this Agreement as further provided in Section 3.e.(A) is not satisfactory to warrant
the continuation of discussions for a Project DDA. If the Executive Director makes this determination,
the Executive Director shall have the right to terminate this Agreement immediately upon (i) the
facsimile transmission by the Executive Director of written notice of termination to the Developer, or
(ii) upon receipt of written notice of termination through other means from the Executive Director to
the Developer; or
(2) either party determines in their sole and absolute discretion that the costs of
acquiring the Private Property, or the inability to legally proceed with the acquisition of the Private
Property due to the possible approval of Proposition 90 on the November 7, 2006, general election,
render the Private Property acquisition infeasible or undesirable, as determined by either party, to
proceed any further with the acquisition thereof; either party may deliver a notice of termination to the
other party which notice oftermination shall be effective upon receipt thereof by the other party; or
(3) a party terminates this Agreement as provided under Section 2.c., Section 20 or
Section 21, as applicable.
d. The Developer has delivered to the Agency a check in the amount of $58,000 which
,- shall be deemed to be non-refundable deposit under all circumstances whether or not this Agreement is
_ terminated in the manner as provided in section l.b. above and regardless of whether a final Project
DDA is ever approved and executed by the Agency. The Developer acknowledges that the payment of
the $58,000 deposit shall be received by the Agency as partial consideration for the Agency having
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been precluded from offering the properties owned by the Agency and which are identified herein as .
the Agency Property to other prospective purchasers and developers. Such $58,000 deposit shall be
applied towards the purchase price of the Agency Property as may be provided in the Project DDA if it
is approved by the governing body ofthe Agency.
2. Developer Acknowledgments.
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
from the Developer to convey any interest in the Agency Property or the Private Property to the
Developer. Any studies relating to the Arden Guthrie Site, the Agency Property or the Private
Property, and the Project Concept Plan 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 or the City.
_ b. The qualifications and identity of the Developer are of particular concern to the
Agency. The Agency has relied on these qualifica~ions 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. 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 (for purposes hereof the term "Agency Executive Director" shall
mean the "Agency Executive Director" or such other title for the person who is then acting as the chief
executive staff official of the Agency, or his/her duly delegated representative), which approval shall
not be unreasonably withheld, provided that the Developer can demonstrate to the reasonable
..... satisfaction of the Agency Executive Director that the assignee has the financial capability and the
experience necessary to develop the project to the same standard of quality that would have been
undertaken by the Developer. Notwithstanding the foregoing, the Developer shall have the right to
assign this Agreement-and its rights hereunder to an entity, which controls, is controlled by or is under
common control with the Developer, or its principals, members or affiliates.
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 in control of the Developer, as well
as any and all material 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 material change in interest or
control, 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 or subsequent to such change
(after the Developer has received reasonable notice and an opportunity to cure such change to the
reasonable satisfaction of the Agency Executive Director), the Agency may terminate this Agreement
by serving written notice of such termination, referencing this Section, on the Developer.
3. Project Concept Plan Study.
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a. From and after the Effective Date, the Developer shall initiate the preparation of a
feasibility study for the redevelopment of the Project Concept Plan proposed by the Developer which
shall include a preliminary financial feasibility study and a business plan relating to the Home Depot
commercial center (the "Project Concept Plan Study"). As soon as practical following the Effective
Date, the Developer shall retain the services of a firm or firms of community redevelopment planning,
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engineers, architects, financial consultants, land use planners and environmental consultants to produce
all necessary reports, studies and environmental documentation and other investigations, surveys and
reports appropriate in connection with the Project Concept Plan Study and the evaluation of the Project
Concept Plan proposed by the Developer and for the processing of all entitlements required to be
obtained from the City together with the required environmental review and processing. All third party
costs incurred by the Developer as part of the preparation of the Project Concept Plan Study shall be
paid solely by the Developer in accordance with Section 4 of this Agreement.
The Agency shall undertake compliance with all requirements of CEQA including the
preparation of an initial study based upon the Project Description and Project Concept Plan provided
by Developer. The Developer shall assist the City and the Agency in the identification of appropriate
CEQA consultants and pay for the cost of those consultants as retained by the City or the Agency, as
applicable. The Agency either as the "lead agency" or with the City as the "lead agency" shall retain
the selected consultants and submit monthly invoices to the Developer for the payment of all such
consultant costs that are payable to the consultants. Nothing contained herein shall commit the Agency
or the City as to the final result of the CEQA analysis nor to the form of the final CEQA compliance
document nor to the form and extent of the studies, reports and conclusions as may ultimately be
required for the completion ofthe CEQA analysis for the Project Concept Plan.
b. The Developer may modify the description of the Project Concept Plan at any time;
provided, however, that substantial modifications of the Project Concept Plan shall:
(i) be subject to the acceptance and approval of the Agency Executive
Director which approval shall not be unreasonably withheld, conditioned or delayed;
(ii) depending on the nature of such a modification, a suitable modification
of the environmental and other elements of the Project Concept Plan Study as modified
may also be indicated.
The Agency and/or the Agency Executive Director may request that the Developer consider
modifications to the description of the Project Concept Plan from time-to-time. The final form of each
such modification shall be subject to the reasonable approval of the Agency Executive Director and the
Developer.
c. The Agency shall on a best efforts basis during the course of the Project Concept Plan
Study consider the specific terms and conditions of redevelopment assistance which the Developer
may propose to include in the Project DDA; provided, however, that the Agency reserves the sole and
absolute discretion to accept, reject or modify any such proposed term or condition to the Project DDA
and to approve or reject the Project DDA in its sole and absolute discretion.
d. All third-party consultants, if any, retained and paid for by the Agency to review any
study, report or document prepared by or on behalf of the Developer as part of the Project Concept
Plan 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. The Agency shall have the right to use and republish
such work product for any purpose subject to the reasonable consent of Developer.
,_ e. Subject to the terms and conditions ofthis Agreement, the Developer shall undertake an
economic feasibility study of the Project Concept Plan as part of the Project Concept Plan Study
consisting of the elements as set forth below:
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(A) preparation by the Developer in consultation with the Agency of a financial
feasibility study or other similar analysis for the development of the Project Concept Plan on the Arden
Guthrie Site, setting forth the plan for the acquisition of the Agency Property and the Private Property
(or anyone of them) and the phasing of the Project Concept Plan development, if any, and an estimate
of development costs, project income and a pro forma statement of Project Concept Plan capital return
including, without limitation, the following:
(1) final projections of debt and equity that will be required of the Developer to
undertake the Project Concept Plan including construction and permanent
financing of the private structures and infrastructure financing for all publicly
owned facilities; and
(2) final projection of a financial contribution to support the City Soccer Fields; and
(3) final projections of public (City, State and Federal) financial assistance
anticipated for the Project Concept Plan including source, dollar amount, timing
of the necessity for such funds and the probable repayment sources; and
(4) final projections of overall development costs, including private and public
improvements, Project Concept Plan assessed values, revenues designated by
sources and dollar amounts, transient occupancy taxes, sales and property taxes
for the commercial development to be comprised of the Home Deport store and
other retail and commercial to be complimentary to the uses anticipated within
the commercial development; and
~
(5) appropriate documentation or execution of the appropriate documents to enable
the Agency to fulfill the requirements from HUD for the 108 Loan, including,
but not limited to, the actual language to implement the various covenants of the
Developer as may be required by HUD and the form, content and dollar amount
of any letters of credit as may be required by HUD to be provided by the
Developer.
An initial draft of a document including the study elements identified in subparagraph (I)
through (4) above shall be completed by the Developer and submitted to the Agency within one
hundred eighty (180) calendar days following the Effective Date. Thereafter, provided that the Agency
Executive Director has not terminated this Agreement due to the insufficiency or inadequacy of the
Project Concept Plan as set forth in Section I.b.(3), the parties shall refine the draft document of thca
Project Concept Plan as submitted by the Developer in accordance with a schedule to be mutually
agreed upon for the refinement of the work for such studies, including the content and scope thereof, to
be mutually approved by the parties, which approval shall not be unreasonably withheld.
(B) The Developer in consultation with the Agency shall prepare a proposed
conceptual development plan for the Project Concept Plan, to include, without limitation:
(I)
proposed land use categories on a parcel-by-parcel basis, including proposed
zoning and General Plan changes, if any, necessary to accommodate the Project
Concept Plan to accommodate the intended commercial development on the
Agency Property; and
.........c
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(2)
proposed time schedule and cost estimates for the development and proposed
public and private infrastructure upgrades, proposed publicly owned facilities,
public improvements, public infrastructure and private development; and
'-
(3) proposed financing plan identifying the timing of receipt by the Developer and
the Agency, as applicable, of the financing sources for all private and public
improvements proposed in the Project Concept Plan, by phase, if applicable; and
(4) proposed terms and price for the acquisition of the Agency Property, if any, as
may be deemed necessary for the Project Concept Plan which based upon
representations made by the Developer to the Agency as an inducement to
obtain this Agreement shall be equal to the greater of (i) the appraised fair
market value of the Agency Property and the other Private Property that
comprise the Arden Guthrie Site or (ii) $5,800,000; and
(5) proposed financing plan for the acquisition by the Developer and/or the Agency
of any Private Property as necessary for the Project Concept Plan.
The conceptual development plan for the Project Concept Plan 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.
"-
f. Within one hundred twenty (120) calendar days after the Effective Date, the Developer
shall inform the Agency in writing whether, based on the information set forth in Section 3.e.(A), the
Developer believes that the Project Concept Plan is feasible. 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 Arden Guthrie Site may be set forth on terms mutually acceptable to the parties
as may be contained in the Project DDA subject to the final approval thereof by the parties each at
their sole and absolute discretion.
g. The Developer shall submit each of the items of information described in this Section to
the Agency Executive Director within the time periods set forth above. Within fifteen (15) calendar
days after receipt of any such information, the Agency Executive Director shall determine whether
such information is satisfactory. If the specific item of information is unsatisfactory to the Agency
Executive Director, he or she shall notify the Developer in writing of the reason or reasons 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 after receipt of such information by the Agency, the information as submitted by the
Developer shall be deemed submitted in acceptable form to the Agency. The determinations to be
made by the Agency Executive Director under this subsection shall in no manner bind or constitute the
approval of the Agency regarding, without limitation, plans, specifications, engineering, architecture,
uses, tenants, sale prices, rental rates, the Project Concept Plan or the Project DDA.
h. On or before the expiration of the Negotiating Period and prior to the adoption of the
Project DDA, the Developer shall submit a written proposal to the Agency setting forth the manner in
,'-' which the Developer intends to provide some form of financial support or assistance for the City
...... Soccer Fields.
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4. Project Concept Plan Study Costs.
-.. For the purposes of this Agreement, "Project Concept Plan Study Costs" shall mean and refer
to the 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 Concept Plan Study including the
environmental review and processing and the preparation of all required studies and reports in
furtherance of the entitlements to be requested by the Developer from the City or Agency. Project
Concept Plan Study Costs shall include third party costs incurred by the Developer in connection with
the preparation or submission of any information relating to the Project Concept Plan on which any
element of the Project Concept Plan Study may be based, including civil engineering expenses, traffic
consultant fees, architectural fees, financial consultants, accounting fees and similar expenditure
items. In addition to the Project Concept Plan Study Costs incurred and paid by the Developer, each
party shall bear its own legal fees and costs and for consultants and service providers, which such party
engages, including, but not limited to, the costs to borne by the Agency pursuant to paragraph 3.d.
above. Notwithstanding the foregoing, the Developer understands that the Agency may request, and
the Developer shall consider, that the Developer enter into one or more separate written agreements
pursuant to which the Developer would reimburse the Agency for specifically budgeted, identified and
capped third party independent consultant costs which the Agency may desire to enter into based on
staffing unavailability for purposes of undertaking a comprehensive review the Project Concept Plan
Study.
5. Obligations 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 Concept Plan, including, without limitation,
the selection of the design of improvement elements as appropriate for the Project Concept Plan in
addition to any commercial or retail elements of the Project Concept Plan; and
b. Review and provide the Project Concept Plan Study information described in Section 3
and 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 in accordance with Section I); and
c. Consult with the Agency and the Agency Executive Director on a regular basis and
keep the Agency and the Agency Executive Director advised on the progress of the Developer in
completing its obligations under this Agreement.
6. Agency Acknowledgments.
The Agency hereby acknowledges and agrees that no provision of this Agreement shall be
deemed to be an offer by the Developer as an acceptance by the Developer of any offer or proposal
from the Agency to purchase any interest in the Agency Property, in the Private Property or in, on or
near the Arden Guthrie Site. Any studies undertaken by the Agency not relating to the Arden Guthrie
Site shall be the sole responsibility of the Agency.
'....,
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7. Obligations of Agency.
- a. The Agency currently deems the disposition of the Agency Property, the acquisition of
the Private Property and the redevelopment of the Arden Guthrie Site for a feasible Project Concept
Plan to be appropriate, and the Developer appears to be well qualified to undertake the task of planning
the details for the acquisition of the entire Arden Guthrie Site, including the sale by the Agency to the
Developer of the Agency Property.
b. During the Negotiation Period, and subject to the Agency's compliance with the
California Community Redevelopment Law ("CRL") and the Owner Participation Rules of the IVDA
pursuant to the Redevelopment Plan regarding the rights of owners and tenants within the Project Area,
the Agency shall negotiate exclusively with the Developer with respect to the Arden Guthrie Site
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
Concept Plan on the Arden Guthrie Site. 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 any of the Agency Property (in whole or in part) or redevelop the
Arden Guthrie Site, and from considering other redevelopment proposals for the Arden Guthrie Site
with third persons or entities; provided, however, any person may submit to the Agency and the
Agency may consider any proposal for the disposition and/or redevelopment of any lands adjacent to
the Arden Guthrie Site. Nothing contained herein shall be interpreted to prevent or limit the
requirement and the ability of the Agency to negotiate with and obtain property interests in any real
property or business interest located within the Arden Guthrie Site when such third party is exercising
their rights pursuant to the Owner Participation Rules of the IVDA as required under the CRL.
'c~._..>
c. During the Negotiation Period, the Agency may in its sole discretion, elect to acquire
any Private Property as the Agency may deem appropriate on such terms and conditions as the Agency
may approve. Nothing herein shall be deemed to be a commitment or understanding by the Agency to
the Developer to acquire any such Private Property as may be offered for sale or which otherwise may
become available for acquisition during the Negotiation Period and the Agency shall not be deemed to
have appropriated or made available any funds therefore.
.-
d. Nothing in this Agreement shall bind the Agency to, or be construed to be a
commitment by the Agency to, exercise its power to acquire property pursuant to Health and Safety
Code section 33391 or to exercise its power of eminent domain with regard to any particular parcel or
parcels comprising the Arden Guthrie Site; provided, however, that there has been no change in either
State or federal law that would either preclude the exercise of the power of eminent domain by the
Agency or seek to impose any financial penalty upon the Agency or the City in the event either the
Agency or the City were to exercise the power of eminent domain to acquire any of the Private
Property. As may be further provided in the Project DDA, the Agency may be requested, however, to
consider in good faith, consistent with any applicable provision oflaw, any request from the Developer
that the Agency exercise its power of eminent domain with regard to any particular parcel or parcels of
the Private Property comprising the Arden Guthrie Site. In no event shall the Agency have any
liability to the Developer for the Agency's failure to act upon the Developer's request, nor shall the
Agency exercise its power of eminent domain unless and until the governing board of the Agency (the
"Agency's Board") has duly considered the evidence before it as to whether the affected property is
necessary for a public use under applicable federal and State laws and, in the exercise of the sole and
absolute discretion of the Agency Board, has adopted a resolution of necessity after a duly noticed
public hearing and has otherwise complied with the provisions of the California Eminent Domain Law,
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,,_.
Code of Civil Procedure Section 1230.010, et seq. The Project DDA shall additionally set forth the
financial obligations of the Developer for the payment of the costs of such eminent domain
proceedings, including appraisal costs, expert witness fees and legal expenses, whether through the
purchase price of the property so acquired or otherwise.
'-
e. 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 Arden Guthrie Site except for the Arden Guthrie
Site. Consideration of the redevelopment of the Project Area under the terms of the Redevelopment
Plan shall remain in the sole and exclusive purview of the Agency. The Agency may also provide any
other information in its possession that would customarily be furnished to persons requesting
information from the Agency concerning its activities, goals and matters of a similar nature, or as
required by law to be disclosed upon request.
8. Agency 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 Arden Guthrie Site that are in the possession of the Agency.
b. Use its best efforts to provide appropriate comment to the Developer with respect to one
or more conceptual development plans, as may be proposed by the Developer for the Project Concept
"--. Plan, and the redevelopment of the Arden Guthrie Site, including, but not limited to, conceptual plans
or studies of the vacation, realignment or abandonment of public property, rights-of-way and facilities,
the installation and improvement of public improvements and environmental evaluation of the Project
Concept Plan.
c. Use its best efforts to provide the Developer with limited access to those portions of the
Agency Property or the Private Property after it has been acquired by the Agency during the
Negotiation Period for the purpose of conducting customary due diligence investigations thereon,
including environmental investigations of the subsurface or any stnicture thereon. These rights will be
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 the Developer with information or copies of studies
performed or to be performed relative to the Project Area.
e. Use its best efforts to formalize the Project DDA with the Developer, wherein the
Agency agrees to transfer to the Developer the Agency Property for such consideration to be agreed
upon.
f. Use its best efforts to assist the Developer in obtaining the entitlements necessary to
develop the Project Concept Plan on the Arden Guthrie Site but without the incurring of any
independent consultant or legal expenses.
--
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.......,..
g. Use its best efforts without the incurring of any consultant or legal expenses to utilize
Agency Staff personnel to expedite compliance under CEQA for the Project Concept Plan in addition
to the CEQA compliance for any zoning changes, adoption of a specific plan (the "Specific Plan") if
required by the Developer, General Plan amendments and all other entitlements necessary for the
development of the Project Concept Plan on the Arden Guthrie Site, suggested by the Developer in its
proposed conceptual development plan, referred to in Section 3.e.(A) and (B) above, or at any other
time during the Negotiation Period.
9. Negotiation of Project DDA.
During the Negotiation Period, the Agency and the Developer shall negotiate diligently and in
good faith to prepare and attempt to enter into a Project DDA. Both of the parties shall exercise best
efforts to complete discussions relating to the final terms and conditions of the Project DDA and such
other matters, as may be mutually acceptable to the parties for the redevelopment of the Project
Concept Plan on the Arden Guthrie Site, prior to the expiration of the Negotiation Period, but neither
party, after such diligent and good faith negotiations, shall be bound by any term or provision of this
Agreement to complete any such negotiations or to execute any final Project DDA.
10. Consideration for this Agreement and Reservation of Rights.
In consideration for the Agency's 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 non-confidential or non-attorney-client privileged information generated by the Developer or its
consultants regarding the Project Concept Plan or the Arden Guthrie Site. Notwithstanding the
..... foregoing, the Developer shall provide all information required under Section 3.e. in its entirety as set
forth therein and in accordance with Section 11. All information as may be provided by the Developer
to the Agency which is of a confidential nature shall be subject to the provisions of said Section 11
which provides that the Agency agrees to maintain the confidentiality of any financial and/or
proprietary information of the Developer that is exempt from disclosure as a Public Record pursuant to
Government Code Sections 6254.15 and 6255. 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 fmally
approved by the Agency for any reason, neither party shall be under any further obligation to the other
party regarding the disposition, acquisition, reuse, redevelopment or development of the Project
Concept Plan or the Arden Guthrie Site.
11. Planning and Design; Related Acknowledgments of the Parties.
Certain development standards' and design controls for the Project Concept Plan 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 Concept Plan and the redevelopment of the
Arden Guthrie Site must conform to the City's development, design and architectural standards. The
Agency Staff shall use best efforts to cooperate with the Developer's professional associates in
providing information and assistance in connection with the Developer's preparation of drawings,
plans and specifications. Nothing in this Agreement shall be considered approval of any plans or
specifications for the Project Concept Plan or the Arden Guthrie Site, itself, by either the Agency or
the City.
,.,-,.
'-.
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12. Developer Financial Disclosures.
- The Developer acknowledges that it may be requested to make certain confidential financial
disclosures to the Agency, its staff or legal counsel, as part of the financial due diligence investigations
of the Agency relating to the potential disposition of the Agency Property to the Developer. The
parties recognize that such financial disclosures may contain sensitive information relating to other
business transactions of the Developer, that the disclosure of such information to third parties could
impose commercially unreasonable and/or anti-competitive burdens on the Developer and,
correspondingly, diminish the value or fiscal benefit that may accrue to the Agency upon the
disposition of the Agency Property to the Developer, if the terms for such disposition are mutually
agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any ofthe Developer's
financial and/or proprietary information that is exempt from disclosure as a Public Record pursuant to
Government Code Sections 6254.15 and 6255. In the event that the Agency refuses to disclose records
at the request of Developer, the Developer shall indemnify, defend (subject to the approval of the
Developer's selected legal counsel by the Agency Counsel), and hold harmless, including payment of
attorneys' fees, the City of San Bernardino and the Agency from any action, lawsuit or other
proceeding initiated to obtain access to documents that may be determined to be exempt from
disclosure pursuant to the applicable provisions of the Public Records Act. For purposes of this
Section, "Attorneys' fees" shall include, without limitation, the costs, salary and expenses of the City
Attorney and members of his office in representing the City and/or the Agency and Agency Counsel.
13. 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, sexual orientation,
or ancestry in undertaking its obligations under this Agreement.
'-
14. Compliance with Law.
The Developer acknowledges that the Project DDA, if mutually agreeable terms are
established, may 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 that will
require the payment of the prevailing wage rates all as shall be further set forth in the Project DDA.
IS. 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 any 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 noticed public hearing, as required by the
CRL.
16. Press Releases.
-
The Developer agrees to discuss any press releases it may propose relating to the Arden
Guthrie Site with the Agency Executive Director or his/her designee, prior to publication, to assure
accuracy and consistency of the information. The Agency shall not issue press releases or make public
disclosure of information concerning the Arden Guthrie Site or the Developer's proposals (unless the
Developer has consented thereto) except as may be required by applicable law.
-
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17. Notices.
......~ All notices required hereunder shall be presented in person or by fax and 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 (2nd) business day after deposit with the United
States Postal Service. Notice by personal service shall be deemed effective upon delivery. Any party
may change their address for receipt of notice by notifying the other parties in writing. Both parties
shall strive to deliver notice to the Co-Developer but failure to deliver notice or the failure to receive
notice by the Co-Developer shall not in any manner affect the validity of notice given from one party
to the other.
TO DEVELOPER:
Home Depot, Inc.
Attn.: Mr. George Ray, Real Estate Manager
3800 East Chapman Avenue
Orange, California 92868
(714) 940-3604
TO CO-DEVELOPER:
(informational purposes only)
Gerald W. Beard Realty, Inc.
Attn.: Mr. Scott C. Beard, President
285 West Rialto Avenue
Rialto, California 92376
(909) 875-2210 Ext. 106
and
--..
Mr. Mark Sandoval
III North Fifth Street, Suite 8
Redlands, California 92373
TO AGENCY:
Redevelopment Agency of the City of San Bernardino
Attn.: Maggie Pacheco, Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
(909) 663-1044
18. Acceptance of Agreement by the Developer.
The Developer shall acknowledge its acceptance of this Agreement by delivering three (3)
counterpart executed copies of this Agreement signed by an authorized party on behalf of the
Developer.
19. Authority.
This Agreement may be executed in counterparts, and when fully executed by the parties, each
such counterpart shall be deemed to be one (I) original document. 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.
--..
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20. Optional Termination by Developer.
_ Provided the Developer is not in default, the Developer may, in its sole and absolute discretion,
exercise an election to suspend the Project Concept Plan Study, and thereafter this Agreement shall
terminate and the parties shall be mutually released from any further obligations hereunder; provided,
however, that the Developer gives thirty (30) calendar days' prior written notice to the Agency and has
paid all amounts of the Agency expenses that were incurred by the Agency in reliance upon any
separate written agreement or agreements with the Developer wherein the Developer has agreed to
reimburse the Agency for specifically budgeted and identified third party independent consultants,
which the Agency has sought to retain due to the unavailability of staff to review the Project Concept
Plan.
Provided the Agency is not in default, the Agency may in its sole and absolute discretion
exercise an election to suspend the Project Concept Plan Study, and this Agreement shall terminate and
the parties shall be mutually released from any further obligation hereunder thirty (30) days following
written notice by the Agency to the Developer.
21. Defaults and Breach - General.
a. Failure or delay by any 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 cures, corrects or remedies the alleged default
within thirty (30) calendar days after receipt of written notice specifying such default such party shall
not be deemed to be in default hereunder.
_.,.>
b. Any failure or 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.
c. In the event that a default of any party may remain uncured for more than thirty (30)
calendar days following written notice, as provided above, a "breach" shall be deemed to have
occurred unless such party who is alleged to be in default is in the process of diligently prosecuting the
cure of such default, such cure was commenced immediately upon receipt of notice as above set forth
and such breach cannot be cured within said thirty (30) calendar days even though the cure was
commenced in a timely manner.
d. 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 successful party in any such legal
proceeding shall be entitled to recover its reasonable attorneys' fees as an element of its damages,
either as part of such legal proceedings or in a separate legal action to recover such attorneys' fees.
Attorneys' fees shall include, without limitation, the costs, salary and expenses of the City Attorney
and members of his office in enforcing this Agreement.
e. 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 thirty (30) calendar days following the date
of service of the notice of termination on the other party.
"'_'0'
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22. Governing Law; Venue.
~ The parties hereto acknowledge that this Agreement has been negotiated and entered into in the
State of 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 Court of San Bernardino, Central District.
23. Partial Invalidity.
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
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.
24. 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. The Co-Developer shall under no circumstances be deemed to be a third party beneficiary
to any of the rights or provisions contained in this Agreement.
......<
25.
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.
26. Entire Agreement.
This Agreement (including the Exhibit 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.
27. Time of Essence.
Except as provided in Section 20 of this Agreement, 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 any party shall constitute a default
under this Agreement by the party so failing to perform subject to such failure to timely perform being
waived by the non-defaulting party at their sole option and discretion.
4848-5191-7313.1 16
P:\Agcndas\Agcnda AUlclimenls\Agrmls-Amend 2006\09-18..Q6 Home Depot - Final North Arden Guthrie ERN.doc
28. 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 referred to in this Agreement are attached hereto and incorporated
herein by this reference.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates
indicated next to each of their signatures as appear below.
DEVELOPER
Home Depot, Inc., a Delaware corporation
By:
Dated:
Dated:
-
AGENCY
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Dated:
By:
Maggie Pacheco, Executive Director
Approved as to Form and Legal Content:
c~
Age:~ I
.,..""'.
-
4848-5191-7313.1
17
P:\Agendas\Agenda AUachment5\Agrmts-Amend 2006\Q9-i8.06 Home Depot. Final North Arden Guthrie ERN.doc
"-..
,"--.,.'
"-~
EXHIBIT" A"
Arden Guthrie Site
4848-5191-7313.1 18
P:\Agcndas\Agenda Allachmenls\Agrmls-Amcnd 2006\09-IS..()6 Home Depot. Final Nonh Arden Guthrie ERN.doc
EXHIBIT "A"
2029
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