HomeMy WebLinkAboutR35-Economic Development Agency
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ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
-ROM
"'- .
Maggie Pacheco
Executive Director
SUBJECT
Joint Public Hearing - Certification of an EIR
related to the Project and 2006 Disposition and
De\'elopment Agreement by and between the
Agency and Hillwood (State College
Rede\'dopment Project Area)
DATE:
September 11,2006
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S\'oODsis of Previous Commission/Council/Committee Action{s):
On July 5, 2005, the Redevelopment Committee Members Estrada and McGinnis unanimously voted to recommend to the
Community Development Commission approval of a Redevelopment Project Study and Redevelopment Assistance Agreement by
and between the Agency and HSB 1-215, LP., SE 1-215, LP. ("Hillwood").
On August IS, 2005, the Community Development Commissio.n ("Commission") approved a Redevelopment Project Study and
Redevelopment Assistance Agreement with Hillwood concerning the development of the former Culligan site.
On September 7, 2006, Redevelopment Committee Members Estrada, Johnson and Baxter unanimously voted to recommend that the
Community Development Commission consider this action for approval subject to certain economic modifications noted on page 2
of this Staff Report.
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Recommended Motionls):
Open/Close Joint Public Hearing
A:
(Community De\'eloDment Commission)
Resolution of the Community Development Commission of the City of San Bernardino certifying that the Environmental
Impact Report ("EIR") prepared for the Hillwood Warehouse/Distribution Facility (Tentative Parcel Map No. 17375 -
"Project") is recognized as adequate and complete; recognizing the overriding considerations to certain adverse impacts and,
recognizing the significant environmental effects which cannot be avoided, but can be reasonably mitigated, if the proposed
Project is implemented
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B: Resolution of the Community Development Commission of the City of San Bernardino (I) approving the 2006 Disposition and
Development Agreement ("DDA") by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and
HSB 1-215, a California Limited Partnership and SE 1-215, a California Limited Partnership (collectively referred to as
"Hillwood"); (2) authorizing the ExecutiveDirector of the Agency to execute said DDA relating to the transfer of the Agency
Property located south of the Hillwood Property and west of the 1-215 Freeway - (10.53 acres in the City of San Bernardino)
("Agency Property"); (3) acceptance by the Agency of the adjacent Exchange Tract; and (4) making certain findings thereto
related to the development of the Project
Recommended Motions Continued to Next Pal!e.....
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Project Area(s)
Maggie Pacheco
State College
Redevelopment Project Area
Phone:
(909) 663-1044
Contact Person(s):
Ward(s):
6
Supporting Data Attached: [;] Staff Report [;] Resolution(s) [;]Agreement(s)/Contract(s) 0 Map(s) 0 Letters
Minimum $1.4 M
to
FUNDING REQUIREMENTS Amou .6 M Maximum Source: State College Tax Increment
/
SIGNATURE:
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r \A~enlias\Comm De" CommiH,on\CDC ~O(l6',09. 18.06 Hillwood DDA SR doc
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number:
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Economic Development Agency Staff Report
Hillwood DDA - Slate College Redevelopmem Project Area
September 18, 2006
Recommended Motion(S):
Open/Close Joint Public Hearing
(Mayor and Common Council)
C: Resolution of the Mayor and Common Council of the City of San Bernardino consenting to the sale of the Agency Property
as identified in the 2006 Disposition and Development Agreement ("DDA") by and between the Redevelopment Agency of
the City of San Bernardino ("Agency") and HSB 1-215, a California Limited Partnership and SE 1-2]5, a California Limited
Partnership (colkctively referred to as "HiIlwood'"j (Agency Property located south of the HiIlwood Property and west of the
1-215 Freeway - 10.53 acres in the City of San Bernardino) ("Agency Property") and accepting the Community Development
Commission's cCl1ain findings related to the development of the proposed Project
P 'Agendas\Comm De\ Comm;~s,on\CDC 2006'09-18.06 H,lIwood DDA SR doc
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number:
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ECONOMIC DEVELOPMENT AGENCY
~.~-.
ST AFF REPORT
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JOINT PUBLIC HEARING - CERTIFICATION OF AN EIR RELATED TO THE PROJECT
AND 2006 DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN THE AGENCY AND HILL WOOD
(ST A TE COLLEGE REDEVELOPMENT PROJECT AREA)
RACKGROllND:
By the start of World War II, Mr. Culligan developed a facility in San Bernardino for manufacturing silica
gd, a critically needed de-hydrating material. After the war, zeolite production was shifted to the San
Bernardino plant. The company was incorporated in 1945 and its name changed to Culligan, Inc., in 1952.
In 1970, its name was changed to Culligan International Company ("Culligan"). In 1981, the Agency
commenced proceedings to condemn land owned by Culligan for a flood control retention basis. This was
necessary due to a storm water "run off' problem from the Culligan property damaging the adjacent Agency
owned Shandin Hills Golf Course. On November 30, 1981, a Settlement Agreement and Release of Claims
were executed between Culligan and the Agency wherein the Agency was to acquire the parcel for the
construction of a basin and drain system. Thus, the Agency acquired title to approximately 10.53 acres of
vacant land (which is used as an overflow for drainage) located south of Culligan and west of the 1-215
Freeway (APN: 0148-011-39 and APN: 0266-073-08) (the "Agency Property").
On October 19,2004, HSB 1-215, L.P., SE 1-215, L.P. (collectively referred as "Hill wood") acquired title to
the Culligan Site which is comprised of the following parcels: APN: 0266-073-02, 04, 05, 06, 09 and APN:
- 0148-011-40, all of which comprises the project site (the "Project Site"). APN: 0148-011-40 is adjacent to
the Agency Property.
On May 17. 2005, Hillwood informed the Agency of their ownership of the Project Site and that they
planned to construct a distribution facility on the Project Site. Hillwood desired to enlarge the Project Site
by acquiring the adjacent Agency Property and reconfiguring the basin and flood control improvements with
the Project Site. The Agency Property is vacant of any vertical structures and has been improved and used
for drainage overflow and lies between the Project Site and the Shandin Hills Golf Course. If the Project
Site and the Agency Property are properly reconfigured for maximum use potential, it is possible for
Hillwood to construct approximately 2,000,000 square feet of distribution facilities (the "Project"). A
reconfigured storm water basin will be improved by Hillwood and will remain in approximately the same
location as the Agency Property.
On August 15, 2005, the Community Development Commission ("Commission") approved a
Redevelopment Project Study and Redevelopment Assistance Agreement ("2005 Agreement") with
l-lillwood to determine the feasibility of developing the Project on the Project Site, which includes the
disposition of the Agency Property.
The Agency also initiated the California Environmental Quality Act ("CEQA") review process and retained'
an environmental consultant at the sole cost and expense of Hillwood to prepare the necessary CEQA
documentation and Environmental Impact Report ("EIR") that is required for the approval of the DOA by
,..- the Commission and for the Project development on the Project Site.
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r \Ag~ndas\Col1lm Dn COl1llnlsslon\CDC 2006,09.18-06/fillwood DDA SR doc
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number:
.
Economic Development Agency Staff Report
Hillwood Di:,posirion and Del'elopmenl Agreemei1l
Page 2
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Cl'RRE~T ISSl' :
Hillwood and the Agency have completed the preliminary work as defined in the 2005 Agreement and the
parties are interested in formalizing a Disposition and Development Agreement ("DDA") for the transfer of
the Agency Property and development of the Project as per the terms of the 2005 Agreement. It is therefore,
proposed that a DDA be considered which includes the following business points:
. Hillwood will construct approximately 2,000,000 square feet of building space within 5 years from
the close of escrow.
. The unimproved Agency Property to be transferred to Hillwood is approximately 10.53 acres in size
and is located south of the Hillwood Property and west of 1-215 Freeway (APN: 0148-011-39 and
APN: 0266-073-08). The consideration the Agency will receive from Hillwood for the Agency
Property is the conveyance to the Agency of approximately 4.46 acres owned by Hillwood on the
south side of University Parkway ("Exchange Tract") with a fair market value in excess of $1.8
million. The fair market value of the Agency Property in its current condition is $970,000 based
upon a recent appraisal. The Exchange Tract, which extends along the south side of University
Parkway, is to be used as right-of-way for the construction of a grade separation crossing over the
BNSF tracks at University Parkway and connecting to Cajon Boulevard and will eventually be
dedicated by the Agency to the City or SANBAG for public right-of-way purposes. As part of the
Project. a new storm drain retention basin would be constructed on the Agency Property to be
transferred to Hillwood. Currently, there is a storm drain retention basin on the Agency Property (the
- "Existing Storm Drain Facility"). However, the Existing Storm Drain Facility will need to be
reconfigured and enlarged in order to accommodate the storm drainage from the Project Site and the
adjacent areas that drain from the east side of the 1-215 Freeway, which are presently serviced by the
Existing Storm Drain Facility, incorporate the fully improved Agency Property in its reconfigured
condition in addition to the remainder of the Exchange Tract, into a Landscaping Maintenance
District (LMD) and upon completion, Hillwood will dedicate the reconfigured Agency Property with
the new storm drain improvements to the City.
. Hillwood will contribute $3 million for the funding of a portion of the costs of the improvements at
the University Parkway/I-215 Freeway interchange ("Interchange Improvements") which is estimated
to cost the City in excess of $13 million. In exchange for their upfront contribution to the
Interchange Improvements, the Agency will reimburse Hillwood up to $1.4 million over the next 15
years, plus interest, from 50% of the net tax increment after deposits to the Low and Moderate
Income Housing Fund, less any pass-through applicable to the Project Area, and s'uch reimbursement
will be subordinate to any other Agency debt related to the Project Area as currently outstanding or as
may be issued in the future for the Project Area. The tax increment available to reimburse Hillwood
is the tax increment that the Agency is entitled to receive from the Project and the Project Area
through April 27, 202 I. which is the last date to receive tax increment revenues for the Project Area
(See the cash flow projections of the tax increment as attached to this Staff Report). It should be
noted that when the traffic impact analysis was completed for the development of the Project,
approximately 2 years ago. it was determined that the "fair share" contribution from Hillwood for the
_. Interchange Impro\'ements was approximately $1.6 million. However, the City no longer uses the
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P '!\gelldu\Cc>mm De, CommiHlon'CDC 200~',09.1~.06 Hillwood ODA SR doc
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number:
.
Economic Development Agency Staff Report
Hil/wood Disposition and Development Agreement
Page 3
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........ "fair share" formula and instead. applies the Development Impact Fee ("Fee") which today,
Hillwood's contribution would equal approximately $2.8 million. But because the City was
interested in generating revenues as quickly as possible to enable the Interchange Improvements to
proceed, Hillwood agreed to pay the $3 million up front in return for the Agency reimbursing
Hillwood the $1.4 million difference from the Project Site tax increment. Current Agency Staff has
attempted to honor the original commitments of both parties as set forth in the 2005 Agreement and
prior letters between the parties during the past year while the EIR has been prepared and circulated
as part of the CEQA process as a condition to the consideration and approval of the DDA.
. Additionallv, Hillwood will be contributing approximately $3 million toward required public
infrastructure (public water line and public storm drain system) and the Agency may also be
reimbursing Hillwood an additional amount not to exceed $2,230,000 for certain extraordinary public
improvements required in conjunction with the development of the Project Site on the same
repayment formula referenced above. These improvements include the cost of the acquisition of the
Agency Property ($970,000) and the improvements thereto with the basin and storm drain system not
to exceed an additional $ I ,260,000 for a maximum total of $2,230,000. These improvements will
only be reimbursed by the Agency if the City accepts these as public improvements.
If the Project Site is developed with 2.000,000 square feet, the projected total development cost or
development value is estimated to be $85 million. This would equate to approximately $850,000 annually in
tax increment generated by the Project Site. In addition, presently, Hillwood has incurred $1,159,490 in pre-
dewlopment costs. These costs were incurred for environmental testing, unexploded ordinance testing,
_. DTSC clearances, Army Corps of Engineers clearances, underground mapping, sampling, suspected
contamination removal (sump) and demolition and removal of old WW II structures from the Camp Ono
ammunition storage area, concrete drying beds from Culligan, and settling ponds from Culligan. When the
Project Site is completely built out, approximately 1,429 people may be employed at this location.
E;\'VIRONMENTAL IMPACT:
The Agency retained Terra Nova Planning & Research, Inc. ('Terra Nova"), to prepare an EIR. Upon
completion of the Draft EIR, the Notice of Completion was published in the San Bernardino County Sun and
copies of the Draft EIR were made available for public review and comment. It was also distributed to
public agencies. The public review period was June 8, 2006 through July 24, 2006. Comments were
received from 6 agencies and I from Hillwood and are included in the Final EIR along with Staff responscs
as analyzed in the Drafi EIR. Issues of concern include biological and cultural resources, air quality,
drainage, noise, traffic, light and glare and other potentially adverse impacts.
Existing conditions were briefly discussed, the potential hazards andlor impacts were assessed and potential
mitigation measures were set forth. Any mitigation monitoring and reporting programs were identified in
accordance with AB 3 I 80 (California Public Resource Code 21081.6).
On July 25, 2006, the Agency received a letter from the State of California, State Clearinghouse and
Planning Unit, which stated that the Agency "had complied with the State Clearinghouse review requirement
for draft emironmental documents, pursuant to the California Environmental Quality Act". They also
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P \Agencas\Comm De_ CommISSIOll\CDC 2006\09-l8-06 Hillwood DDA SRdoc COMMISSION MEETING AGENDA
Meeting Date: 09/1812006
Agenda Item Number:
.
Economic Development Agency Staff Report
Hillwood Disposition and Development Agreement
Page 4
"- In conclusion. the Commission is requested to make certain statement of overriding considerations and adopt
the CEQA Findings and Statement of Facts and certify the FEIR.
FISCAL IMPACT:
The Agency will reimburse Hillwood up to $3.63 million over the next 15 years, plus interest, from 50% of
the net tax increment after deposits to the Low and Moderate Income Housing Fund, less any pass through
applicable to the Project Area, and such reimbursement will be subordinate to any other Agency debt related
to the Project Area as currently outstanding or as may be issued in the future for the Project Area. The
attached spreadsheet outlines the estimated tax increment revenue projection once the Project Site has been
fully built out and the 50/50 split of the tax increment. On September 7, 2006, the Redevelopment
Committee recommended that the tax increment generated from the Project Site be split on a 50/50 basis for
the net tax increment.
Of the total $3.63 million possible reimbursement to Hillwood, $] ,400,000 is a result of excess "fair share"
contribution for the Interchange Improvement as determined by a Traffic Impact Analysis completed for the
development of the Project Site approximately 2 years ago. Hillwood agreed to pay the City $3,000,000 up
front for the Interchange Improvement. In return, the Agency would reimburse Hillwood $1,400,000, which
represents the excess "fair share" contribution made by Hillwood, from the Project Site tax increment.
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The remaining $2.230,000 possible reimbursement to Hillwood would be for certain extraordinary public
improvements required in conjunction with the development of the Project Site. However, it is understood
that if the City does not accept the improvements to the public storm drain system and retention basin, the
Agency is no longer obligated to reimburse Hillwood the amount of $2,230,000. Hillwood understands this.
and has accepted that risk; therefore, the minimum Agency reimbursement to Hillwood is $ 1.4 million or the
maximum financial exposure to the Agency will be $3.63 million, plus interest.
It should also be noted that the Agency has budgeted an additional $3 million in the 2006-2007 EDA
approved budget in order to assist the City with the construction of the University Parkway/I-2l5 Freeway
Interchange Improvements and thus, benefiting all properties, including the Project Site, in the Project Area
and alleviating traffic congestion throughout the City.
RECOMMENDA nON:
That the Mayor and Common Council and the Community Development Commission adopt the attached
R"~"'1) ~
he , Executive Director
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P,Agenal.;,(.)Il:'" Del' Commissjon\CDC :006',09-18-06 H,lh,ood DDA SR do~
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number:
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SUMMARY REPORT PURSlJA"IT TO HEALTH AND SAFETY CODE SECTION 33433 OF
".... TilE CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON A DISPOSITION AND
'- DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO AND HSB 1-215, L.P., SE 1-215, L.P.
(COLLECTIVELY REFERRED TO AS "HILLWOOD") STATE COLLEGE
REDEVELOPMENT PROJECT AREA
INTRODUCTION
This Summary Report has been prepared by the Redevelopment Agency of the City of San Bernardino
(the "Agency") pursuant to Section 33433 of the California Health and Safety Code. This Summary
Report sets forth certain details of the proposed Disposition and Development Agreement (the "DDA")
between the Agency and HSB 1-215, a California Limited Partnership and SE 1-215, a California
Limited Partnership, (collectively referred to herein as "Hillwood"), regarding the transfer of
approximately I 0.53 acres Agency Property located south of the Hillwood Property and west ofI-215
Freeway (APN: 0148-011-39 and APN: 0266-073-08) in the City of San Bernardino (the "Agency
Property").
This Summary Report is organized into the following six (6) sections:
I. Salient Points of the Proposed DDA: This section includes a description of the project and
the major responsibilities to be assumed by the Agency and the Hillwood.
II.
Cost of the DDA to the Al!encv: This section outlines the proposed DDA costs to the Agency,
if any.
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Ill. Estimated Value of the Interests to be Conveved bv the DDA Determined at the Hil!hest
and Best Use Permitted Under the Redevelopment Plan: This section summarizes the value
of the portion of the building to be conveyed by the DDA to Hillwood at the highest use
permitted.
IV. Estimated Reuse Value of the Interests to be Conveved Determined at the Required Use
and with the Conditions. Covenants and Development Costs Required by the Proposed
DDA: This section summarizes the agreed "purchase price" for the Agency Property.
V. Blil!ht Allcyiation: This section describes the existing blighting conditions in and around the
Agency Property that is the subject of the DDA, and an explanation of how the proposed DDA
will assist in alleviating the blighting conditions.
VI. Conformance with the AB 1290 Implemcntation Plan: This section identifies how the
proposed DDA will result in a development activity that fulfills goals and objectives
established in the Agency's AB 1290 Five-Year Implementation Plan.
I. SALIENT POINTS OF THE PROPOSED DDA
A. Description of the Proposed Project
c"'-'"
-......- The purpose of the proposed DDA is to transfer the Agency Property to Hillwood in exchange for
property that Hillwood owns ("Exchange Tract"). The proposed project, on approximately 153 acres,
is to construct approximately 2,000,000 square feet of ware housel distribution facilities ("Project Site").
P \Agenaas\Agcnda II.H~chmcm~\Sul1lmar.. Reports\lOO6'.09-1 8-06 Hillwood Summary Report doc
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The Agency Property will be improved as a flood control retention basin to support the water run off
from the Project Site and surrounding areas and the Developer will, upon completion of the
improvements. dedicate the Agency Property to the City. The Exchange Tract will be used to
construct the University Parkway/BNSF grade separation improvcmcnts and the Agency will
eventually transfer title to the Exchange Tract to the City. The Agency Property is located within the
State College Redevelopment Project Area.
.......
B. Agency Responsibilities
1. Enter into a DDA with Hillwood for the transfer of the Agency Property to Hillwood.
1 Reimburse Hillwood for their excess fair share amount of the costs to construct the University
Parkway/I-2IS Freeway interchange improvement ("Interchange Improvement") in the amount
of $1.4 million.
3. Possible reimbursement to Hillwood for public improvements for the Public Storm Drain
System and Retention Basin of up to $2.2 million
4. Accept title to the Exchange Tract from Hillwood with an estimated value of more than $1.5
million.
C. Hillwood Responsibilities
1. Enter into a DDA with the Agency for thc transfer of the Exchange Tract to the Agency.
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2. Construct approximately 2,000,000 square feet of warehouse/distribution facilities on the
Project Site.
3. Contribute $3 million to the Interchange Improvement.
4. Transfer the Exchange Tract to the Agency.
5. Construct on-site improvement including landscaping, streets, curbs, gutters, sidewalks,
parking lots, lighting, scwcr, water lines, etc. per the approved Development Permit type II No.
05-18.
II. COST OF THE DDA TO THE AGENCY
The costs 'of the DDA to the Agency is a not to exceed amount of $3,630,000. This includes
$1,400,000 reimbursement to Hillwood for excess fair share payment for the Interchange
Improvement, plus interest; and $2,230,000 for public improvements in connection with the public
storm drain system, retention basin and Agency Property ("Public Improvements"). However, if after
the completion of the Public Improvements the City does not accept the Public Improvements from
Hillwood, the Agency is not obligated to reimburse Hillwood the amount of $2,230,000. The funds to
reimburse Hillwood will come from thc tax increment revenue generated by the Project Site.
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r ',Asenda"Agenda AUachmenl>\Summary Repons\2006\09-1 8.06 HiUwood Summary Repon doc
III.
ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED, DETERMINED AT
THE HIGHEST AND BEST USES PERMITTED UNDER THE REDEVELOPMEl'IT
PLAN.
--
.......
Given the location and current use characteristics of the Agency Property, use of a flood control
retention basin represents the highest and best use of the Agency Property. The appraised fair market
value of the Agency Property is $970,000.
IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE CONVEYED
DETERMINED AT THE REQUIRED USE AND WITH THE CONDITIONS,
COVENANTS AND DEVELOPMENT COSTS REQUIRED BY THE DDA
The fair market value of the Agency Property is $970,000
V. BLIGHT ALLEVIATION
Hillwood will enlarge and landscape the Agency Property in accordance with the approved
Development Permit Type II No. 05-18. The Agency Property has been blighted by overgrown
vegetation and debris since the closure of the former Culligan facility. Once the final construction is
completed on the Project Site, including the Agency Property, approximately 153 acres of blighted
land will be eliminated.
VI. CONFORMANCE WITH THE AB 1290 IMPLEMENTATION PLAN
"- The Five-Year Implementation Plan adopted by the Agency contains several broad operational goals
and objectives. Among these are the following:
. Eliminate blighting influences including deteriorating buildings, uneconomic land uses,
obsolete structures, and other environmental, economic, and social deficiencies.
. To facilitate land assembly to prevent piecemeal development that would leave
economic potential underachieved.
. To re-plan, redesign and develop underdeveloped areas that are stagnant or improperly
utilized.
The proposed DDA will assist the Agency In meeting the objectives and goals of its Five-Year
Implementation Plan in the following way:
I. The execution of the DDA with Hillwood will continue the redevelopment activities of blight
elimination; improving economic deficiencies in the State College Redevelopment Project
Area; replan redesign and develop undeveloped land that is underutilized.
Based upon the preceding factors, the proposed DDA is consistent with the adopted Five-Year
Implementation Plan.
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P \Agenda,"Agenda Ana,hment,ISummar\ RepQm\2006\09- 18-06 Hillw(lod Summary Report doc
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO CERTIFYING THAT THE
ENVIRONMENTAL IMPACT REPORT ("EIR") PREPARED FOR THE
HILL WOOD WAREHOUSE/DISTRIBUTION FACILITY (TENTATIVE
PARCEL MAP NO. 17375 - "PROJECT") IS RECOGNIZED AS
ADEQUA TE AND COMPLETE; RECOGNIZING THE OVERRIDING
CONSIDERATIONS TO CERTAIN ADVERSE IMPACTS AND,
RECOGNIZING THE SIGNIFICANT ENVIRONMENTAL EFFECTS
WHICH CANNOT BE A VOIDED, BUT CAN BE REASONABLY
MITlGA TED, IF THE PROPOSED PROJECT IS IMPLEMENTED
WHEREAS, an Environmental Impact Report (hereinafter "EIR") has been prepared and
circulated, pursuant to the requirements of the California Environmental Quality Act of 1970
12 (hereinafter "CEQA") concerning the development of the Hillwood Project Site (hereinafter
13 "Project"); and
14
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WHEREAS, it is the policy of the State of California and the Community Development
15 Commission of the City of San Bernardino (hereinafter the "Commission"), in accordance with the
16 provisions of CEQA, as amended (Public Resources Code, Section 21000 et. seq.), and the State
17 Guidelines for the implementation of CEQA, as amended (California Administrative Code, Section
18 15000 et. seq.), that the Commission shall not approve the Project unless there is no feasible way to
19 lessen or avoid significant effects; meaning all impacts have been avoided to the extent feasible or
20 substantially lessened and any remaining unavoidable significant impacts are acceptable based on
21 CEQA, Section 15093; and
22
WHEREAS, it is the policy of the State of California and the Commission, in accordance
23 with the provisions of the CEQA, as amended (Public Resources Code, Section 21000 et. seq.) and
24 the State Guidelines for implementation of CEQA, as amended (California Administrative Code,
25 Section 15000 et. seq.) that the Commission shall balance the benefits of a proposed project against
26 its unavoidable environmental risks prior to project approval; meaning that if the benefits of the
"- 27 proposed Project outweigh the unavoidable adverse environmental effects, the adverse
28
P \Ag~ndas\Resolutiolls\Resolut,o"\"2006'.09.1B.06 H,ll"ood CDC Reso A doc
,.- em'ironmental effects may be considered acceptable; and
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WHEREAS, the Commission has read and considered all enviromnental documentation
3 comprising the EIR, has found that the EIR considers all potentially significant environmental
4 impacts of the proposed Project, is complete and adequate, and fully complies with all requirements
5 ofCEQA; and
6 WHEREAS, the Commission has reviewed and considered certain overriding considerations
7 to adverse impacts, the CEQA Findings and Statement of Facts; and
8 WHEREAS, prior to action on the Project, the Commission has considered all significant
9 impacts, mitigation measures, and project alternatives identified in the EIR, and has found that all
10 potentially significant impacts on the Project have been lessened or avoided to the extent feasible;
11 and
12 WHEREAS, Section 15093(b) requires, where the decision of the Commission allows the
13 occurrences of significant effects which are identified in the EIR, but are not mitigated, the
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14 Commission must state in writing the reasons to support its action based on the EIR and/or other
15 information in the record; and
16 WHEREAS, the CEQA and the State CEQA Guidelines provide that no public agency shall
17 approve or carry out a project for which an EIR has been completed and which identifies one or
18 more significant effects of the project unless the public agency makes written findings for each of
19 the significant effects, accompanied by a statement offacts supporting each finding.
20 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
21 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
22 FOLLOWS:
23
Section 1.
The Commission does hereby certify that the EIR for the Hillwood
24 Warehouse/Distribution Facility is adequate and complete.
25
Section 2,
The Commission approves the Statement of Overriding Considerations as
26 shown on the attached Exhibit "A" entitled "Statement of Overriding Considerations," which is
......... 27 incorporated herein as though set forth at length.
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P '.A~end~~\Resol\lllOnl\ResoIOI",ns\2006\09.lg.06 Hillwood CDC Reso ^ doc
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Section 3.
on the attached Exhibit '"8" entitled "CEQA Findings and Statement of Facts," which exhibit is
The Commission adopts the CEQA Findings and Statement of Facts as shown
3 incorporated herein as though set forth at length.
4 Section 4,
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The Resolution shall become effective immediately upon its adoption,
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? \Agcnda,\Rcsolullon,\ResoluIHlIlS'-.:Q06\09.\ 8.Q6 Hin...ood CDC Reso A doc
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10 thereof, held on the
day of
11 Commission Members:
Aves
12 ESTRADA
13 BAXTER
'- 14 VACANT
15 DERRY
16 KELLEY
17 JOHNSON
18 MC CAMMACK
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RESOLVTlO:"/ OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDI:"/O CERTIFYING THAT THE
ENVIRONMENTAL IMPACT REPORT ("EIR") PREPARED FOR THE
HILLWOOD WAREHOUSE/DISTRIBUTION FACILITY (TENTATIVE
PARCEL MAP NO. 17375 - "PROJECT") IS RECOGNIZED AS
ADEQUATE AND COMPLETE; RECOGNIZING THE OVERRIDING
CONSIDERATIONS TO CERTAIN ADVERSE IMPACTS AND,
RECOGNIZING THE SIGNIFICANT ENVIRONMENTAL EFFECTS
WHICH CANNOT BE AVOIDED, BUT CAN BE REASONABLY
MITIGATED, If THE PROPOSED PROJECT IS IMPLEMENTED
1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a
meeting
,2006, by the following vote to wit:
Navs
Abstain
Absent
Secretary
The foregoing resolution is hereby approved this
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26 Approved ,as to Fo~rm' i
27 Bv ~~_I-
Agency nsel
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day of
,2006.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
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P 'A!.!~nda"Resolullon5'.Re,olullon,\200t>\09.18.0t> Hliiwood CDC ReSD!\ doc
II
EXHIBIT "A"
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ST A TEMENT OF OVERRIDING CONSIDERA nONS
The Community Development Commission of the City of San Bernardino ("Commission")
hereby recognizes the overriding consideration to certain adverse impacts. The following
statements are in support of its action based on the EIR and/or other information in the record:
1. The land uses that are proposed will be developed on an existing lot that is under the
designation of the City of San Bernardino Economic Development Agency for
redevelopment and the land uses proposed are compatible with the allowable uses.
2. The proposed Hillwood Warehouse/Distribution Facility is located within the State
College Redevelopment Project Area ("Project Area"), and as such, development of the
project site will advance economic development goals and objectives that are articulated
in the City's General Plan.
3. Development of the Hillwood WarehouselDistribution Facility will help maintain the
City's diversity of land uses as well as support the General Plan's Land Use Policies.
General Plan Land Use Policies that highlight the conformity of the Hillwood
development include the following:
. Policy 2.4: The City shall enhance the quality of life and economic vitality by
strategic infill of new development and revitalization of existing development.
---.
. Policy 2.4.1: Quality infill development shall be accorded a high priority in the
commitment of City resources and available funding.
. Policy 2.4.2: The City shall provide special incentives and improvement programs to
revitalize major business corridors and employment centers.
. Policy 2.4.3: To stimulate the desired mix and intensity of development, land use
flexibility and customized design standards shall be achieved through various
devices.
. Policy 2.4.4: Large parcels that front onto freeways and commercial corridors shall
be protected from being subdivided into smaller parcels.
. Policy 2.2.3: Sensitively integrate regionally beneficial land I.\$es such as
transportation corridors, flood control systems, utility corridors, and recreation
corridors into the community.
4.
The warehouse facility enhances the City's economic development effort and constitutes
an allowed use within the Light Industrial land use designation. The
warehouse/distribution operations will contribute substantially to improving the City's
economic environment; will strengthen the City's role as a regional transportation and
distribution hub; and will create employment opportunities on site, as well as creating
indirect employment effects at other businesses in and around the City. The project is
estimated to generate the following economic benefits:
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P.'\g:nd.u\Agenda Ana~hments\ExhlbiIS\2006\09.18-06 Hillwood Statement ofOverndong Con~lderallon~ (E~hibil A 10 Rcso A) doc
EXHIBIT "A"
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ST A TEMENT OF OVERRIDING CONSIDER<\. TIONS
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. Emplovment: Conservative employment generation stalIstlcs indicate that
warehouse/distribution operations will typically create one job for each 1,400 square
feet of warehouse/distribution space. As the proposed Hillwood development would
have approximately 2.000,000 square feet, and approximately 1,429 new jobs will be
created as a result of this Project.
. Existing House Stock: The Project will generate home purchases that will reduce the
City's existing unoccupied housing stock. The Project is estimated to need
approximately 735 housing units, based on household formation estimated at a rate of
] new household for each 2 new jobs. With the large number of unoccupied housing
units in the City and the construction of additional new housing units in the City each
year, housing is already available to serve the 735 new housing units that will be
needed to house employees of the proposed project.
. Industrial Proper!\' Tax Revenues: With an assessed value of $85 million,
including approximately $80 million in building and site costs and $5 million in
tenant improvements, the annual property tax collected would be $850,000 per year,
of which $170,000 would be deposited in the Low/Mod Housing Fund with the
remaining $680,000, less pass-through, will be available for the Project Area.
---
. Other Development Revenues: The City will also collect fees from surcharges on
electric, natural gas, and telecommunications services that are provided to the
warehouse/distribution facility. In addition, other tax revenues may accrue to the City
as a result of increased use of nearby hotels, motels, gas stations, vehicle parts and
repair shops, restaurants, and other businesses, due to activities related to
warehouse/distribution facility operations, drivers, and staff.
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p.JI,!,'cndas.Al;cnda Allachmcnls'hh,biIS',200609.IS.(){, ~llllwood Statement ofOvelTldlng COJIS,dtUlions (I:~hib)l A [0 Reso A),doc
EXHIBIT "B"
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CEQA FINDINGS AND ST A TE:\lENT OF FACTS
A.
INTRODUCTION
The Community Development Commission of the City of San Bernardino ("Commission") proposes to
approve the development of the Hillwood Warehouse/Distribution Facility ("Hillwood Facility").
Because the proposed action constitutes a "project" under the California Environmental Quality Act of
1970 (CEQA), as amended, and the State Guidelines for the implementation of CEQA, as amended, the
Redevelopment Agency of the City of San Bernardino ("Agency") has prepared a Final Environmental
Impact Report (FEIR). The FEIR identifies certain significant effects which may occur as a result of the
project, or which may occur on a cumulative basis in conjunction with the project and other past, present,
and reasonably foreseeable future projects.
CEQA .and the State Guidelines require that no public agency approve or carry out a project for which an
Environmental Impact Report (EIR) has been completed and which identifies one of more significant
effects of the project unless the public agency makes one of more of the following written findings for
each of the significant effects, accompanied by a Statement of Facts supporting each finding. The
possible findings include the following:
1. Changes or alterations have been required in, or incorporated into the project, which avoid
or substantially lessen the significant environmental effects as identified in the Final EIR.
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2.
Such changes or alterations are within the responsibility and jurisdiction of another public
agency and not the agency making the finding. Such changes have been adopted by such
other agency or can and should be adopted by such other agency.
3. Specific economic, social, or other considerations make infeasible the mitigation measures
or project alternatives identified in the Final EIR.
The Commission has determined that the EIR is complete and has been prepared in accordance with
CEQA and the Guidelines. The Commission proposes to approve the proposed project, and the findings
set forth herein are made.
B. EFFECTS DETERMINED TO BE INSIGNIFICANT
,""'....
As part of the Initial Study process, the Environmental Checklist Form suggested by the CEQA
Guidelines and utilized by the Agency was reviewed to assure that all environmental issues required to be
addressed by CEQA would be addressed in the EIR. It was determined that the proposed project would
have no impact on the following environmental areas of concern: I) scenic vistas as identified in the
City's General Plan; 2) agricultural resources; 3) disturbance of human remains; 4) safety hazard for
people residing or working in the project area, in the vicinity of a private airstrip; 5) hazardous materials
sites; 6) water quality standards or waste water discharge requirements; 7) placement of housing or
structures within a 100-year flood hazard area: 8) expose people or structures to a significant risk
involving flooding or inundation; 9) physical division of an established community; ] 0) conflict with any
applicable land use plan, policy or regulation of an agency with jurisdiction over the project; II)
development within an Airport Influence Area; 12) mineral resources; 13) remove existing housing or
displace substantial numbers of existing housing, necessitating the construction of replacement housing
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P 'Abendas"Agenda Anachments,Exh,bits'100&',()9.IS.06 Jj,ll"(lod CEQA FlIldmss &. STatemenT of Fa CIS (ExhibiT B to Reso A} doc
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clsewhere; 14) require the expansion of existing recreational facilities; 15) change in air traffic patterns;
16) result in inadequate parking capacity; and 17) conflict with adopted alternative transportation policies,
plans or programs.
C. EFFECTS DETERMINED TO BE l\lITlGA TABLE TO A LEVEL OF INSIGNIFICA~CE
c.!. Land Use Impacts
Proiect Conditions
The proposed project involves the development of a 2,000,000 square foot warehouse/distribution facility
on approximately 153 acres. Development of the project will include six (6) warehouse buildings ranging
from 94,1]6 square feet to 80],581 square feet, each containing about 5,000 square feet of warehouse-
related office space, or 25,000 square feet of office' space in total. The proposed land use is consistent
with the light industria] designation for the site. Development of Hillwood Facility at this site represents
a suitable infill of the City's industrial development pattern. The proposed project is also consistent with
previous industrial uses on-site including a large-sca]e water treatment plant and distribution facility, and
a US AmlY munitions testing station. In addition, the proposed project exceeds the minimum
requirements of the City's Development Code for Industrial properties and the project supports a range of
Genera] Plan goals and policies for the City, particularly those related to redevelopment and revitalization.
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The proposed Hillwood Facility is consistent with the provisions and requirements of the City of San
Bernardino Genera] Plan, as well as with the City's Development Code. The proposed development is
compatible and consistent with the commercia] and industria] developments that line the 1-215 Freeway
(1-215) and Burlington Northern Santa Fe (BNSF) railroad transportation corridor. Impacts of this infill
development to surrounding land uses will be buffered by 1-215 and the portion of the Shandin Hills Go]f
Course to the east, by the Shandin Hills Go]f Course to the south/southeast, by Cajon Boulevard, the
BNSF railroad and industrial/commercial uses to the west/northwest, and by University Parkway and
commercial uses to the north. Impacts associated with land use compatibility are expected to be Jess than
significant, and no mitigation measures are required.
Findings:
1. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate potcntial land
use impacts to a level of insignificance. As a result, no specific mitigation measures are
required.
C.2. Biological Impacts
Proiect Conditions
,,.-....
Bui]dout of the proposed project will result in the construction of six (6) large warehouse buildings,
loading courts, parking lots, roads, and other elements of the built environment. The site has been
previously developed, however, and used for a wide range of industrial purposes. Such uses, as well as
the building foundations, rubble, and paving remnants that remain on site, have greatly diminished the
biological value of the site. Redeve]opment of the site will result in a less than significant reduction of
open space in the region and a Jess than significant impact to habitat and native wildlife and vegetation.
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P'Ag-cndas\Aj;enda AlIachmems,E~hibiIS'.2{}{J6\09-18-06 H,lI\\(lod CEQA FllIdmp & Sllllcmenl of Fa,ls (Exbibll B to Reso A) doc
Findings:
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1.
Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise being implemented, which will mitigate these impacts to a level of
insignificance. Among the mitigation measure~ are the following:
a. Potential impacts shall bc mitigated to a less than significant level by insuring that suitable
nesting habitat is not cleared or graded during the March through July breeding season.
Alternately, a nesting bird survey could be conducted to insure that nesting birds are not
present.
b. A burrowing owl pre-construction survey shall be conducted no more than thirty (30) days
prior to any construction related activity to insure that no owls have moved onto the project
site. If owls are detected during that survey, additional mitigation measures would be
required, as recommended by the California Burrowing Owl Consortium.
c. Project design shall include the predominant use of native and other drought-tolerant
landscaping to provide suitable habitat for indigenous animal species.
C.3. Soils and Geology Impacts
Proiect Conditions
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The site encompasses approximately 153 acres and is located near major earthquake faults. On-site soils
may pose some challenges to the constructions of the warehouse buildings and other site improvements.
Proper design, site preparation, and grading procedures can eliminate any difficulties, however. On-site
soils contain some cobble and boulders. Particles greater than three inches in diameter in the upper 2 feet
of the building pad sub-grade interfere with the utility and foundation excavations, therefore such
materials will be removed from the top 2 feet of ground surface. The new stmctural fill soils are expected
to extend to depths of at least 3 feet below the foundation bearing grades, and another foot or more of soil
beneath this will be densified and moisture conditioned. Impacts to the site related to soil stability, infill,
erosion, water runoff, and a number of geotechnical elements can be reduced to less than significant levels
through the implementation of mitigation measures.
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Findings:
1. Changes, alterations, and other measures have been incorporated into the project, or are
otherwise being implemented, which will mitigate thesc impacts to a level of insignificance.
Among these are the following: .
a. Proper structural engineering, which takes into account the forces that will be applied by
anticipated ground motions, shall provide mitigation for ground shaking hazards. Seismic
design shall be in accordance with the most recently adoptcd cditions of the Uniform
Building Code and/or International Building Code and the seismic design parameters of
the Stmctural Engineers' Association of California.
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b. When so requircd, rough grading shall be performed under geological and engineering
observation of the Geological Consultant and/or the City Engineer. Rough grading
includes, but is not limited to, grading of over-excavation cuts, fill placement, and
excavation of temporary and permanent cut slopes. In-place soil density should be
determined by a method acceptable to the City Building Department.
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P A~cndasAgcnJa Anachmenls\ExhibiIS.2006',O'l.IS-06 HIII"ood CEQA Findlllgs & Statement of Facts (Exhibn B!O Reso AJ_doc
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c. Geotechnical observations and testing shall continue over the course of the projecfs
construction. Field review during site grading shall allow the evaluation of exposed soil
conditions, and the confinnation or revision of the assumptions and extrapolations made in
formulating the design parameters set forth in the geotechnical report. Construction shall
be observed and documented by a geotechnical engineer.
d. A wind erosion and dust control plan shall be submitted to and approved by the City prior
to issuance of grading permits. The control of fugitive dust during construction, as well as
the control of other contaminants during and after the construction process.
C.4. Hydrology Impacts
Proicct Conditions
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Buildout of the site will result in the construction of warehouse/distribution buildings, paved internal
streets, and paved parking courts with impenneable surfaces. In total, these improvements will cover
approximately]] 0 acres of the site and will significantly increase storm water runoff generated at the site.
Due to these impervious surfaces, many of the existing drainage channels will be replaced with drainage
pipes that will run underneath the paved surfaces of the proposed facility. Under proposed conditions, the
existing earth and rock storm drain channels will discharge overspill into a planned detention basin that is
to be located in about the same area as the existing retention basin. The planned detention basin will limit
flow to less than existing conditions under the one hundred (100) year event. The planned detention basin
will also still have some surplus storage capacity, but it will be designed to percolate or discharge within a
72-hour period. No substantial new sources of polluted runoff are expected, and the facility will not
violate water quality standards or waste discharge requirements. And finally, the proposed detention
basin has been designed so that runoff is decreased, and percolation into the watershed will be increased.
The proposed storm water system will not interfere with groundwater recharge such that there would be a
net deficit in aquifer volume or a lowering of the local groundwater table level.
Findings:
]. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate this impact to
a level of insignificance. The mitigation measures include the following:
a. ]n conformance with the Clean Water Act, the developer shall prepare a Storm Water
Pollution Prevention Plan (SWPPP). The SWPPP shall address: potential sources and
locations of storm water contamination; the characteristics and impacts of specific
contaminants; water sampling data; temporary and permanent erosion control practices;
construction practices that minimize storm water contamination; coordination of Best
Management Practices with planned construction activities; and compliance with city,
county, state, and federal regulations.
/"-'"
b. To keep pollutants out of surface and ground waters, mitigation measures shall include:
periodic cleaning of interior roads and parking courts; the careful control and monitoring
of pesticides and fertilizer; and the treatment of runoff prior to discharge into the proposed
detention basin.
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P Agendas,Agenda Allachmenl$',bh,hns\2C>06\09.18-06 H,lIwood CEQA FlIldin!!s & Statemem of FaCIS (E~hib)l fllO Reso .'\) doc
,- C.S. Water Resources/Quality Impacts
'-'
Proiect Conditions
Total estimated water demand for the project is 549 gallons per minute or 885 acre-feet per year. This
consumption has already been included in the San Bernardino Water Management Department's 2005
Urban Water Management Plan, as this plan has been based upon ultimate buildout conditions reflected in
the City" s General Plan. These conditions, in turn, are based upon the General Plan land use designations
for all properties within the City limits including the Hillwood parcel, with its light industrial designation.
The project represents a 1.8% increase in the amount of ground water pumped by the City Water
Department in 2004. Water required by the project is less than one one-thousandth of the 1.5 million acre
feet of water that are considered extractable from the Basin, and is less then one half of I % of the water
that is available to SBVMWD. With regard to on-site groundwater recharge, engineers for the Hillwood
project have proposed a detention basin along the site's southerly property line (at the site of the existing
retention basin) that will allow surface flows from the project site and its 32-acre off-site tributary to
percolate into the ground.
In addition, the City is required by the federal government to comply with all requirements of the National
Pollutant Discharge Elimination System (NPDES). NPDES is a part of the Federal Clean Water Act
Amendments of 1992, and it requires all local government agencies and major private industries to take
all practical measures in reducing pollution discharges into water bodies. Compliance with the
requirements ofNPDES will ensure that the water quality will not be degraded by the proposed facility.
~ Findings:
I. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate potential
water resources/quality impacts to a level of insignificance. As a result, no specific mitigation
measures are required.
C.6. Cultural Resources Impacts
Proiect Conditions
~r'"
The site is not listed on the California Register of Historical Resources. As no significant structures
remain on-site. there will be no adverse change in the significance of a historical resource as defined in
S 15064.5 of CEQA. In addition. no human remains will be disturbed including those ipterred outside of
fonnal cemetelies. The hilly northern portion of the Hillwood site is the rnost likely portion of the site to
have archaeological resources, due to the fact that the rest of the property has been graded, excavated, or
built upon. However, this hilly area will not be impacted by the project; therefore, impacts to
archaeological resources are not expected. As a result, the proposed project will not cause a substantial
adverse change in the significance of an archaeological resource pursuant to S 15064.5 of CEQA. The site
has no unique geological features that would suggest the existence of potential paleontological resources.
The only portion of the Hillwood site that may be considered to have a likelihood of paleontological
resources is the hilly northern portion of the site. This hilly area will not be impacted by the project;
therefore, impacts to paleontological resources are not expected. The property has been previously
developed and currently contains remnant foundations and roadways; therefore, no formal mitigation
""-
5
P:'J\gendas'.Agenda Anachmenls'ExhibilsQ006.0<,l.18.06 l:hl1wood CEQA FlIldlngs & Slatement of FaC1S (Exhlbll B 10 Reso A) doc
measures related to cultural rcsources are required for the Hillwood warehouse/distribution facility
proposal.
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Findings:
I. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequcnt environmental review, which will mitigate any potential
impacts to cultural resources to a level of insignificance. As a result, no specific mitigation
measures are required.
C.? Noise Impacts
Proiect Conditions
Project related noise impacts will be generated primarily by increases in vehicular traffic on local and
regional roadways, and construction activity. Noise generated by traffic represents a long-term noise.
impact. Traffic noise on-site will consist primarily of that generated by trucks delivering items to or from
the warehouses. Secondary traffic noise on-site will be from employee vehicles. Traffic will increase
along adjoining and nearby public roads such asl-215, Cajon Boulevard, University Parkway, and State
Street, and this increased traffic will lead to increased noise levels. Construction noise will typically
result in short-tenn, but occasionally intrusive impacts. Other noise sources will include lawn care
machinery and outdoor mechanical equipment, such as heating, cooling and ventilation equipment.
"-
The proposed project will be located in an environment that has exposure to noise levels ranging from
59.2 to 71.6 dBA CNEL. For industrial land uses, noise levels of up to 75 dBA CNEL are considered to
be acceptable. In the long term (2025), daily traffic levels are expected to double, and corresponding
noise levels are expected to rise by 3 dBA CNEL. As a result, year 2025 noise levels are expected to
range from 62.2 to 74.6 dBA CNEL on the project site. This still represents an acceptable range for
industrial uses, and impacts are expected to be less than significant.
Findings:
I. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate this impact to
a level of insignificance. The mitigation measures include the following:
a. All construction equipment operating on-site shall bc fitted with well-maintained,
functional muftlers.
b. All stationary construction equipment shall be directed away from sensitive noise
receptors.
c. Equipment staging shall be located as far as possible on the site from any noise sensitive
receptors.
d. Construction hours and haul truck deliveries shall be limited to those prescribed in City
ordinances.
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P:'A!:"'ndas,^~enda ,"'llaclllnenls,E~hlblls"2Q06\O~.18_06 llilh'ood CEQA F;ndin~s & Slalemenl of Facts (E~lubl' B 10 Re&o A) doc
,,-
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CS. Visual Impacts
Proiect Conditions
Buildout of the Hillwood project will result in the development of new structures, signage, lighting, utility
infrastructure. and other elements of the built environment. The proposed warehouses will be concrete
tilt-up shell buildings. The buildings will have simple, highly functional industrial designs and many of
the exterior finishes will be in off-whites, beiges, and earth tones. Design guidelines provide for a
maximum building height of 39 feet. The landscaping plan calls for the installation of trees and a variety
of accent plantings. Typical street trees will grow to 40 feet, and the palm trees that will be located near
the comers of the warehouse buildings will grow to about ] 8 feet. Major scenic resources are not
expected to be significantly impacted by the planned development.
Findings:
1. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate visual impact
to a level of insignificance. Mitigation measures include those listed below. '
a. The minimum landscaping buffer between any building on the project site and 1-2] 5 shall
be 25 feet.
b. The minimum building setback between any building on the project site and 1-215 shall be
50 feet.
c. Trees installed in the landscaped setback adjacent to 1-2 I 5 and University Parkway or State
Street shall be no less than 24 inch box when installed, and shall be spaced no more than
40 feet in the center.
C9. Hazardous and Toxic Materials
Proiect Conditions
The applicant has indicated that the warehouse/distribution facility will not be involved in transporting or
disposing of hazardous materials. Any potential impacts, however, can be diminished when the proposed
mitigation measures are implemented for the storage, use, and transport of such materials, even on a
temporary basis. Standard pemlitting and inspection is expected to reduce potential hazards to the public
and the environment through upset and or accident conditions involving the release of toxic materials. In
addition, no refueling activities will be located on-site, nor will there be any truck wash down facilities
on-site. In case of an accidental release, the City Fire Department includes a Hazardous Materials
Response Team that is trained to minimize the impacts of hazardous gas, liquid, and solid releases upon
lives, property, and the surrounding natural environment. Given its location along 1-215, University
Parkway, and Cajon Boulevard, the Hillwood site has easy access to respondents.
Findings:
I.
Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate the potential
impacts associated with hazardous and toxic materials to a level of insignificance. Mitigation
measures include those listed below.
P:\A!;<,ndasIAg<,nda AlIachm<,nlsE~h,bI1S< 2006"09-1 5-06 H,!Iwood CEQA FlndtnJ;S & Slalcm<,nl of Facls (E~h,b'l B 10 Rcso A),Goc
7
a.
-.
,
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b.
c.
A permitting and inspection program for hazardous wastes on-site must be implemented
and monitored to assure that no hazardous wastes are released into the soil, the air, or the
water table.
Fueling, lubricating, and all major maintenance of vehicles shall be prohibited on-site.
Vehicle wash-out and clean-off shall be prohibited on-site unless specific facilities to
protect groundwater resources have been permitted and installed.
C.IO. Socio-Economic Impacts
Proiect Conditions
The warehouse facility enhances the City's economic development effort and constitutes an allowed use
within the light industrial land use designation. The warehouse/distribution operations will contribute
substantially to improving the City's economic environment: will strengthen the City's role as a regional
transportation and distribution hub; and will create employment opportunities on site, as well as creating
indirect employment effects at other businesses in and around the City. Considering the significant
property taxes, utility taxes, and other revenues that will be generated by this project, construction and
operation of the warehouse/distribution facility should result in a substantial net gain to the City.
Findings:
1.
Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise required for subsequent environmental review, which will mitigate socio-
economic impacts to a level of insignificance. As a result, no specific mitigation measures are
required.
"-
C.U. Public Services and Facilities Impacts
Proiect Conditions
The project will generate only a minor demand for additional police protection from the City's Police
Department. Auto and truck traffic generated by the project may require some additional involvement
and monitoring activities by local police officers as well as the State Highway Patrol. Lighting placed
within the project area will constitute an additional safety measure for the property. The proposed
warehouse/distribution facility will generate increased demand for fire protection, emergency and medical
services. However, the project is not expected to have significant adverse impacts on these services with
the implementation of the mitigation measures below.
Buildout of the Hillwood project is projected to generate approximately 1,470 jobs, which may generate
approximately 1,009 students, which wiII place additional demands on the San Bernardino City Unified
School District. The project is not expected to have significant adverse impacts on the educational
facilities in the area. The San Bernardino City Unified School District is continually planning for growth
in order to accommodate regional population increases. In addition, the project will pay a school
mitigation fee that is expected to generate approximately $850,000.
The proposed project could generate a total of 22,302 tons of solid waste per year. Therefore, the project
will contribute to a cumulative increase in the volume of solid waste generated. Waste management
"- operations will need to be monitored to assure the safe disposal of solid waste. Sufficient landfill capacity
8
r ,Agendas' Agenda Attachments F.~tlJbjls'2006 09-18.06 Hilh.ood CEQA Flndmgs & .slall:l1lent of Facts (E1l,lIibil B to Re:;o A) doc
for the warehouse/distribution facility is available, and the project will comply with all federal, state, and
,-- local regulations related to solid waste, including recycling,
""'""
With regard to water services, a 16 inch diameter water main is located at the north end of the Hillwood
site along University Parkway, and 12 inch water mains will be extended into the project site, Anticipated
project water demand is 885 acre-feet per year and this includes both indoor and outdoor demand, This
represents less than 2% of water extracted by the City from the Basin and only a small fraction of the
5,000,000+ acre-feet of groundwater stored in the Basin, Domestic water to the site will be available by
installation and extension of proposed water mains, and impacts of the project upon water services are
expected to be less than significant
The project will generate up to 240 acre-feet (or 78,2 million gallons) per year of wastewater from indoor
operations or up to 2] 4,246 gallons per day, The SBWRP treatment system has a capacity of 33 million
gallons of wastewater per day, Thus, wastewater from the proposed project will represent an increase in
wastewater of less than I % of total system capacity,
The project is estimated to generate a monthly demand of 6,053,762 cubic feet of natural gas at buildout
Buildout of the warehouse/distribution facility will increase the demand of this non-renewable, fossil fuel
energy source, and will contribute to a cumulative effect upon the long-term availability of natural gas,
However, the proposed project at completion in 2007/2008 is not expected to significantly impact natural
gas supplies, gas distribution infrastructure, or the utility's ability to deliver gas,
The proposed project will generate additional demand for electrical power. Electrical service lines will be
brought to the interior of the Hillwood site from the 12kV line along University Parkway, The proposed
,_' warehouse/distribution facility will generate an estimated demand of 8,958,316 Kwh per year, though
""- actual demand may be by impacted by a number of factors including project design, Sufficient electrical
capacity exists to serve the project, and no significant impacts are associated with the provision of
electricity to this site,
In addition, the proposed warehouse/distribution facility is not expected to have any significant impact
upon the existing telecommunications network or the existing public transportation infrastructure,
Findings:
I, Changes of alterations have been required in, or incorporated into the project, which
substantially lessen significant environmental effects as identified in the Final EIR,
a, Project planning and development shall be reviewed by the City Fire Department, who
shall provide comments and requirements to be incorporated into design plans and
conditions of approval for the project These requirements, including fully sprinklered
buildings throughout the site, will hclp to reduce potential impacts,
b, Area wide circulation improvements, including restriping of the northbound and
southbound 1-215 access ramps, the completion of 1-210 located south of the project
site along State Street approximately one block south of Highland Avenue, and the
railroad grade separation on Cajon Boulevard,
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PAgendas'Agcnda Ana::runenls\bhib,ts ,]QOf,09.18-06 H,llwood CfQ." Findongs &. Slalcmcnl of hct~ (Exhibit B to Reso A) doc
D.
SIGNIFICANT ENVIRON1\IENTAL IMPACTS WHICH CANNOT BE A VOIDED IF THE
PROJECT IS IMPLEMENTED
,-..
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D.1. Traffic/Circulation Impacts
Proiect Conditions
Project buildout is expected to occur in 2007. In order to estimate background traffic volumes at study
area intersections at project buildout, a 2% growth rate was applied to the existing condition (2004,
updated 2005) volumes. Using local data for distribution centers in the Inland Empire collected by
NAJOP, the project is expected to generate 4,757 daily passenger car equivalent (PCE) trips, with 309
PCE trips occurring during the AM peak hour and 330 PCE trips occurring during the PM peak hour.
With no improvements at project buildout, all study intersections are projected to operate at satisfactory
levels of service except for three (3) along University Parkway, including Hallmark Parkway and the 1-
215 southbound and northbound ramps. However, with the improvements outlined in the mitigation
measures below, all of the intersections in the project area operate at acceptable levels. However, with the
mitigation measures outlined below, all study area intersections are projected to operate at satisfactory
levels under year 2008 with project conditions.
Under year 2025, cumulative with project conditions and without improvements, all study intersections
are projected to operate at satisfactory levels of service, with the exception of the following: State
StreetJl-210 westbound ramps; Project Access/University Parkway; 1-2 I 5 southbound ramps/University
,-. Parkway; 1-215 northbound ramps/University Parkway; and Kendall Drive/University Parkway. In
'-' addition, queuing at the southbound on-ramp will at times extend back to Hallmark Parkway, disrupting
operations at the intersection of Hallmark Parkway/University Parkway. Also, the segment of State Street
between Highland A venue and Nolan Street is projected to operate at an unsatisfactory level of service.
However, with the mitigation measures outlined below, all study area intersections arc projected to
operate at satisfactory levels under cumulative year 2025 with project conditions. It should be noted that
these improvements are required for the location transportation system to operate at satisfactory levels of
service with or without the proposed project.
Findings:
]. Changes, alterations, and other measures have been made in or incorporated into the plan, or
are otherwise being implemented, which will mitigate this impact to the extent feasible.
a. It will be the responsibility of the project developer to pay Developer Impact Fees (DIF)
for regional circulation improvements.
b. Maintain unimpeded emergency access under the BNSF railroad grade separation at
University Parkway. In addition, north of the overpass, the emergency access north of
overpass shall be maintained by the City and future development will be required to
accommodate access.
..........
c. The restriping of the northbound and southbound 1-215 access ramps and the completion of
the 1-21 0 located south of the project site along State Street approximately one (I) block
south of Highland A venue. Without these improvements, impacts associated with the
project traffic generation cannot be mitigated to less than significant levels.
10
I'\_<l,~~ndah"'genda Anachmcnts\hhibllS\2D06'09.18.06 Ililh\ood CEQA FlIldings & Statement ofFac'~ (E>;hibil B to Reso A) doe
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d. Additional intersection specific rccommendations that will reduce background traffic
impacts to insignificant levels are presented in the EIR and the project traffic study.
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0.2. Ai.. Quality Impacts
Proiect Conditions
The development of the proposed Hillwood warehouse/distribution center will result in the generation and
emission of air pollutants both locally and regionally. Site disturbance, including demolition, grading and
construction activities are expected to generate potentially significant impacts with mitigation. However,
these activities will phase of short duration and will cease with completion of the project. Demolition,
grading and development permits shall be reviewed and conditioned to require the provision of all
reasonably available methods and technologies to assure the minimal emissions of pollutants from the
development, including proper vehicle maintenance and site watering schedules. In addition, mitigation
measures to be implemented include, but are not limited to, the use of water trucks and temporary
irrigation systems, post-grading soil stabilization, phased roadway paving, as well as other measures,
which will effectively limit fugitive dust emissions resulting from construction or other site disturbance.
~-".--'
Operation of approximately 2,000,000 square feet of warehouse/distribution space is estimated to generate
approximately 4,757 trip-ends per day, with 2,664 trips for passenger vehicles and 2,093 trips for trucks.
Daily operation of these vehicles will result in the direct and indirect generation and emission of air
pollutants both locally and regionally. The most significant impacts are expected to come from the
emission of pollutants generated by vehicular and truck traffic. Other important sources of pollutants will
be emissions generated during demolition activities. as well as fugitive dust from site disturbance and
other construction activities. The utilization of natural gas and electricity will also contribute to the
degradation of air quality. Emissions will contribute to regional air quality degradation in the City of San
Bernardino.
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With the application of mitigation measures, operation of the project is expected to result in the
exceedance of all emissions threshold cliteria, except for particulates, primarily due to the operation of
heavy-duty diesel trucks. The pollutant generation factors used in the moving emission calculations are
based on projected rates of emission for the year 2007. It is expected in all cases that in the future,
emitters will become more efficient and will emit less pollutants as alternative fuel and new combustion
technologies come on-line. Though the mitigation measures prescribed in the EIR will substantially
reduce the potential level of emissions, the proposed project results in unmitigatable increases in project-
related air pollutant generation.
The EIR provides for the review and approval of all grading and development permits, and the provision
of all reasonably available methods and technologies to assure the minimal emissions of pollutants
generated by the project. The EIR also directs the City to assure the implementation of federal, state,
regional, and local programs that reduce construction emissions and provide monitoring of grading and
construction activities.
The EIR also directs the developer to, as feasible, incorporate energy conservation measures and features
into project design and development. Mitigation measures are derived from the South Coast Air Quality
Management District's CEQA Air Quality Handbook and from City and other SCAQMD policies.
Implementation of the mitigation measures in the EIR and Final EIR are expected to reduce project
operational impacts to air quality to the greatest extent practicable.
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P"'Al,'cndas\Agenda Anachmenls\E~hjbjls''.2006\OQ.lg.0tl Hill"ood CEQA Fmdmgs & Slalemem of Fa"s (E\hlbil B 10 Reso A)ooc
Findings:
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1.
Changes and other measures have been made in or incorporated into the plan, or are otherwise
required for subsequent environmental review, which will partially mitigate to the extent
feasible the significant air quality impacts, including the following:
a. Development and grading permits shall be reviewed and conditioned to require the
provision of all available methods of assuring minimal pollutant emissions trom the
proposed project
b. The City shall encourage the phasing and staging of development projects to assure the
lowest construction-related pollutant emission levels practical, and shall require the use of
water trucks, temporary irrigation systems, and other measures, which will limit fugitive
dust emissions during site disturbance and construction.
c. Encourage developers to adopt ride-share, vanpool, flex-time, and telecommuter programs
to reduce peak hour vehicular traffic.
d. An Erosion Control Plan for construction operations shall be submitted with all
development proposals and shall include detailed descriptions of dust management
controls to be implemented.
2. Most significant environmental effects that can feasibly be avoided have been substantially
reduced by virtue of mitigation measures in the Final EIR or otherwise incorporated into the
plan as described in "1" above.
~.,._c.,._
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a. The remaining unavoidable significant effects are acceptable when balanced against the
facts set forth in the Statement of Overriding Considerations, giving greater weight to the
remaining unavoidable significant effect
D.3. Fire and Emergency Services Impacts
Proiect Conditions
The proposed warehouse/distribution facility will generate increased demand for fire protection services.
The structures within the project will be constructed to City Fire Department standards, and will include
automatic sprinkler systems. Any hazardous materials potentially stored within the structures may result
in a need for special services or equipment In the short-tenD, in the opening year (2007), impacts of the
project upon fire protection and emergency services could be significant due to an incomplete emergency
ingress/egress route. The master site plan provides adequate access for emergency vehicles to reach all
portions of the site in the event of an emergency. However, the emergency access route could be
impacted prior to the completion of the BNSF railroad grade separation in 2008.
Emergency access to the project site will he provided under the BNSF railroad grade separation at
University Parkway immediately northwest of the project site. The current design provides approximately
35 foot wide access north and south of the overpass and approximately 20 foot wide access under the
overpass. The overpass is only about 90 feet wide, but the length of the emergency access under the
overpass is approximately 130 feet due to the skewed angle. The height of the overpass is approximately
27 feet, which is expected to provide ample room for emergency equipment access.
... "",,~...
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In addition, under 2008 traffic conditions, four (4) intersections will not meet minimum levels of service,
and improvements will be required to improve vehicle flow and emergency response time after the
12
P\A~endas,Allcnda Att3chmenls\E\hibilS'2006'09-IS-06 H,llwood CEQA Findinl;5 & Statement of Facts {Exhlbll B 10 Re$o A) doc
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warehouse/distribution facility has been built. Road and intersection improvements required includes an
eastbound right turn lane and a northbound right turn lane at the projects entrance along University
Parkway; a southbound Icft turn lane and a westbound right turn overlap at the Hallmark Parkway
intersection with University Parkway; a southbound loop on-ramp, a third eastbound lane, and a second
westbound through lane at University Parkway and the 1-215 southbound ramps; and a northbound left
turn lane, and a redesign to provide unobstructed movement into University Parkway at the 1-215
northbound ramps.
Findings:
With the completion of the BNSF railroad grade separation (expected in 2008) and the required
intersection improvements required under 2008 traffic conditions (one (I) year after project opening), the
potential short-term significant impacts associated with fire and emergency services will be mitigated to
insignificant levels.
13
, P'\Ag~nda~\Agtllda A11i1cllmcIlIS\EllhibiIS"2006,09.18.06 Hill,.,ood CEQA Findings & Slalemcnl afFacts (E:'lhibil B 10 Rc:so A) doc
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3
4
5
6
,
8
9
10
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RESOLUTION NO.
RESOLUTION OF THE COMMl1NITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO (1) APPROVING THE 2006 DISPOSITION
AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND HSB 1-215, A CALIFORNIA LIMITED PARTNERSHIP
AND SE 1-215, A CALIFORNIA LIMITED PARTNERSHIP (COLLECTIVELY
REFERRED TO AS "HILLWOOD"); (2) AUTHORIZING THE EXECUTIVE
DIRECTOR OF THE AGENCY TO EXECUTE SAID DDA RELATING TO
THE TRANSFER OF THE AGENCY PROPERTY LOCATED SOUTH OF THE
HILLWOOD PROPERTY AND WEST OF THE 1-215 FREEWAY - (10.53
ACRES IN THE CITY OF SAN BERNARDINO) ("AGENCY PROPERTY"); (3)
ACCEPTANCE BY THE AGENCY OF THE ADJACENT EXCHANGE
TRACT; AND (4) MAKING CERTAIN FINDINGS THERETO RELATED TO
THE DEVELOPMENT OF THE PROJECT
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
is a public body, corporate and politic existing under the laws of the State of California, Healt
12
and Safety Code 33101, and is charged with the mission of redeveloping blighted an
underutilized land; and
WHEREAS, the Agency is the current owner of that certain real property consisting 0
14
15
approximately 10.53 acres (APN: 0148-011-39 AND APN: 0266-073-08) located south of th
Hillwood property and west of 1-215 Freeway, (the "Agency Property") in the State Colleg
16
Redevelopment Project Area ("Project Area"); and
17
18
WHEREAS, the Agency has determined that the Agency Property is no longer neeessar.
for the Agency's use; and
19
WHEREAS, an updated MAl appraisal of the Agency Property has bee
completed by Villegas Appraisal Company (the "Appraisal"), and said Appraisal has confirme
the fair market value of the Agency Property to be Nine Hundred Seventy Thousand Dollar
20
21
00
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($970,000); and
23
WHEREAS, the Agency is entering into a 2006 Disposition and Development Agreemen
24
(the "DDA") with HSB 1-215, a California Limited Partnership and SE 1-215, a Californi
~ 25 Limited Partnership (collectively referred to as "Hillwood") pursuant to which the Agency wil
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P:\Agtl1das\ResoluliOlIlIRf'solulions\2006\09-18-06 Ilil1.."nod CDC RUIl B.dot
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2
transfer the Agency Property to Hillwood in exchange for property which Hillwood owns alon
the south side of University Parkway ("Exchange Trace); and
WHEREAS, the fair market value of the Exchange Tract is in excess of that of $1.8
3
4
million; and
5
WHEREAS, the Exchange Tract is necessary for the University Parkway/BNSF trac
6
crossing improvement; and
7
WHEREAS, the DDA provides for the reconfiguration and development of the Agency
8
Property into a flood control retention basin, and adjacent property owned by Hillwood to b
developed into approximately six (6) warehouse/distribution facilities totaling approximatel
9
10
2.000,000 square feet (the "Project"); and
WHEREAS, the Agency has prepared and published a notice of joint public hearing i
II
The San Bernardino County Sun Newspaper on September 4 and 11, 2006, regarding th
12
consideration and approval of the DDA and also the certification of a Final Environmenta
13
Impact Report ("FEIR") related to the Project in accordance with California Environmenta
14
Quality Act ("CEQA"); and
15
WHEREAS, pursuant to Health and Safety Code Section 33433, the Agency may transfe
the Agency Property to the Hillwood subject to the Mayor and Common Council ("Council"
16
17
and Community Development Commission ("Commission") adopting a Resolution consenting t
18
and authorizing the Agency to transfer the Agency Property in light of the findings set fort
19
herein, pursuant to Health and Safety Code Section 33433; and
20
WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety
.
21
Code Section 33433 that describes the salient points of the DDA and identifies the cost of the
22
DDA to the Agency; and
23
WHEREAS, the Agency is the "lead agency" for the Project, under CEQA, California
24
Public Resources Code Sections 21000, et ~, in accordance with Public Resources Code
Section 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and
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2
12
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'- 13
14
15
16
]7
18
19
20
21
22
23
24
....""'.".
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3
WHEREAS, the FEIR was prepared with respect to the Project in accordance with th
provisions of CEQA and the CEQA Guidelines developed thereunder and the Commission ha
concurrently taken action certifying the FEIR; and
WHEREAS, it is appropriate for the Commission to take action with respect to th
disposition of the Agency Property to the Hillwood by the Agency and to approve the DDA a
4
5
6
set forth in this Resolution.
7
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BE~NARDINO DOES HEREBY RESOLVE, DETER!\1lNE AND ORDER, AS
FOLLOWS:
8
9
Section 1.
On September 18, 2006, the Commission, as the governing board of th
10
11
Agency, conducted a full and fair joint public hearing with the Council, relating to th
disposition of the Agency Property from the Agency to Hillwood and the development thereo
pursuant to the DDA. The minutes of the City Clerk for the September 18,2006, meeting ofth
Commission shall include a record of all communication and testimony submitted to th
Commission by interested persons relating to the public hearing and the approval of the DO
I and the Certification of the FEIR and Mitigation Monitoring Measures.
Section 2.
The Commission hereby receives and approves the 33433 Report and th
other written materials submitted to the Commission at the meeting at which this Resolution i
adopted. The 33433 Report contains information required under Health and Safety Code Sectio
33433.
Section 3.
This Resolution is adopted in satisfaction of the provisions of Health an
Safety Code Section 33433 relating to the disposition and the transfer of the Agency Property b
the Agency to Hillwood on the terms and conditions set forth in the DDA. A copy of the DO
in the form submitted at this joint public hearing is on file with the City Clerk. The Commissio
hereby finds and determines that the disposition and redevelopment of the Agency Property b
Hillwood, in accordance with the DDA, is consistent with the Project Area Redevelopment Plan
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the Five Year Implementation Plan and the City's General Plan and that the value of the transfe
c
of the Exchange Tract by Hillwood to the Agency as the purchase price for the Property,
pursuant to the DDA, is an amount that is in excess of the fair market value of the Agenc,
3
4
Property.
Section 4.
The Commission hereby approves the DDA. The Executive Director i
5
hereby authorized and directed to execute the DDA on behalf of the Agency together wit
6
non substantive and conforming changes as may be recommended by the Executive Director an
7
Agency Counsel. The Executive Director is hereby authorized to take all appropriate actions a
8
set forth in the DDA to implement the disposition, redevelopment of the Agency Property an
9
acceptance of the Exchange Tract.
10
The Resolution shall become effective immediately upon its adoption.
Section 5.
11
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16 /1/
17 /II
18 /II
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25 /II
'.......
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO (I) APPROVING THE 2006 DISPOSITION
AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND HSB 1-215, A CALIFORNIA LIMITED PARTNERSHIP
AND SE 1-215, A CALIFORNIA LIMITED PARTNERSHIP (COLLECTIVELY
REFERRED TO AS "HILLWOOD"); (2) AUTHORIZING THE EXECUTIVE
DIRECTOR OF THE AGENCY TO EXECUTE SAID DDA RELATING TO
THE TR<\NSFER OF THE AGENCY PROPERTY LOCATED SOUTH OF THE
HILLWOOD PROPERTY AND WEST OF THE 1-215 FREEWAY - (10.53
ACRES IN THE CITY OF SAN BERNARDINO) ("AGENCY PROPERTY"); (3)
ACCEPTANCE BY THE AGENCY OF THE ADJACENT EXCHANGE
TR-\CT; AND (4) MAKING CERTAIN FINDINGS THERETO RELATED TO
THE DEVELOPMENT OF THE PROJECT
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Communit
Development Commission of the City of San Bernardino at a
meetin
thereof, held on the
day of
, 2006, by the following vote to wit:
Commission Members:
Nays
Abstain
Absent
Aves
ESTRADA
BAXTER
VACANT
DERRY
KELLEY
JOHNSON
MC CAMMACK
19
Secretary
20
The foregoing resolution is hereby approved this
day of
,2006.
21
22
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
23
24
By:
f/;:{
Agency
-5-
1';'.\ltellda~\RnoluliQI1'\ReS(llulio,,'s"2006\09-18-06 Hill,,'ood CDC Rno D.doe
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,- RECORDING REQUESTED BY AND
....... WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attention: Executive Director
(Space Above Line for Use By Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
2006
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
'-
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
HSB 1-215, L.P. A CALIFORNIA LIMITED PARTNERSHIP,
AND
SE 1-215, L.P., A CALIFORNIA LIMITED PARTNERSHIP
'~
.
_.
2006
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND HSB 1-215, L.P. AND SE 1-215, L.P.
'-'
THIS 2006 DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement")
is entered into as of September 18. 2006, 2006, by and between the Redevelopment Agency of the City
of San Bernardino, a public body, corporate and politic (the "Agency"), and HSB 1-215, L.P., a
California Limited Partnership, and SE 1-215, L.P., a California Limited Partnership (collectively,
"Developer"). The Agency and the Developer hereby agree as follows:
Section 1.01. Purpose of Agreement. The purpose of this Agreement is to implement
the Redevelopment Plan for the State College Redevelopment Project Area (the "Redevelopment
Plan") by providing for the purchase and redevelopment of certain unimproved land by the Developer.
The land, which are subject to this Agreement and is intended to be transferred from the Agency to the
Developer, is referred to herein as the "Property". As of the date of this Agreement, the Property is
owned by the Agency, and the Property is more particularly described in Exhibit "A" attached hereto.
The redevelopment of the Property pursuant to this Agreement is in the vital and best interests of the
City of San Bernardino (the "City") and the health, safety and welfare of its residents, and in accord
with the public purposes and provisions of applicable state and local laws. The Agency has
determined that the development and use of the Property contemplated by this Agreement is consistent
with the Redevelopment Plan for the State College Redevelopment Project Area.
Section 1.02. The Propertv and the Proiect. The Property includes approximately
'-' 10.53 acres of land, more or less, and is situated within the City of San Bernardino, California, and
referred to as Assessor's Parcel Numbers 0148-011-39 and 0266-073-08. Promptly following the
purchase of the Property from the Agency and the obtaining of all applicable governmental approvals
and permits, the Developer shall undertake the redevelopment, improvement and use of the Property
primarily for its continued use as a storm drain facility improved to accommodate storm water
drainage from the improvements planned to be constructed on approximately 142 acres adjacent to the
Property currently owned by the Developer described in the attached Exhibit "B". The term "Full
Development Site" as used in this Agreement means the property described in the attached Exhibit "8"
save and except the Exchange Tract (hereinafter defined). The Property, together with the Full
Development Site is referred to in this Agreement as the "Project Site". The development of Full
Development Site is referred to herein as the "Project". The Developer represents to the Agency that
the Project is planned to consist at full build-out of not less than 2,000,000 square feet of industrial,
warehouse and distribution facility buildings, with a portion of the Property to be used for parking and
traffic circulation but with the majority of the Property to be used for a storm drainage detention basin.
It is contemplated that the Project will be developed in phases based upon market conditions and City
approvals. The first phase of the development of the Project will consist of approximately 700,000
square feet of industrial, warehouse and distribution facility building or buildings, together with
ancillary streets, utilities, parking and other related improvements, as generally shown on the attached
Exhibit "c" ("Phase I"). It is contemplated that there will be further development of the Full
Development Site so that within five (5) years after the Close of Escrow (hereinafter defined) an
aggregate of not less than 2,000,000 square feet of building square footage will have been developed
r on the Full Development Site. The Developer represents that it has commenced the process for the .
\...... City review and approval of the development of Phase I. The term "Phase II" as used in this
Agreement means the completion on the Full Development Site (including Phase I) of the lesser of (a)
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at leasi 2,000,000 square feet of industrial, warehouse and distribution facility buildings, or (b) the
maximum square footage of industrial, warehouse and distribution facility buildings that the City will
permit to be constructed on the Full Development Site.
Section 1.03. Parties to the Agreement.
(a) The Agency is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under Chapter 2 of the Community Redevelopment
Law of the State of California (Health and Safety Code Section 33000, et seq.). The principal office of
the Agency is located at 20 I North "En Street, Suite 30 I, San Bernardino, California 92401.
(b) The Developer consists of two California limited partnerships. The principal
office of the Developer is !O5 North Leland Norton Way, Suite 3, San Bernardino, California 92408.
(c) The City of San Bernardino is not a party to this Agreement and shall have no
obligations pursuant to this Agreement except to the limited extent as provided in Section 3.09(b)
hereof.
---
Section 1.04. Restrictions Against Change in Ownership. Mana~ement and Control of
Developer and Assignment of Agreement. The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those qualifications and identity that the Agency has
entered into this Agreement with the Developer. Prior to the issuance of the Certificate of Completion
as set forth in Section 3.07, no voluntary or involuntary successor in interest of the Developer shall
acquire any rights or powers under this Agreement except as expressly set forth herein. Except as set
forth in Section 3.04, the Developer shall not assign all or any part of this Agreement or any rights
hereunder prior to the issuance of the Certificate of Completion with respect to the Project on the Full
Development Site without the prior written approval of the Executive Director of the Agency, which
approval shall not be unre'lsonably withheld or delayed.
(-
I.....-
The Developer shall promptly notify the Agency in writing of any and all changes prior
to the issuance of the Certificate of Completion whatsoever in the identity of the business entities and
individuals in control of the Developer, as well as any and all changes in the interest or the degree of
control of the Developer by any such party, of which information the Developer or any of its partners
or officers have been notified or may otherwise have knowledge or information. This Agreement may
be terminated by the Agency prior to the Close of the Escrow as set forth in Section 2.03 if there is any
significant or material change, whether voluntary or involuntary, in membership, ownership,
.
management or control of the Developer (other than such changes permitted under Section 3.04 or
occasioned by the death or incapacity of any individual) that has not been approved by the Agency
prior to the time of such change, or the Agency may seek other appropriate relief in the event that at
any time following the Close of Escrow and prior to issuance of the Certificate of Completion such a
change in control of the Developer occurs with respect to the Project; provided, however, that (i) the
Agency shall first notify the Developer in writing of its intention to terminate this Agreement or to
exercise any other remedy, and (ii) the Developer shall have twenty (20) calendar days following its
receipt of such written notice to commence and thereafter diligently and continuously proceed with the
cure of the default of the Developer hereunder and submit evidence of the initiation of satisfactory
completion of such cure to the Agency in a form and substance deemed satisfactory to the Agency, in
its reasonable discretion.
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Section 1.05. Benefit to Proiect Area. The Agency has determined that the
development of the Full Development Site in accordance with this Agreement will materially assist in
the elimination of blight and the implementation of the Redevelopment Plan for the State College
Redevelopment Project Area.
ARTICLE II
DISPOSITION OF THE PROPERTY
Section 2.01. Purchase and Sale of the Propertv. Subject to all of the terms, conditions
and provisions of this Agreement and for the consideration of the Purchase Price as herein set forth, the
Agency hereby agrees to sell to the Developer merchantable lien free fee simple title and the
Developer hereby agrees to purchase the following:
all of the right, title and interest of the Agency in the Property as more fully described in
Exhibit "A," including all right, title and interest ofthe Agency in and to any land lying
in the right-of-way of any existing or proposed highway, street, road, avenue or alley
abutting or adjoining the Property.
The purchase price which the Agency agrees to accept from the Developer and which
the Developer agrees to deliver to the Agency for the Property is the conveyance to Agency, in
exchange for the Property, of the tract currently owned by Developer described on the attached Exhibit
"D" (the "Exchange Tract"). The term "Purchase Price" as used in this Agreement means the
Exchange Tract. The fair market value of the Property is $970,000, based on a current appraisal (the
"Property FMV"). The fair market value of the Exchange Tract exceeds the Property FMV. The
Purchase Price shall be delivered to the Agency as provided in Section 2.02 below.
---
Section 2.02. Deposit and Payment of Purchase Price.
(a) Within five (5) business days following the execution of this Agreement by both
parties, the Developer shall deliver to the Escrow Holder (as hereinafter defined) the sum of $10,000.
This sum upon its receipt by the Escrow Holder is referred to in this Agreement as the "Deposit".
Upon receipt of the Deposit together with a fully executed copy of this Agreement, the Escrow Holder
shall cause the Escrow (as hereinafter defined) to be opened as provided in Section 2.03, and the
Escrow Holder shall place the Deposit into an interest-bearing escrow account with the interest thereon
to accrue to the benefit of the Developer. At the Close of Escrow (as hereinafter defined), the Deposit
shall be returned to Developer.
(b) Deliverv of Purchase Price. The Developer shall tender to the Escrow Holder on
the Closing Date (as hereinafter defined) a grant deed which shall convey the Exchange Tract to the
EDA (the "Developer Grant Deed") with such Developer Grant Deed containing such provisions
relating to the condition of title and the environmental and physical conditions of the Exchange Tract
to thus allow for the transfer of fee title, or the offer of dedication, of the Exchange Tract by the
Agency to the City for public rights-of-way purposes as provided below with no further obligations on
the part of the Agency.
'-
(i) The conveyance of the Exchange Tract shall be handled through Escrow
in the same manner that the conveyance of the Property by the Agency to the Developer is handled
through Escrow under this Agreement, with the same title exceptions under Section 2.05 to the extent
4838-7503-7441.5 - 9/11/06 cl
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applicable to the Exchange Tract (and approved by the Agency where approval by the Developer is
provided) and with the same respective closing conditions under Sections 2.06 and 2.07 (with Section
2.06 being applicable to the Developer and Section 2.07 being applicable to the Agency). The fonn
of the Developer Grant Deed shall be substantially in the form of the Agency Grant Deed (hereinafter
defined) with appropriate modifications, subject to Section 3.01(bb) and to the reasonable approval of
the Developer and the Agency.
'-
(ii) The Agency shall have the same inspection and review rights with
respect to the Exchange Tract as the Developer has with respect to the Property under Sections 2.08
and 2.09 below. The Agency may terminate this Agreement by the end of the Due Diligence Period
if, for any reason, it is not satisfied with the condition, title or any other aspect of the Exchange Tract.
(iii) The disclaimers, release, review right, title objection right and covenants
under Sections 2.12 and 2.13 also shall be applicable to the Exchange Tract, with the "Developer"
meaning "the Agency" and "the Agency" meaning the "Developer".
(iv) The Developer will deliver to the Agency a current survey of the
Exchange Tract, meeting the material requirements for the Survey (hereinafter defined) under Section
2.14 below.
(v) An additional condition of the Agency's obligation to close under
Section 2.17 shall be the Agency's satisfactory review and approval of the Exchange Tract and the
performance of the Developer's material obligations under this Agreement with respect to the
Exchange Tract.
........
(vi) The Developer Grant Deed shall contain the following provisions (the
"Use Provisions"):
A. The Agency (before the City accepts dedication of the Exchange
Tract) and the City (after it accepts dedication of the Exchange Tract) shall use the Exchange Tract
only for the purpose of constructing, operating and maintaining the roadway and other improvements
generally described and shown on the attached Exhibit "G", with such modifications thereof as the
City determines appropriate for the contemplated grade crossing of University Parkway over the BNSF
railroad line, the curb-out for the street providing access to the Full Development Site, the provision of
a route for utilities to serve the Full Development Site and for the City Fire Department emergency
access to the Full Development Site, and access for all other public agencies and other public utility
companies as determined appropriate by the City and access for the BNSF Railroad .for purposes of
access to the BNSF railroad line (the "Exchange Tract Roadway Improvements").
B. Prior to the completion and opening to public use of the
Exchange Tract Roadway Improvements the City shall use reasonable efforts to provide access by the
Developer to the Full Development Site during construction activities on the Full Development Site
from either University Parkway or the Exchange Tract.
,od.''''
C. The City, during the construction of the Exchange Tract
Roadway Improvements, shall undertake reasonable efforts to plan and pursue such construction so
that vehicular access to the Full Development Site is reasonably available from University Parkway to
the extent possible under the circumstances.
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D. The Developer and the Agency shall reasonably cooperate with
the City in the precise wording of the above use provisions provided that the substance and purpose of
such provisions is not diminished.
(c) The Deposit (less an amount equal to the customary and reasonable escrow
cancellation charges of the Escrow Holder) shall be returned to thle Developer in the event that:
(i) the Agency terminates this Agreement pursuant to Section 2.02(b )(ii)
or the Agency or the Developer terminates this Agreement pursuant to Section 2.03(b); or
(ii) the Developer's conditions precedent to the Close of Escrow described
in Section 2.16(1), (2), (3), (4) or (5) are not satisfied (unless satisfaction has been waived by the
Developer) and this Agreement is terminated by the Developer; or
(iii) the Property or the Exchange Tract is materially damaged prior to the
Close of Escrow, or an action of eminent domain is commenced by a governmental entity with respect
to the Property prior to the Close of Escrow, and the Developer, or the Agency, respectively, elects to
terminate this Agreement pursuant to Section 2.25; or
(iv) Upon the Closing as defined in Section 2.03(c).
Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale of the Property and the conveyance of the Exchange Tract
for the Property shall take place through an Escrow (the "Escrow") to be administered by Land
America Title Insurance Company, 1920 Main Street, Suite 1200, Irvine, California 92614, Attn:
Kathleen Huntsman: Escrow Department or such other escrow or title insurance company mutually
agreed upon by the Seller and the Agency (the "Escrow Holder"). The Escrow shall be deemed open
("Opening of Escrow") upon the receipt by the Escrow Holder of a fully executed copy of this
Agreement and the Deposit. The Escrow Holder shall promptly confirm to the parties the escrow
number and the title insurance order number assigned to the Escrow.
(b) In the event that the Developer has not delivered its Due Diligence Approval
Certificate to the Agency and the Escrow Holder within one hundred twenty (120) days from the
Opening of Escrow (as such date may be extended pursuant to Section 2.15) for any reason, then in
such event this Agreement shall terminate upon written notice to the Escrow Holder from either the
Agency or the Developer, whereupon the Deposit shall be returned by the Escrow Holder to the
Developer (less an amount equal to the customary and reasonable escrow cancellation charges payable
to the Escrow Holder) without further or separate instruction to the Escrow Holder, and the parties
shall each be relieved and discharged from all further responsibility or liability under this Agreement.
(c) Provided that the Developer has delivered its Due Diligence Approval
Certificate within the period of time authorized in Section 2.03(b), then the Closing Date of the Escrow
shall occur within sixty (60) calendar days thereafter, subject to the provisions of Section 2.16 and
Section 2.17. The words "Close of Escrow," "Closing Date" and "Closing" shall mean and refer to the
date when the Escrow Holder is in receipt of the Purchase Price and the related Escrow documents of
the parties and the Escrow Holder is in a position to comply with the final written escrow closing
instructions of the parties and cause the Agency Grant Deed for the Property to be recorded and the
policy of insurance for the Property to be delivered to the Developer.
4838.7503.7441.5-9111106c' 5
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(3)
(4)
(5)
(6)
(7)
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Sectian 2.04. Escraw Instructians. This Agreement also. canstitutes escraw
instructians af the parties to. the Escraw Halder. Additianally, the Develaper and the Agency each
agree to. execute the custamary supplemental escrow instructians af the Escrow Halder in the farm
pravided by the Escraw Halder to. its clients in real praperty escrow transactians administered by it. In
the event af a canflict between the additianal terms af such custamary supplemental escrow
instructians af the Escraw Halder and the provisians af this Agreement, this Agreement shall
supersede and be cantrolling. Upan any terminatian af this Agreement ar cancellatian af the Escraw,
the Develaper shall be salely respansible far the payment af the escraw cancellatian casts af the
Escraw Halder, the Escraw Halder shall farthwith return all manies (as provided in this Agreement)
and dacuments, less anly the Escrow Halder's custamary and reasanable escrow cancellatian fees and
expenses, as set farth herein.
Sectian 2.05. Canvevance af Title. On ar befare 12:00 naan an the business day
preceding the Clasing Date, the Agency shall deliver to. the Escraw Halder a grant deed in the farm
attached hereto. as Exhibit "E" (the "Agency Grant Deed") duly executed and acknawledged by the
Agency, which Agency Grant Deed shall canvey to. the Develaper all af its merchantable title to. the
Property, in a lien free status, including all af the right, title and interest af the Agency in the Praperty.
The Escraw Halder shall be instructed to. recard the Agency Grant Deed in the Official Recards afSan
Bernardino. Caunty, Califarnia, if and when Escraw Halder halds the variaus instruments and funds far
the accaunts af the parties as set farth herein and can abtain far the Develaper a CL T A awner's
standard caverage palicy af title insurance ("Title Pal icy") issued by Land America Title Insurance
Camp any, 325 West Haspitality Lane Suite 100, San Bernardino., Califarnia 92408, Attn: Ken
Bellerose, ar such ather title insurance campany mutually agreed upan by the parties ("Title
Campany") with liability in an amaunt equal to. the Purchase Price tagether with such endarsements to.
the palicy as may be reasanably requested by the Develaper, insuring that the Praperty with fee title to.
the Property vested in the Develaper is free and clear af aptians, rights af first refusal ar ather
purchase rights, leases ar ather passessary interests, lis pendens and manetary liens and/ar
encumbrances and subject anly to.:
nan-delinquent real property taxes;
nan-manetary title exceptians approved by t\Ie Develaper pursuant to. Sectian
2.13 belaw;
applicable provisians af the parcel map/subdivisian map far the Property as
approved by the Develaper;
the effect af the Redevelapment Plan far the State Co. liege Redevelapment
Project Area;
the effect af any canditians impased by the City as part af the develapment plan
approvals far the Project as appraved by the Develaper;
the provisians afthe Agency Grant Deed;
the applicable pravisians afthis Agreement;
the rights, if any, and to. the extent valid, af praperties acrass Interstate Highway
215, to. drain starmwater run-affunder said IH-215 anta the Praperty; and
4838-7503-7441.5 - 9/11106 ct
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such other title exceptions, if any, resulting from documents being recorded or
delivered through Escrow.
---
Section 2.06. Additional Closing Obligations of Agencv. On or before 12:00 noon
on the business day preceding the Closing Date (unless indicated otherwise), the Agency shall deliver
to the Escrow Holder (unless indicated to be delivered directly to the Developer) copies of the
following documents and other items:
(1) a certificate of non-foreign status (the "Non-Foreign Affidavit") executed by the
Agency, in the customary form provided by the Escrow Holder, and a California
Franchise Tax Board Form 590-RE executed by the Agency;
(2) two (2) duplicate original copies of the Closing Statement described in Section
2.21, duly executed by the Agency;
(2) evidence of the existence, organization and authority of the Agency and of the
authority of persons executing documents on behalf of the Agency reasonably
satisfactory to the Escrow Holder and Title Company; and
(3) any other documents, instruments, funds and records required to be delivered to
the Developer under the terms of this Agreement, which have not been
previously delivered.
~
Section 2.07. Closing Obligations of Developer. On or before 12:00 noon on the
business day preceding the Closing Date, the Developer shall deliver to the Escrow Holder copies of
the following documents and other items:
(1) an acknowledgment and acceptance of the Agency Grant Deed, duly executed
and acknowledged by the Developer;
(2) two (2) duplicate original copies of the Closing Statement, duly executed by the
Developer;
(3) evidence of the existence, organization and authority of the Developer and of the
authority of persons executing documents on behalf of the Developer reasonably
satisfactory to the Escrow Holder and the Title Company; and
(4) any other documents, instruments or funds required to be delivered by the
Developer under the terms of this Agreement or as otherwise required by the
Escrow Holder or the Title Company in order to close Escrow, which have not
previously been delivered, including those funds and documents as required by
Section 2.02(b) hereof.
Section 2.08.
Inspections and Review.
.'~
(a) Due Diligence Items. Within five (5) business days after the execution of this
Agreement, the Agency shall deliver true, correct and complete copies or originals of the following
documents and items (collectively, "Due Diligence Items") to the Developer:
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(I)
copies of all soils, seismic, geologic, drainage, engineering, environmental and
similar type reports and surveys (including, but not limited to, any Property
Environmental Site Assessments), surveys relating to the Property if any, in the
possession or control of the Agency;
"-
(2) notices of violations, including, but not limited to, zoning ordinances,
development or building codes affecting the Property within the Agency's
possession or control;
(3) disclosure of any legal matters affecting the use or condition of the Property
within the knowledge of the Agency; and
(4) a copy of the Redevelopment Plan for the State College Redevelopment Project
Area.
(b) Certain Definitions. For the purpose of this Agreement, the terms set forth
below shall have the following meaning:
,'-
(i) "environmental laws" means all federal, state, local, or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any
government authority regulating, relating to, or imposing liability of standards of
conduct concerning any hazardous substance (as later defined), or pertaining to
occupational health or industrial hygiene (and only to the extent that the occupational
health or industrial hygiene laws, ordinances, or regulations relate to hazardous
substances on, under, or about the Property), occupational or environmental conditions
on, under, or about the Property, as now or may at any later time be in effect, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA") [42 USC Section 9601 et seq.]; the Resource
Conservation and Recovery Act of 1976 ("RCRA") [42 USC Section 6901 et seq.]; the
Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA")
[33 USC Section 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [I5 USC
Section 2601 et seq.]; the Hazardous Materials Transportation Act ("HMTA") [49 USC
Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901
et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act
[42 USC Section 300fet seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et
seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.]
the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et .
seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the
California Underground Storage of Hazardous Substances Act [H & S C Section 25280
et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et
seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section
25249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code Section 13000 et
seq.] together with any amendments of or regulations promulgated under the statutes
cited above and any other federal, state, or local law, statute, ordinance, or regulation
now in effect or later enacted that pertains to occupational health or industrial hygiene,
and only to the extent the occupational health or industrial hygiene laws, ordinances, or
regulations relate to hazardous substances on, under, or about the Property, or the
regulation or protection of the environment, including anlbient air, soil, soil vapor,
groundwater, surface water, or land use.
'-
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(ii)
"hazardous substances" includes without limitation:
'-'
those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material," "toxic substance," "solid waste," or
"pollutant or contaminate" in CERCLA, RCRA, TSCA, HMT A, or under any other
environmental law; and
those substances listed in the United States Department of Transportation (DOT)
Table [49 CFR 172.101], or by the EPA, or any successor agency, as hazardous
substances [40 CFR Part 302]; and
other substances, materials, and wastes that are or become regulated or classified
as hazardous or toxic under federal, state, or local laws or regulations; and any material,
waste, or substance that is:
(I) a petroleum or refined petroleum product,
(2) . asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant to 33 USC Section 1321 or
listed pursuant to 33 USC Section 1317,
-
(5)
(6)
a flammable explosive, or
a radioactive material.
Section 2.09. Due Diligence Investigation of the Propertv Bv the Developer.
(a) Within one hundred twenty (120) calendar days from and after the Opening of
Escrow, and subject to the extensions of time set forth below in Section 2.15, the Developer shall have
the right to examine, inspect and investigate the Property (the "Due Diligence Period") to determine
whether the condition of the Property is acceptable to the Developer and to obtain such development
project approvals from the City for the improvement of the Project Site as the Developer may require
in its sole and absolute discretion.
(b) During the Due Diligence Period, the Agency shall permit the Developer, its
engineers, analysts, contractors and agents to conduct such physical inspections and testing of the
Property as the Buyer deems prudent with respect to the physical condition of the Property, including
the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic and
other geological and topographical matters, and surveys regarding the potential presence of any
hazardous substances, if any.
;t'.--
(c) Any such investigation work on the Property may be conducted by the
Developer and/or its agents during any normal business hours upon seventy-two (72) hours prior
written notice to the Agency, which notice will include a description of any investigation work or tests
to be conducted by the Developer on the Property. Upon the Agency's request, the Developer will
provide the Agency with copies of any test results.
'-'
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_ (d) During the Due Diligence Period, the Developer shall also have the right to
'-' investigate all matters relating to the zoning, use and compliance with other applicable laws, which
relate to the use, development, and improvement of the Property, The Developer may submit an
application to the City and any other regulatory agency with jurisdiction for any and all necessary
development project approvals for the improvement of the Project Site. The Agency hereby consents
to the submission of such development project approval applications by the Developer.
(e) The Agency shall cooperate fully to assist the Developer in completing such
inspections and investigations of the condition of the Property. The Agency shall have the right, but
not the obligation, to accompany the Developer during such investigations and/or inspections. The
Developer shall pay for all costs and expenses associated with the conduct of all such Due Diligence
investigation including the cost of submitting any development project approval application as relates
to the Project to any regulatory jurisdiction.
Section 2.10. Due Diligence Approval Certificate. Within one hundred twenty (120)
calendar days following the Opening of Escrow, the Developer shall complete its investigation of the
Property (subject to the extensions of time set forth in Section 2.15) and deliver a due diligence
approval certificate signed by the Developer (the "Due Diligence Approval Certificate") to the Escrow
Holder which either:
(i) indicates that the Developer accepts the condition of the Property; or
(ii)
contains a description of the matters or exceptions relating to the condition of
the Property, which the Developer was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
'-
Section 2.11. Books and Records. As part of the Developer's investigations during
the Due Diligence Period, the Developer shall be afforded full opportunity by the Agency to examine
all books and records, which relate to the Property and are in the possession of the Agency and/or the
Agency's agents or employees, including the reasonable right to make copies of such books and
records. During the Due Diligence Period, the Agency will make sufficient staff available to assist the
Developer with obtaining access to information relating to the Property, which is in the possession or
control of the Agency.
/,.:r~
Section 2.12. Condition of the Property-Developer's Release. The Developer
acknowledges and agrees that it shall be given a full opportunity under this Agreement to inspect and
investigate every aspect of the Property during the Due Diligence Period. The Developer shall accept
the delivery. of possession to the Property on the Close of Escrow in an "AS IS," "WHERE IS" and
"SUBJECT TO ALL F AUL TS" condition. The Developer further agrees and represents to the Agency
that by a date no later than the end of the Due Diligence Period, the Developer shall have conducted
and completed (or waived the completion) of all of its independent investigation of the condition of the
Property which the Developer may believe to be indicated. The Developer hereby acknowledges that
it shall rely solely upon its own investigation of the Property and its own review of such information
and documentation, as it deems appropriate for the purpose of accepting the condition and possession
of the Property. The Developer is not relying on any statement or representation by the Agency
relating to the condition of the Property unless such statement or representation is specifically
contained in this Agreement. Without limiting the foregoing, and except as expressly set forth in
Section 2.24(a)(lI), the Agency makes no representations or warranties as to whether the Property
'-'
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presently complies with environmental laws or whether the Property contains any hazardous substance;
as these terms are defined in Section 2.08(b) hereof. Furthermore, to the extent that the Agency has
provided the Developer with information relating to the condition of the Property, including
information and reports prepared by or on behalf of the City of San Bernardino, the Agency makes no
representation or warranty with respect to the accuracy, completeness or methodology or content of
such reports or information.
~
Without limiting the above, except to the extent covered by an express representation or
warranty of the Agency set forth in this Agreement, the Developer, on behalf of itself and its
successors and assigns, waives and releases the Agency and its successors and assigns from any and all
costs or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether direct
or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the physical
condition of the Property, the condition of the soils, the suitability of the soils for the improvement of
the Property as proposed, or any law or regulation applicable thereto, including the presence or alleged .
presence of harmful or hazardous substances in, under or about the Property including, without
limitation, any claims under or on account of (i) CERCLA and similar statutes and any regulations
promulgated thereunder or (ii) any other environmental laws.
The Developer expressly waives any rights or benefits available to it with respect to the
foregoing release under any provision of applicable law which generally provides that a general release
does not extend to claims which the creditor does not know of suspect to exist in his or her favor at the
time the release is agreed to, which, if known to such creditor, would materially affect a settlement.
By execution of this Agreement, the Developer acknowledges that it fully understands the foregoing,
and with this understanding, nonetheless elects to and does assume all risk for claims known or
"- unknown, described in this Section 2.12 without limiting the generality of the foregoing:
The undersigned acknowledges that it has been advised by legal counsel and is familiar
with the provisions of California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM, MUST HAVE MA TERIALL Y AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
The undersigned, being aware of this Code Section, hereby expressly waives any rights
it may have thereunder, as well as under any other statutes or common law principles of similar effect.
Initials of Developer:
Initials of Agency:
(with respect to the Exchange Tract)
The provisions of this Section 2.12 shall survive the Close of Escrow.
.........
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Section 2.13. Review and Aooroval of Condition of Title by the Develooer.
(a) Within fifteen (15) calendar days following the Opening of Escrow, the Agency
shall cause to be delivered to the Developer a preliminary title report or title commitment for a CL T A
standard coverage policy of title insurance issued by the Title Company, describing the state of title of
the Property, together with copies of all exceptions specified therein and with all easements plotted,
but excluding matters disclosed on a survey (the "Preliminary Title Report"). The Developer shall
notify the Agency in writing of any objections the Developer may have to the title exceptions
contained in the Preliminary Title Report ("Developer's Title Objection Notice") prior to the
expiration of the Due Diligence Period. The Agency shall have a period of five (5) business days after
receipt of the Developer's Title Objection Notice in which to deliver written notice to the Deyeloper
("Agency's Title Notice") of the Agency's election to either (i) agree to remove the objectionable
items prior to the Close of Escrow, or (ii) decline to remove any such title exceptions; provided,
however, that the Agency shall be required to remove all monetary liens and encumbrances created by
or as. a result of the Agency's activities. If the Agency notifies the Developer of its election to
terminate Escrow rather than remove the objectionable items, the Developer shaH have the right, by
written notice delivered to the Agency within five (5) business days after the Developer's receipt of the
Agency's Title Notice, to agree to accept the Property subject to the objectionable items, in which
event the Agency's election to terminate the Escrow shall be of no effect, and the Developer shaH take
title at the Close of Escrow subject to such objectionable title items.
(b) The Agency covenants not to further encumber and not to place any further liens
or encumbrances on the Property, including, but not limited to, covenants, conditions, restrictions,
easements, liens, options to purchase, options to lease, leases, tenancies, or other possessory interests
without the prior written consent of the Developer which consent may be withheld by the Developer at
the sole discretion of the Developer. Upon the issuance of any amendment or supplement to the
Preliminary Title Report which adds additional exceptions (including, but not limited to, adding
additional exceptions for matters shown on the Survey as hereinafter defined), the foregoing right of
review and approval shall also apply to said amendment or supplement (provided that the period for
the Developer to review such amendment or supplement shaH be the later of the expiration of the Due
Diligence Period or ten (10) calendar days from receipt of the amendment or supplement) and Escrow
shaH be deemed extended by the amount of time necessary to allow such review and approval in the
time and manner set forth above.
Section 2.14. Survey. The Developer may at its sole cost and separate expense
obtain a survey of the Property prepared by a land surveyor duly licensed by the State of California and
in compliance with ALTAlASCM standards ("Survey''). The Survey shall be in a form acceptable to
the Title Company for the deletion of the standard survey exception in the Title Policy relating to
boundaries, without the addition of further exceptions unless the same are acceptable to the Developer
in its sole and absolute discretion. The Developer shall have ilntil the end of the Due Diligence Period
to complete and examine the Survey and to notify Agency in writing of any objections the Developer
has to the Survey ("Developer's Survey Objection Notice"). The Agency shall have a period of five
(5) business days after receipt of the Developer's Survey Objection Notice in which to deliver written
notice to the Developer ("Agency's Survey Notice") of the Agency's election to either (i) agree to
remove the objectionable items prior to the Close of Escrow or (ii) decline to remove such items. If
the Agency notifies the Developer of its intention to not remove the objectionable items, the Developer
shaH have the right, by written notice delivered to the Agency within five (5) business days after the
Developer's receipt of Agency's Survey Notice, to agree to accept the Property subject to the
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objectionable items, in which event, the Agency's election to terminate the Escrow shall be of no
effect, and the Developer shall accept the Property at the Close of Escrow subject to such objectionable
items. Prior to the Closing, the Survey shall be recertified to the Developer and the Title Company.
The Survey will be performed at the Developer's sole cost and expense.
Section 2.15. Extension of Due Diligence Period.
(a) In the event Agency fails to provide to the Developer the documents and other
information required by Sections 2.08 and 2.13 by the date or the dates set forth therein, the Due
Diligence Period for such information shall be extended by one (I) calendar day for each day of the
delay by the Agency to permit the Developer to perform an adequate due diligence review (but not to
exceed a total of one hundred twenty (120) calendar days). The Developer will use its best efforts to
notify Agency of any documents the Agency has failed to deliver to the Developer within the time
periods provided in Sections 2.08 and 2.13.
(b) In the event that the Executive Director makes a finding that the Developer has
undertaken substantial work to complete the due diligence investigation with respect to the Property,
the Executive Director shall, upon the written request of the Developer, authorize an extension of the
Due Diligence Period for up to an additional sixty (60) calendar days.
Section 2.16. Developer's Conditions Precedent to Close Escrow. The Developer's
obligation to complete the purchase of the Property and Close the Escrow shall be conditioned upon
the fulfillment of the following conditions precedent, all of which shall be satisfied (or waived in
writing pursuant to Section 2.19) prior to the Close of Escrow:
........
(I)
The Agency shall not have defaulted on any material term of this Agreement to
be performed by the Agency hereunder, and each representation and warranty
made by the Agency in this Agreement shall remain true and correct. For
purposes of this subsection (I) only, a representation that is limited to the
Agency's knowledge or notice shall be false if the factual matter that is subject
to the representation is false, notwithstanding any lack of knowledge or notice to
the Agency;
(2) the Developer's approval of the Preliminary Title Report and the Survey, if
applicable, within the time periods specified in Sections 2.13 and 2.14;
(3) the Developer's approval of the contents of all Due Diligence Items, and the
other investigations of the Property made by the Developer and/or its designees
pursuant to Sections 2.08 and 2.09 herein on or before the expiration of the Due
Diligence Period, or such later date if the Due Diligence Period is extended
pursuant to Section 2.15. The Developer shall be deemed to have disapproved
such Due Diligence Items unless they are approved on or before 5:00 p.m. on
the day of the Due Diligence Period, or such later date if the Due Diligence
Period is extended pursuant to Section 2.15 herein;
(4)
the Developer has submitted to the Agency a written certification duly executed
by an authorized officer of the Developer stating that the Developer has either
(i) obtained independent sources of third-party financing or (ii) intends to apply
equity funds of the Developer for the commencement of the development of the
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Project promptly after the Close of Escrow (subject to obtaining applicable City
approvals), and that such financing or other equity funds will be in a principal
amount and upon such terms and conditions sufficient to complete the
construction of the Project as described in this Agreement;
-
(5)
the Developer's approval of any notice of change in representation or warranty
given by the Agency pursuant to Section 2.24(a) hereof; and
(6)
the Title Company has committed to issue the policy of title insurance, in favor
of the Developer in the form described in Section 2.05. .
Section 2.17. The Agencv's Conditions Precedent to Close Escrow. The Agency's
obligation to convey the Property to the Developer shall be conditioned upon the fulfillment of the
following conditions precedent, all of which shall be satisfied (or waived in writing pursuant to Section
2.19) prior to the Close of Escrow:
(I) the Developer has accepted the condition of the Property and submitted its Due
Diligence Approval Certification to the Escrow Holder on or before the date set
forth in this Agreement;
(2) the Developer has accepted the condition of title of the Property on or before the
date set forth in Section 2.13;
(3)
the Developer shall not be in default of any material term of this Agreement to
be performed by the Developer hereunder and each representation and warranty
of the Developer made in this Agreement shall remain true and correct;
--..
(4) the Developer shall be satisfied (or waive satisfaction) of each of the conditions
precedent set forth in Section 2.16 and the Escrow is in a condition to close
within one hundred and eighty (180) calendar days following the Opening of
Escrow (subject to Section 2.15, if applicable); and
(5) the Developer shall have executed the documents and made the deposit of funds
as required by Section 2.02(b) hereof in such form as to allow for the
recordation of the Deed of Trust.
Section 2.18. Distribution of Documents and Purchase Price after Closing Date by
Escrow Holder. The Escrow Holder shall deliver to the Developer within the three (3) business days
following the Closing Date a conformed copy of the Agency Grant Deed, as recorded and the policy of
title insurance issued by the Title Company in favor of the Developer. The Escrow Holder shall
deliver to the Agency within the same period a conformed copy of the Developer Grant Deed.
.
Section 2.19. Satisfaction of Conditions. Where satisfaction of any of the foregoing
conditions requires action by the Developer or by the Agency, each party shall use its diligent efforts,
in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the foregoing
.,.-, conditions requires the approval of a party, such approval shall be in such party's sole and absolute
'- discretion.
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Either party may waive any of the conditions set forth in this Agreement, but any such
waiver shall be effective only if contained in a writing signed by the applicable party and delivered to
the Escrow Holder.
'-"
Section 2.20. [RESERVED -- NO TEXT]
Section 2.2 I. Prorations, Closing Costs, Possession.
(a) Real property taxes for the Property and the Exchange Tract shall be prorated by
the parties to the Closing Date on the basis of a three hundred sixty-five (365) day year on the basis
that the Agency is responsible for (i) all such taxes (if any) for the fiscal year of the applicable taxing
authority occurring prior to the Current Tax Period (as defined below) and (ii) that portion of such
taxes for the Current Tax Period to I I :59 p.m. on the Closing Date, whether or not the same shall be
payable prior to the Closing Date. The phrase "Current Tax Period" refers to the fiscal year of the
applicable taxing authority in which the Closing occurs. All tax prorations shall be based upon the
latest available tax statement. If the tax statements for the fiscal tax year during which Escrow closes
do not become available until after the Closing Date, then the rates and assessed values of the previous
year, with known changes, shall be used, and the parties shall re-prorate said taxes outside of Escrow
following the Closing Date when such tax statements become available. The Agency shall be
responsible for and shall payor reimburse the Developer upon demand for any real property taxes on
the Property payable following the Closing Date applicable to any period of time prior to the Closing
Date as a result of any change in the tax assessment by reason of reassessment, changes in use of the
Property, changes in ownership, errors by the Assessor or otherwise. The Developer shall be
responsible for and shall payor reimburse the Agency upon demand for any real property taxes on the
.......... Exchange Tract payable following the Closing Date applicable to any period of time prior to the
Closing Date as a result of any change in the tax assessment by reason of reassessment, changes in use
of the Exchange Tract, changes in ownership, errors by the Assessor or otherwise.
(b) The Developer shall be entitled to exclusive possession of the Property
immediately upon the Close of Escrow. The Agency shall be entitled to exclusive possession of the
Exchange Tract immediately upon the Close of Escrow, subject to the Use Provisions.
(c) The Agency shall pay the cost of the premium for a CL TA owner's standard
coverage policy of title insurance on the Property in the amount of the Purchase Price, together with all
title charges (including endorsements reasonably requested by the Developer to remove disapproved
items shown on the Preliminary Title Report or Survey pursuant to Sections 2.13 and 2.14 above). The
Agency shall pay one-half (Yz) of the customary and reasonable escrow fees, which may be charged by
the Escrow Holder in connection with the close of Escrow. The Developer shall pay the cost of the
premium for a CLTA owner's standard coverage policy of title insurance on the Exchange Tract in the
amount of the Exchange Tract FMV, together with all title charges (including endorsements reasonably
requested by the Agency to remove disapproved items shown on the preliminary title report or survey
applicable to the Exchange Tract pursuant to Sections 2.02(b)(iii) and (iv), 2.13 and 2.14 above).
~'-""
(
The Developer shall pay the additional cost of the Survey and requested CL T A survey
policy endorsements (to the extent such endorsements are unrelated to removal of any disapproved
items shown on the Preliminary Title Report or Survey pursuant to Sections 2. I3 and 2.14 above) the
additional premium for an ALTA extended coverage policy (if elected by the Developer) which
exceeds the premium for a CL T A owner's standard coverage policy of title insurance on the Property,
plus the cost of recording the Agency Grant Deed. The Agency shall be responsible for any such
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additional costs related to the title policy or survey for the Exchange Tract The Developer shall pay
any documentary or other transfer taxes payable on account of the conveyance of the Property to the
Developer. The Agency shall pay any documentary or other transfer taxes due on account of the
conveyance of the Exchange Tract to the Agency.
Any other Escrow-related transaction expenses or escrow closing costs incurred by the
Escrow Holder in connection with this transaction shall be apportioned and paid for by the parties to
this Agreement in the manner customary in San Bernardino County, California.
No later than three (3) business days prior to the Closing Date, the Escrow Holder shall
prepare for approval by the Developer and the Agency a closing statement ("Closing Statement") on
the Escrow Holder's standard form indicating, among other things, the Escrow Holder's estimate of all
closing costs, pay-off amounts for the release and reconveyance of all liens secured by the Property
and prorations made pursuant to this Agreement The Developer and the Agency shall assist the
Escrow Holder in determining the amount of all prorations.
Section 2.22. Breach of Article II by the Agency: Soecific Performance Remedy of
Develooer. In the event that the Agency commits a material breach of its obligations under this Article
II prior to the Close of Escrow and fails to transfer the Property to the Developer as agreed herein, the
Developer shall have the right to file an appropriate court action in the Superior Court, County of San
Bernardino, State of California for specific performance to require the Agency to transfer the Property
as agreed herein. The Developer shall not seek any other damages or remedies against the Agency for
any such failure to transfer the Property.
Section 2.23. Breach by the Develooer of Article II: Liquidated Damages Payable by
the Develooer to the Agency. IN THE EVENT THAT THE DEVELOPER COMMITS A
MATERIAL BREACH OF ITS OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE
CLOSE OF ESCROW, THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON
THEREOF ARE AND WILL BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO
ASCERTAIN WHAT THE AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A
DEFAULT BY THE DEVELOPER, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN
AN AMOUNT EQUAL TO THE SUM OF $10,000 AS LIQUIDATED DAMAGES. SUCH SUM
SHALL BE PAID TO THE AGENCY IN THE EVENT OF SUCH DEFAULT BY THE
DEVELOPER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE
AGENCY'S SOLE AND EXCLUSIVE REMEDY A T LAW OR IN EQUITY IN THE EVENT
OF AND FOR SUCH DEFAULT BY THE DEVELOPER. WITHOUT LIMITING THE
FOREGOING PROVISIONS OF THIS PARAGRAPH, THE AGENCY WAIVES ANY AND
ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD HAVE HAD UNDER CIVIL
CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. THE AGENCY
AND THE DEVELOPER ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS
READ AND UNDERSTANDS THE PROVISIONS OF THIS SECTION AND EACH AGREES
TO BE BOUND BY ITS TERMS.
Initials of Developer
Initials of Agency
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Section 2.24. Reoresentations and Warranties.
'-
(a) Warranties and Reoresentations bv the Agencv. The Agency hereby makes the
following representations, covenants and warranties and acknowledges that the execution of this
Agreement by the Developer has been made and the acquisition by the Developer of the Property will
have been made in material reliance by the Developer on such covenants, representations and
warranties:
(I) Warranties True. Each and every undertaking and obligation of the Agency
under this Agreement shall be performed by the Agency timely when due; and
that all representations and warranties of the Agency under this Agreement and
its exhibits shall be true in all material respects at the Closing as though they
were made at the time of Closing.
(2) Due Organization. The Agency is a community redevelopment agency, duly
formed and operating under the laws of California. The Agency has the legal
power, right and authority to enter into this Agreement and to execute the
instruments and documents referenced herein, and to consummate the
transactions contemplated hereby.
'-
(3) Requisite Action. The Agency has taken all requisite action and obtained all
requisite consents in connection with entering into this Agreement and the
instruments and documents referenced herein and the consummation of the
transactions contemplated hereby, and no consent of any other party is required.
(4) Enforceabilitv of Agreement. The persons executing any instruments for or on
behalf of the Agency have been authorized to act on behalf of the Agency and
that this Agreement is valid and enforceable against the Agency in accordance
with its terms and each instrument to be executed by the Agency pursuant hereto
or in connection therewith will, when executed, be valid and enforceable against
the Agency in accordance with its terms. No approval, consent, order or
authorization of, or designation or declaration of any other person, is required in
connection with the valid execution and delivery of and compliance with this
Agreement by the Agency.
(5)
Title. Prior to the Closing, the Agency will be the owner of (and the Developer
will acquire hereunder) the entire right, title and interest in the Property to
effectively vest in the Developer good and marketable fee simple title to the
Property, that the Developer will acquire the Property free and clear of all liens,
encumbrances, claims, rights, demands, easements, leases or other possessory
interests, agreements, covenants, conditions, and restrictions of any kind or
character (including, without limiting the generality of the foregoing, liens or
claims for taxes, mortgages, conditional sales contracts, or other title retention
agreement, deeds of trust, security agreements and pledges and mechanics liens)
except: (i) the matters described in Section 2.05, and (ii) the exceptions to title
approved by the Developer pursuant to Section 2.13.
.c"'-'
'"-,
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(6)
No Litigation. There are no pending or, to the best of the Agency's knowledge,
threatened claims, actions, allegations or lawsuits of any kind, whether for
personal injury, property damage, property taxes or otherwise, that could
materially and adversely affect the value or use of the Property or prohibit the
sale thereof, nor to the best of the Agency's knowledge, is there any
governmental investigation of any type or nature pending or threatened against
or relating to the Property or the transactions contemplated hereby.
~
(7) Operation and Condition Pending Closing. Between the date of this Agreement
and the Close of Escrow, the Agency will continue to manage, operate and
maintain the Property in the same manner as existed prior to the execution of
this Agreement.
(8) Contracts. There are no contracts or agreements to which the Agency is a party
relating to the operation, maintenance, development, improvement or ownership
of the Property, which will survive the Close of Escrow except as may be set
forth in the Agency Grant Deed.
(9) Development of Project. Although the Agency makes no representation or
warranty that the Property is suitable for the development or operation of the
Project, the Agency has no present knowledge of any condition of the Property
which would prevent its development in accordance with the Scope of
Development.
"-
(10) Special Studies Zone. The Property has been identified in the Initial Study (the
"IS") and the applicable Environmental Impact Report ("EIR") as undertaken by
the Agency in accordance with CEQA for the approval of this Agreement to be
in the immediate vicinity of the presumed location of the Glen Helen Fault and
within approximately one-half mile of the San Jacinto Fault. However, except
as identified in the IS or the EIR, the Property is not located within a designated
earthquake fault zone pursuant to California Public Resources Code Section
2621.9 and is not located in a designated area that is particularly susceptible to
ground shaking, liquefaction, landslides or other ground failure during an
earthquake pursuant to California Public Resources Code Section 2694;
provided, however, the Property is in fact located within a City defined
liquefaction zone together with most other properties as generally located in
other areas of the City. The IS and the EIR as identified above impose certain
mitigation requirements upon any development of the Property which shall
further be the obligation of the Developer to undertake as set forth in Section
3.01(aa).
(II) The Agencv's Knowledge. . For purposes of this Section 2.24, the terms "to the
best of the Agency's knowledge" or "to the Agency's knowledge" shall mean
the actual knowledge of Executive Director of the Agency.
.<,"'~'. .
If the Agency becomes aware of any act or circumstance which would change or render
incorrect, in whole or in part, any representation or warranty made by the Agency under this
Agreement, whether as of the date given or any time thereafter through the Closing Date and whether
'-
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or not such representation or warranty was based upon the Agency's knowledge and/or belief as of a
certain date, the Agency will give immediate written notice of such changed fact or circumstance to the
Developer, but such notice shall not release the Agency of its liabilities or obligations with respect
thereto.
'-
All representations and warranties contained in this Section 2.24(a) are true and correct
on the date hereof and on the Closing Date and the Agency's liability for misrepresentation or breach
of warranty, representation or covenant, wherever contained in this Agreement, shall survive the
execution and delivery of this Agreement and the Close of Escrow.
(b) Warranties and Reoresentations bv the Develooer. The Developer hereby makes
the following representations, covenants and warranties and acknowledges that the execution of this
Agreement by the Agency has been made in material reliance by the Agency on such covenants,
representations and warranties:
(I) Each entity comprising the Developer is a duly organized and validly existing
California limited partnership. The Developer has the legal right, power and
authority to enter into this Agreement and the instruments and documents
referenced herein and to consummate the transactions contemplated hereby.
The persons executing this Agreement and the instruments referenced herein on
behalf of the Developer hereby represent and warrant that such persons have the
power, right and authority to bind the Developer.
(2)
The Developer has taken all requisite action and obtained all requisite consents
in connection with entering into this Agreement and the instruments and
documents referenced herein and the consummation of the transactions
contemplated hereby, and no consent of any other party is required.
""-
(3) This Agreement is, and all agreements, instruments and documents to be
executed by the Developer pursuant to this Agreement shall be, duly executed
by and are or shall be valid and legally binding upon the Developer and
enforceable in accordance with their respective terms.
(4) Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby shall result in a breach of or constitute a
default under any other agreement, document, instrument or other obligation to
which the Developer is a party or by which the Developer may be bound, or
under law, statute, ordinance, rule, governmental regulation or any writ,
injunction, order or decree of any court or governmental body applicable to the
Developer or to the Property.
"-
(5) Title. Prior to the Closing, the Developer will be the owner of (and the Agency
will acquire hereunder) the entire right, title and interest in the Exchange Tract
to effectively vest in the Agency good and marketable fee simple title to the
Exchange Tract, that the Agency will acquire the Exchange Tract free and clear
of all liens, encumbrances, claims, rights, demands, easements, leases or other.
possessory interests, agreements, covenants, conditions, and restrictions of any
kind or character (including, without limiting the generality of the foregoing,
liens or claims for taxes, mortgages, conditional sales contracts, or other title
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(6)
(7)
(8)
retention agreement, deeds of trust, security agreements and pledges and
mechanics liens) except: (i) the matters described in Section 2.05; and (ii) the
exceptions to title approved by the Agency pursuant to Section 2.13.
No Litigation. There are no pending or, to the best of the Developer's
knowledge, threatened claims, actions, allegations or lawsuits of any kind,
whether for personal injury, property damage, property taxes or otherwise, that
could materially and adversely affect the value or use of the Exchange Tract or
prohibit the sale thereof, nor to the best of the Developer's knowledge, is there
any governmental investigation of any type or nature pending or threatened
against or relating to the Exchange Tract or the transactions contemplated
hereby.
Operation and Condition Pending Closing. Between the date of this Agreement
and the Close of Escrow, the Developer will continue to manage, operate and
maintain the Exchange Tract in the same manner as existed prior to the
execution of this Agreement.
Contracts. There are no contracts or agreements to which the Developer is a
party relating to the operation, maintenance, development, improvement or
ownership of the Exchange Tract, which will survive the Close of Escrow
except as may be set forth in the Developer Grant Deed.
All representations and warranties contained in this Section 2.24(b) are true and correct
\""..- on the date hereof and on the Closing Date and the Developer's liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive
the execution and delivery of this Agreement and the Closing.
Section 2.25. Damage. Destruction and Condemnation. Prior to the Agency's delivery
of possession of the Property to the Developer at the Close of Escrow, the risk ofloss or damage to the
Property shall remain upon the Agency. If the Property suffers damages as a result of any casualty
prior to the Close of Escrow, which may materially diminish its value, then the Agency shall give
written notice thereof to the Developer promptly after the occurrence of the casualty. The Developer
can elect to either: (i) accept the Property in its damaged condition or (ii) the Developer may terminate
this Agreement and recover the Deposit as set forth in Section 2.02. The Developer shall confirm the
exercise of its election under subparagraph (i) or (ii) of the preceding sentence within thirty (30)
calendar days after its receipt of notice from the Agency.
In the event that, prior to the Close of Escrow, any governmental entity shall commence
any actions of eminent domain or similar type proceedings to take any portion of the Property, the
Agency shall give prompt written notice thereof to the Developer, and the Developer shall have the
option either: (i) to elect not to acquire the Property, terminate this Agreement and recover the Deposit
as set forth in Section 2.02; or (ii) the Developer may complete the acquisition of the Property under
this Agreement, in which case the Developer shall be entitled to all the proceeds of such taking;
provided, however, that the Agency agrees that it shall not settle or compromise the proceedings before
the Close of Escrow without the Developer's prior written consent, which consent will not be
umeasonably withheld or delayed. The Developer shall confirm the exercise of its election under
subparagraph (i) or (ii) of the preceding sentence within thirty (30) calendar days after its receipt of
notice from the Agency.
.,,-
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The same rights as provided above for the benefit of the Developer shall apply to the Agency
with respect to the Exchange Tract.
"-
ARTICLE III
DEVELOPMENT OF THE PROJECT
Section 3.01. Develooment of the Proiect by Develooer.
(a) Scooe of Develooment. It is the intent of the parties that promptly following the
Close of the Escrow the Developer shall commence developing the Project, subject to obtaining
applicable City approvals, consisting of the general elements described in Exhibit "F" (Scope of
Development), and use commercially reasonable efforts to complete the Project as diligently and as
reasonably possible thereafter.
(b) The City's zoning ordinance and the City's building requirements will be
applicable to the use and development of the Project. The Developer acknowledges that any change in
the plans for development for the Project as set forth in the Scope of Development shall be subject to
the City's zoning ordinance and building requirements. No action by the Agency or the City with
reference to this Agreement or related documents shall be deemed to constitute a waiver of any City
requirements which are applicable to the Project or to the Developer, any successor in interest of the
Developer or any successor in interest pertaining to the Project, except by modification or variance
approved by the City consistent with this Agreement.
-
(c) The Scope of Development set forth in Exhibit "F" is hereby approved by the
Agency upon its execution of this Agreement. The Project shall be developed and completed
substantially in conformance with the approved Scope of Development and any and all other plans,
specifications and similar development documents required by this Agreement, except for such
changes as may be mutually agreed upon in writing by and between the Developer and the Agency.
The Agency agrees to approve preliminary and construction plans and preliminary and landscaping
plans, if reasonably consistent with the approved Scope of Development.
,
\-
(d) The approval of the Scope of Development by the Agency hereunder shall not
be binding upon the City Councilor the Planning Commission of the City with respect to any
approvals of the Project required by such other bodies. If any revisions of the Scope of Development
as approved by the Agency shall be required by another government official, agency, department or
bureau having jurisdiction over the development of the Project, the Developer and the Agency shall
cooperate in efforts to obtain waivers of such revisions, or to obtain approvals of any such revisions
which have been made by the Developer and have thereafter been approved by the Agency. The
Agency shall not umeasonably withhold or delay approval of such revisions.
(e) Notwithstanding any provision to the contrary in this Agreement, the Developer
agrees to accept and comply fully with any and all reasonable conditions of approval applicable to all
permits and other governmental actions affecting the development of the Project and consistent with
this Agreement.
(f) The Developer shall cause landscaping plans in connection with development of
the Project to be prepared by a licensed landscape architect. The Developer shall prepare and submit
to the City for its approval, preliminary and final landscaping plans for the Project, which are
consistent with City Building Code requirements. These plans for both phases of the Project shall be
prepared, submitted and approved diligently to accomplish the Developer's commitment in Section
3.01(a) above.
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_ (g) The Developer shall prepare and submit development plans, construction
Iio."... drawings and related documents for the development of the Project consistent with the Scope of
Development to the City. The development plans, construction drawings and related documents shall
be in the form of drawings, plans and specifications. Drawings, plans and specifications are hereby
defined as those, which contain sufficient detail necessary to obtain a building permit from the City.
(h) During the preparation of all drawings and plans in connection with the
development of the Project, the Developer shall provide to the Agency regular progress reports to
advise the Agency of the status of the preparation by the Developer, and the submission of
construction plans and related documents for review by the City. The Developer shall communicate
and consult with the Agency as frequently as is necessary to ensure that any such plans and related
documents submitted by the Developer to the City are being processed in a timely fashion.
(i) The Agency shall have the right of reasonable architectural review and approval
of building exteriors and design of the structures to be constructed on the Full Development Site, such
approval not to be umeasonably withheld or delayed. The Agency shall also have the right to review
all plans, drawings and related documents pertinent to the development of the Project in order to
ensure that they are consistent with this Agreement and with the Scope of Development, such approval
not to be umeasonably withheld or delayed.
,-,.
(j) The Developer shall timely submit to the City for its review and approval any
and all plans, drawings and related documents pertinent to the development of the Project as required
by the City. The Agency shall cooperate with and shall assist the Developer in order for the Developer
to obtain the approval of any and all development plans, construction drawings and related documents
submitted by the Developer to the City consistent with this Agreement within thirty (30) calendar days
following the City's receipt of said plans. Any failure by the City to approve any of such plans or to
issue necessary permits for the development of the Project within said thirty (30) calendar day period
shall constitute an enforced delay hereunder, and the Developer's performance commitment under
Section 3.01(a) shall be extended by that period of time beyond said thirty (30) calendar day period in
which the City approves said plans; provided, however, that in the event that the City disapproves of
any of such plans, the Developer shall within thirty (30) calendar days after receipt of such disapproval
revise and resubmit such plans in a manner that addresses the City's requirements and thereafter
negotiate in good faith to obtain the City's approval thereof.
(k) The Agency shall in good faith use its best efforts to cause the City to approve in
a timely fashion, any and all plans, drawings and documents submitted by the Developer, which are
consistent with the Scope of Development.
'-
(I) The Agency shall approve any modified or revised plans, drawings and related
documents for the Project as promptly as reasonably possible as long as such plans, drawings and
related documents are generally consistent with the Scope of Development and any other plans, which
have been approved by the Agency. Upon any disapproval of plans, drawings or related documents,
the Agency shall state in writing the reasons for such disapproval. The Developer, upon receipt of
notice of any disapproval, shall promptly revise such disapproved portions of the plans, drawings or
related documents in a manner that addresses the reasons for disapproval and reasonably meets the
requirements of the Agency in order to obtain the Agency's approval thereof. The Developer shall
resubmit such revised plans, drawings and related documents to the Agency as soon as possible after
its receipt of the notice of disapproval and, in any event, no later than thirty (30) calendar days
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~ thereafter. The Agency shall approve or disapprove such revised plans, drawings and related
........, documents in the same manner and within the same times as provided in this Section for approval or
disapproval of plans, drawings and related documents initially submitted to the Agency.
(m) If the Developer desires to make any change in the construction drawings, plans
and specifications and related documents for the Project after their approval by the Agency and/or the
City, the Developer shall submit the proposed change in writing to the Agency and/or the City for
approval. The Agency shall notify the Developer of approval or disapproval thereof in writing within
thirty (30) calendar days after submission to the Agency. This thirty (30) calendar day period may be
extended by mutual consent of the Developer and the Agency. Any such change shall, in any event, be
deemed to be approved by the Agency unless rejected, in whole or in part, by written notice thereof
submitted by the Agency to the Developer, setting forth in detail the reasons therefor, and such
rejection shall be made within said thirty (30) calendar day period unless extended as permitted herein.
The Agency shall use its best efforts to cause the City to review and approve or disapprove any such
change as provided in Section 3.01(b) hereof.
(n) The Developer, upon receipt of a notice of disapproval by the Agency and/or the
City, may revise such portions of the proposed change in construction drawings, plans and
specifications and related documents as are rejectyd and shall thereafter resubmit such revisions to the
Agency and/or the City for approval in the manner provided in Section 3.01(b) hereof.
r/#'C'
,
'-
(0) The Developer shall have the right during the course of construction of the
Projectto make changes in construction of structures and "minor field changes" without seeking the
approval of the Agency; provided, however, that such changes do not affect the type of use to be
conducted within all or any portion of a structure. Said "minor field changes" shall be defined as those
changes from the approved construction drawings, plans and specifications which have no substantial
effect on the improvements and are made in order to expedite the work of construction in response to
field conditions. Nothing contained in this Section shall be deemed to constitute a waiver of or change
in the City's Building Code requirements governing such "minor field changes" or in any and all
approvals by the City otherwise required for such "minor field changes".
(p) The cost of constructing privately owned components of the Project, in addition
to all off-site public improvements, shall be borne by the Developer which, if any, are required by the
City as a condition of approval for the Project (subject to Section 3.09 below). The Developer shall
comply with all applicable State laws relative to the payment of prevailing wages with respect to those
components of the Project which are public improvements or other public infrastructure intended to be
dedicated to a governmental agency, including the off-site public improvements, and the Developer
shall provide written verification of such compliance to the Agency upon written request from the
Agency to the Developer.
(q) The Developer shall at its expense cause to be prepared, and shall pay any and
all fees pertaining to the review and approval of the development project approvals by the City,
including the cost and preparation of all required construction, planning and other documents
reasonably required by governmental bodies pertinent to the development of the Project hereunder
including, but not limited to, specifications, drawings, plans, maps, permit applications, land use
applications, zoning applications and design review documents.
f""
I",....
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,"-' (r) The Developer shall pay for any and all costs, including but not limited to the
"--' costs of design, construction, relocation, and securing of permits for utility improvements and
connections, which may be required in developing the Project. The Developer shall obtain any and all
necessary approvals prior to the commencement of applicable portions of said construction, and the
Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties
during said construction.
-
"-'
,.>t",
........
(s) The Developer shall commence the work of improvements of the Project within
sixty (60) calendar days following the issuance of building permits for the Phase I of the Project and
thereafter shall diligently prosecute such construction to completion. The Developer shall use
commercially reasonable efforts to substantially complete the improvements of the Project as promptly
as reasonably possible following the commencement of the work of improvements. Any and all
performance commitments hereunder shall be extended for any times attributable to delays, which are
not the fault of the performing party and are caused by the other party, other than periods for review
and approval or reasonable disapprovals of plans, drawings and related documents, specifications or
applications for permits as provided in this Agreement.
(t) During the period of construction of the Project, the Developer shall submit to
the Agency written progress reports when and as reasonably requested by the Agency but in no event
more frequently than every four (4) weeks. The reports shall be in such form and detail as may
reasonably be required by the Agency, and shall include a reasonable number of construction
photographs taken since the last such report submitted by the Developer. In addition, the Developer
will attend Agency meetings when requested to do so by Agency Staff.
(u) Prior to the commencement of any construction on the Project, the Developer
shall furnish, or shall cause to be furnished, to the Agency duplicate originals or appropriate
certificates of public indemnity and liability insurance in the amount of One Million Dollars
($1,000,000.00) combined single limit, naming the Agency and the City as additional insureds. Said
insurance shall cover comprehensive general liability including, but not limited to, contractual liability;
acts of subcontractors; premises-operations; explosion, collapse and underground hazards, 'if
applicable; broad form property damage, and personal injury including libel, slander and false arrest.
In addition, the Developer shall provide to the Agency' adequate proof of comprehensive automobile
liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount
of One Million Dollars ($1,000,000.00) each occurrence; and proof of workers' compensation
insurance. Any and all insurance policies required hereunder shall be obtained from insurance
companies admitted in the State of California and rated at least B+: XII in Best's Insurance Guide. All
said insurance policies shall provide that they may not be canceled unless the Agency and the City
receive written notice of cancellation at least thirty (30) calendar days prior to the effective date of
cancellation. Any and all insurance obtained by the Developer hereunder shall be primary to any and
all insurance which the Agency and/or City may otherwise carry, including self insurance, which for
all purposes of this Agreement shall be separate and apart from the requirements of this Agreement.
Any insurance policies governing the Property as obtained by the Agency shall not be transferred from
the Agency to the Developer. Appropriate insurance means those insurance policies approved by the
Agency Counsel consistent with the foregoing. Any and all insurance required hereunder shall be
maintained and kept in force until the Agency has issued the Certificate of Completion in connection
with the development of the Project.
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,
........
(v) The Developer for itself and its successors and assigns agrees that in the
construction of the Project, the Developer will not discriminate against any employee or applicant for
employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry.
Notwithstanding the foregoing, the Developer will use commercially reasonable efforts to offer
employment opportunities to local residents and will seek to acquire goods and services from local
vendors.
(w) The Developer shall carry out its construction of the Project in conformity with
all applicable laws, including all applicable state labor standards and requirements.
(x) The Developer shall, at its own expense, secure or shall cause to be secured, any
and all permits, which may be required for such construction, development or work by the City or any
other govenunental agency having jurisdiction thereof. The Agency shall cooperate in good faith with
the Developer in the Developer's efforts to obtain from the City or any other appropriate govenunental
agency any and all such permits which are applicable to the development of the Project.
(y) Officers, employees, agents or representatives of the Agency shall have the right
of reasonable access to the Project site, without the payment of charges or fees, during normal
construction hours during the period of construction of the Project for the purpose of verifying
compliance by the Developer within the terms of this Agreement. Such officers, employees, agents or
representatives of the Agency shall be those persons who are so identified by the Executive Director.
Any and all officers, employees, agents or representatives of the Agency who enter the Project site
pursuant hereto shall identify themselves at the job site office upon their entrance onto the Project site
and shall at all times be accompanied by a representative of the Developer while on the Project site;
provided, however, that the Developer shall make a representative of the Developer available for this
purpose at all times during normal construction hours upon reasonable notice from the Agency. The
Agency shall indemnify and hold the Developer harmless from injury, property damage or liability
arising out of the exercise by the Agency of this right of access, other than injury, property damage or
liability relating to the negligence of the Developer or its officers, agents or employees.
(z) The Agency shall inspect relevant portions of the construction site prior to
issuing any written statements reflecting adversely on the Developer's compliance with the terms and
conditions of this Agreement pertaining to development of the Project.
(aa) The Developer shall comply with all obligations imposed under State law in
connection with the development of the Project in accordance with the requirements of any supervisory
agency having jurisdiction over the Project. The Developer acknowledges that it is not the
responsibility of the Agency to monitor or enforce any such requirements and the Developer agrees to
hold harmless from, defend and indemnify the Agency against any liability, cost or claim resulting
from the Developer's breach of the requirements of any such supervisory agency, as such requirements
may be amended or interpreted from time to time as applicable to the Project. Such obligations to be
assumed by the Developer include, but are not limited to, compliance with the mitigation monitoring
plan approved by the Agency as part of the environmental review and approval in connection with the
approval of this Agreement by the governing body of the Agency.
(bb) The Agency acknowledges that the Exchange Tract will be used for the
Exchange Tract Roadway Improvements. The Agency shall offer to dedicate the Exchange Tract to
the City promptly after the Close of Escrow. If the Agency, the City and the'Developer agree that the
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size or configuration of the Exchange Tract should be modified in order to accommodate the
improvements described in said Exhibit "G", the Developer and the Agency shall reasonably cooperate
to accomplish such modification. This provision shall survive the Close of Escrow.
(cc) The Agency shall grant the waterline easement generally described on the
attached Exhibit "J". Such easement shall be in form reasonably acceptable to the Agency, the
Developer and the City Water Department. Such easement shall be granted at such time as needed
during the progress of the Phase I construction. This provision shall survive the Closing. Such
easement shall be granted both on the Property if required to be so granted prior to the Close of Escrow
and on the Agency owned Shandin Hills Golf Course located immediately south of the Property. The
easement shall be granted to such party as may be directed by the City Water Department and shall be
subject to such approval and review rights afforded to the operator and management company (the
"Golf Course Operator") in accordance with that certain Lease and Operating Agreement, as amended,
by and between the Agency and the Golf Course Operator.
Section 3.02. [RESERVED -- NO TEXT].
Section 3.03. Taxes and Assessments. The Developer shall pay prior to the
delinquency all real property taxes and assessments assessed and levied on or against the Property
subsequent to the Close of Escrow. The Developer shall remove, or shall have removed, any levy or
attachment made on the Property, or shall assure the satisfaction thereof. Nothing herein contained
shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax
assessment, encumbrance or lien, or to limit the remedies available to the Developer in respect thereto.
--
Section 3.04. Change in Ownership Management and Control of the Developer --
Assignment and Transfer.
(a) Transfer as used in this Section 3.04, the term "Transfer" means:
(1) Any total or partial sale, assignment or conveyance, or any trust or power, or
any transfer in any other mode or form, by the Developer of more than a forty-
nine percent (49%) interest (or series of such sales, assignments and the like
which in the aggregate exceed a disposition of more than a forty-nine percent
(49%) interest) with respect to its interest in this Agreement, the Property, or the
Project, or any part thereof or any interest therein or of the improvements
constructed thereon, or any contract or agreement to do any of the same; or
(2) Any total or partial sale, assignment, conveyance, or transfer in any other mode
or form, of or with respect to any ownership interest of the Developer (or series
of such sales, assignments and the like which in the aggregate exceeded a
disposition of more than a forty-nine percent (49%) interest); or
(3)
Any merger, consolidation, or sale of all or substantially all of the assets of the
Developer in this Agreement, the Property or the Project (or series of such sales,
assignments and the like which in the aggregate exceeded a disposition of more
than a 49% interest).
}"",,"'~
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_ (b) This Agreement is entered into solely for the purpose of facilitating the
'-- development of the Project. The Developer recognizes that the qualifications and identity of the
Developer are of particular concern to the Agency, in view of:
(1) the importance of the development of the Project to the general welfare of the
community; and
(2) the fact that a Transfer is for all practical purposes a transfer or disposition of
the responsibilities of the Developer, as applicable, with respect to the
redevelopment of the Project.
The Developer further recognizes and acknowledges that it is because of the
qualifications and identity of the Developer that the Agency is entering into this Agreement with the
Developer, and, as a consequence, Transfers are permitted only as provided in this Agreement.
(c) The limitations on a Transfer as set forth in this Section 3.04 shall apply until
such time as the Certificate of Completion for the Project is approved by the Agency and filed for
recordation as provided in Section 3.07. Except as expressly permitted in this Agreement, the
Developer represents and agrees that it has not made nor shall it create or suffer to be made or created,
any Transfer, either voluntarily or by operation of law without the prior written approval of the Agency
until such time as the Certificate of Completion for the Project has been recorded. Any Transfer made
in contravention of this Section 3.04 shall be voidable at the election of the Agency and shall then be
deemed to be a default under this Agreement.
.",~.
'-- (d) The following types of a Transfer shall be permitted and approved by the
Agency and are referred to herein as a "Permitted Transfer": .
(1) Any Transfer by the Developer creating a security interest in all or part of the
Full Development Site for acquisition of the Property or any financing for the
construction and improvement of the all or part of the Full Development Site (a
"Security Financing Interest");
(2) Any Transfer directly resulting from the foreclosure of a Security Financing
Interest created by the Developer in all or part of the Full Development Site or
the granting of a deed in lieu of foreclosure of a Security Financing Interest;
(3) Any Transfer of stock or equity of the Developer, which does not change
management, or operational control of the Property or the Project;
(4)
Any Transfer of any interest in the Developer, irrespective of the percentage of
ownership: (A) to members of the family (i.e. spouse, brother, sister, nephew,
niece, parent, child and/or issue of any of the same) of H. R. Perot, Jr.; or (B) to
a trust for the benefit of any such family member; or (C) to any affiliate of or
other entity controlled by the Developer or its partners or members or any of the
family ofH. R. Perot, Jr.; or (D) to any other entity in which the Developer or its
partners or members or any of the family ofH. R. Perot, Jr. owns a controlling
interest; or (E) any entity in which Developer or any person or entity in (A), (B),
(C) or (D) is a partner or member with LNG, Lion Industrial Trust or any of their
affiliates.
~
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- (e) No Permitted Transfer of this Agreement or any interest in the Property or the
'--' Project, by the Developer (other than a Security Financing Interest) shall be effective unless, at the
time of the Permitted Transfer, the person or entity to which such Transfer is made, shall expressly
assume the obligations of the Developer under this Agreement and such person or entity also agrees to
be subject to the conditions and restrictions to which the Developer is subject under this Agreement.
Such an assumption of obligation shall be evidenced by a written instrument delivered to the Agency
in a recordable form, which is satisfactory to the Agency.
(f) Provided the particular transaction satisfies the applicable provisions of Section
3.04(d), the Developer is not required to give the Agency advance notice of such a Permitted Transfer.
The Agency may, in its reasonable discretion, approve in writing any other Transfer as requested by
the Developer, provided such proposed transferee can demonstrate successful and satisfactory
experience in the ownership, operation, and management of an operation similar to the Project. Any
such transferee for itself and its successors and assigns, and for the benefit of the Agency shall
expressly assume all of the obligations of the Developer to the Agency under this Agreement. There
shall be submitted to the Agency for review all instruments and other legal documents proposed to
effectuate any such other Transfer; and the approval or disapproval of the Agency shall be provided to
the Developer in writing within thirty (30) calendar days after receipt by the Agency of the Owner's
written request, and the Agency approval of a Transfer and shall not be unreasonably withheld or
delayed.
(g) Following the issuance of the Certificate of Completion for the Project, the
Developer shall be released by the Agency from any liability under this Agreement which may arise
from a default of a successor in interest occurring after the date of such a Transfer, except with respect
to covenants contained in the Agency Grant Deed.
......
Section 3.05. [RESERVED NO TEXTl
Section 3.06. Right of the Agency to Satisfy Other Liens on the Property after
Conveyance of Title. After the conveyance of title to the Property by the Agency to the Developer and
prior to the recordation of the Certificate of Completion (referred to in Section 3.07 of this
Agreement), and after the Developer has had a reasonable time to challenge, cure or satisfy any
involuntary liens or encumbrances on the Property, the Agency shall after one hundred twenty (120)
calendar days prior written notice to the Developer have the right to satisfy any such liens or
encumbrances; provided, however, that nothing in this Agreement shall require the Developer to payor
make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in
good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not
subject the Property, or any portion thereof, to forfeiture or sale.
Section 3.07. Certificate of Completion.
(a) Following the written request therefor by the Developer and the completion of
construction of the Project on the Full Development Site (as evidenced by a Certificate of Occupancy
issued by the City), excluding any normal and minor building "punch-list" items to be completed by
the Developer, the Agency shall furnish the Developer with a Certificate of Completion for the Project
substantially in the form set forth in Exhibit "H" attached hereto (the "Certificate of Completion").
.."...-.'
~
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(b) The Agency shall not unreasonably withhold the issuance of a Certificate of
Completion. A Certificate of Completion shall be, and shall so state, that it is a conclusive
detern1ination of satisfactory completion of all of the Developer's obligations under this Agreement.
After the recordation of the Certificate of Completion, any party then owning or thereafter purchasing,
leasing or otherwise acquiring any interest in the Property shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such
party shall be bound by any covenants contained in the grant deed or other instrument of transfer
which grant deed or other instrument of transfer shall include the provisions of Section 4.01 through
4.04, inclusive, of this Agreement.
(c) Any Certificate of Completion shall be in such form as to permit it to be
recorded in the Recorder's Office of the County where the Property is located.
(d) If the Agency refuses or fails to furnish a Certificate of Completion after written
request from the Developer, the Agency shall, within fifteen (15) calendar days after the written
request or within three (3) business days after the next regular meeting of the Agency, whichever date
occurs later, provide to the Developer a written statement setting forth the reasons with respect to the
Agency's refusal or failure to furnish a Certificate of Completion. The statement shall also contain the
Agency's opinion of the action the Developer must take to obtain a Certificate of Completion. If the
reason for such refusal is confined to the immediate unavailability of specific items or materials for
construction or landscaping at a price reasonably acceptable to the Developer or other minor building
"punch-list" items, the Agency may issue its Certificate of Completion upon the posting of a bond or
irrevocable letter of credit, reasonably approved as to form and substance by the Agency Counsel and
obtained by the Developer in an amount representing a fair value of the work not yet completed as
reasonably determined by the Agency. If the Agency shall have failed to provide such written
statement within the foregoing period, the Developer shall be deemed conclusively and without further
action of the Agency to have satisfied the requirements of this Agreement with respect to the Project
on the Full Development Site as if a Certificate of Completion had been issued therefore.
(e) A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements described herein, or any part thereof. A
Certificate of Completion shall not be deemed to constitute a notice of completion as referred to in
Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants or
conditions subsequent contained in the Agency Grant Deed attached hereto as Exhibit "E". The
issuance of a Certificate of Completion by the Agency pursuant to this Section 3.07 shall not in any
marmer terminate any of the other obligations or responsibilities of the Agency which are not
specifically stated to terminate as of the date of issuance of a Certificate of Completion but are
intended to remain in full force and effect pursuant to this Agreement, including, but not limited to,
those as set forth in Section 3.08 below.
Section 3.08. Property Tax Assessed Valuation. The development of the Project
within the State College Redevelopment Project Area by the Developer is of special interest and
concern to the Agency. The development of the Project and the Full Development Site in accordance
with this Agreement shall generate a special source of property tax increment revenues payable to the
Agency in accordance with Health and Safety Code Section 33760 to fund certain redevelopment
activities of the Agency and the affordable housing development programs of the Agency which
benefit persons and families of low and moderate income.
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The Developer hereby covenants and agrees that in the event that the Full Development
Site, or any portion thereof, shall be conveyed or transferred or sold by the Developer, its successors or
assigns, to any entity or party, that is partially or wholly exempt from the payment of ad valorem
property taxes pertinent to the Full Development Site, or any portion thereof (except for a dedication to
the City as referenced in Section 4.02 below), until the maturity of the Promissory Note (hereinafter
defined), the buyer, its heirs or assigns shall agree in writing (in form and substance reasonably
acceptable to the Agency to) pay the Agency a fee in lieu of payment of such taxes each year in an
amount which is determined by the Agency to be one percent (1.0%) of the full cash value of such Full
Development Site, or any portion thereoCconveyed to such buyer (except for a dedication to the City
as referenced in Section 4.02 below) as may be subject to such exemption from payments of ad
valorem property taxes. Such determination of "full cash value" for such in-lieu payment purposes
under this Section 3.08 shall be established by the Agency each year, if necessary, by reference to the
ad valorem property tax valuation principles and practices as generally applicable to a county property
tax assessor under Section 2 of Article XIIIA of the California Constitution together with annual
inflationary factor increases as applied by the Office of the County Assessor in each tax year. In the
event that the Agency may hereafter determine that an amount is payable by an owner of all or any
portion of the Full Development Site to the Agency as an in-lieu payment under this Section 3.08 of
the Agreement in any tax year, then such amount shall be paid to the Agency for that tax year within
ninety (90) calendar days following transmittal of notice of invoice for payment of the in-lieu amount
by the Agency to such owner.
Section 3.09. Interchange Improvements: Pledge of Tax Increment Revenues.
(a) The Developer is required pursuant to the EIR as certified by the Agency at the
time of the approval of this Agreement to mitigate certain traffic impacts that will be incurred upon the
full development of the Full Development Site. The Developer hereby agrees to contribute Three
Million Dollars ($3,000,000) to the Agency within thirty (30) calendar days after written request is
received from the Agency seeking such funds for the purpose of funding a portion of the costs of
improving the interchange of University Parkway and the 1-215 Freeway, including, without limitation,
a flyover on-ramp from the westbound University Parkway to the southbound 1-215 Freeway (the
"Interchange Improvements"). The Agency agrees that it shall provide the notice to the Developer
referred to in the preceding sentence only after the Agency has received written notification from either
the City or the State of California, Department of Transportation ("Caltrans"), to the effect that such
contribution from the Developer is then required for the undertaking of the Interchange Improvements
whether by Caltrans or the City. The Agency recognizes that based upon the Traffic Impact Analysis
("TIA") conducted as a part of the studies included within the EIR, the "fair share" contribution of the
Developer for the Interchange Improvements is equal to One Million Six Hundred Thousand Dollars
($1,600,000) (the "Developer Fair Share Contribution"); however, the City no longer' adheres to the
"fair share" concept and has elected to adopt the DlF (as defined in subsection (b) below) as an
alternative method to determine the traffic related costs to be borne by each development project
within the City. Attached hereto as Exhibit "K" is a letter from the City Engineer confirming the "fair
share" analysis and acknowledging that no additional traffic impact fees will be required for the
development of the Full Development Site except for the construction obligation for certain off-site
street improvements to be located on University Parkway as further specified in said letter.
(b) The payment of the $3,000,000 amount by the Developer as provided in
subsection (a) above shall be full payment of all amounts due to the City in lieu of the City's Traffic
Nexus Fee pursuant to the City Ordinance approving the Development Impact Fees ("DlF") with
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respect to the development of the Full Development Site. The payment of the $3,000,000 amount shall
not relieve the Developer from implementing the standard City required adjacent traffic impacts and
other similar off-site roadway improvements resulting from the development of the Full Development
Site. As further set forth in the letter from the City Engineer attached hereto as Exhibit "K", the
construction or completion of the Interchange Improvements shall not be a condition to the granting of
any City permits or approvals for the development of improvements on the Full Development Site.
(c) Those amounts described on the attached Exhibit "L" (the "Reimbursement
Amount") shall be eligible for reimbursement by the Agency to the Developer from the tax increment
revenues generated from the Full Development Site and the development of the improvements on the
Full Development Site during the term of the Redevelopment Plan plus ten (10) years for which Tax
Increment Revenues (as defined in subsection (d) below) may be received by the Agency within the
State College Redevelopment Project Area and in accordance with the applicable Redevelopment Plan.
The parties recognize that said Redevelopment Plan terminates on April 27, 2011, and the parties
further agree that the last date under this Agreement on which tax increment payments may be remitted
by the Agency to the Developer is April 27, 202\. Any portion of the Reimbursement Amount, and
interest thereon if applicable, shall on or after April 27, 2021, be deemed to be no longer outstanding
and payable by the Agency to the Developer and such remaining principal and interest amounts shall
be forgiven and extinguished for all purposes and the Promissory Note (as hereinafter defined) shall be
considered paid in full as of April 27, 2021, for any amounts remaining unpaid thereunder.
(d) The Agency hereby pledges to the Developer certain tax increment revenues of
the Agency, with such pledge to be effective on and after the date of the Promissory Note, attributable
to the Redevelopment Plan that are legally available to the Agency in each fiscal year during the term
of such pledge equal to approximately forty percent (40%) of the one percent (I %) general property
taxes paid by the Developer for the Full Development Site after the date of the Certificate of
Completion, less any pass-through amounts that are required by law to be remitted to affected taxing
agencies and County collection charges, presently estimated at .5% for cash flow projection purposes
only ("Pass-through Payments"), and subordinate to any existing and future tax allocation bonded
indebtedness payable in whole or in part from the tax increment revenues pursuant to the
Redevelopment Plan and the State College Redevelopment Project Area, and deducting therefrom for
each fiscal year of the calculation the amount of the tax increment revenues that were attributable to
the Full Development Site for the fiscal year in which the Developer acquired the fee title to the Full
Development Site ("Base Year Deductions") (the "Tax Increment Revenues"). The calculation of the
dollar amount of the Tax Increment Revenues to be remitted in each fiscal year to the Developer shall
be on the basis of (A) the one percent (1%) general property taxes, exclusive of any override taxes,
special taxes, ad valorem taxes for general obligation bonded indebtedness or other special
assessments, that are actually paid by the Developer and/or the Developer's successor-in-interest to the
ownership of all or any portion of the Full Development Site attributable to the development to occur
on all or any portion of the Full Development Site, less (B) the Pass-through Payments and the Base
Year Deductions, less (C) the required deposit to the Agency's Low and Moderate Income Housing
Fund which is presently twenty percent (20%) of the gross tax increment revenues, with the remainder
amount then being disbursed on the basis of one-half to the Developer for payments pursuant to the
Promissory Note and the other one-half being retained by the Agency for any of the purposes as may
be permitted pursuant to the Redevelopment Plan. Within thirty (30) calendar days after the Agency
has issued the Certificate of Completion for the Full Development Site pursuant to Section 3.07 hereof,
the Agency shall execute and deliver to the Developer the Agency Tax Increment Revenues
Promissory Note (the "Promissory Note") in the form as attached hereto as Exhibit "I" which provides
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for certain additional late payment fees and other remedies that are available to the Developer in the
event of any default by the Agency to remit the timely payments pursuant to such Promissory Note.
The Promissory Note shall bear interest at the rate per annum of five percent (5%) upon the unpaid
principal and interest balance then due and payable thereunder and shall provide for the payment of the
allocable portion of the Tax Increment Revenues to be remitted by the Agency to the Developer with
respect to the property tax payment remitted by the owner or owners of the Full Development Site to
the County as of the initial December 10 or April 10 next succeeding the date of the Promissory Note.
All payments of the Tax Increment Revenues under the Promissory Note shall first be applied for the
payment of (i) any late charges and interest thereon, (ii) the accrued and unpaid interest upon the
principal balance of the Promissory Note, and (iii) the principal balance of the Promissory Note. The
Promissory Note shall be prepared in final form and executed within thirty (30) calendar days after the
Certificate of Completion has been issued by the Agency in accordance with Section 3.07 of this
Agreement for the Full Development Site. The form of the Promissory Note shall include the exact
dollar amount representing the Reimbursement Amount for those items subject to modification as
provided in the attached Exhibit "L" or items that shall be approved by the City Engineer and accepted
by the City Engineer as public improvements.constructed as part of the Project subject to modifications
as provided in said Exhibit "L". The Developer shall provide the Agency back-up information
including invoices and cancelled checks to demonstrate that the payments for the items listed in
Exhibit "L" have been paid by (or on the behalf of) the Developer and written verification from the
City that each of the items intended to be included within the Reimbursement Amount has been offered
for dedication to the City by the Developer and such items have been duly accepted by the City as
public infrastructure improvements. As of the date of execution of the final form of the Promissory
Note, the Reimbursement Amount and thus the initial principal balance of the Promissory Note shall
be that dollar amount determined in the manner as set forth herein. Interest shall accrue on the
Reimbursement Amount as of the date of the execution and delivery to the Developer of the
Promissory Note. Under no circumstances shall the principal amount of the Promissory Note be in
excess of$3,630,000 and shall be determined in the manner as provided in Exhibit "L".
(e) The obligation of the Agency to remit payments of the Tax Increment Revenues
shall commence as of the fiscal year and the December 10 or April 10 property'tax installment next
succeeding the date of the Promissory Note and shall continue thereafter until the earlier of (i) the
payment in full of the Reimbursement Amount pursuant to the terms of the Promissory Note, or (ii)
April 27, 2021. Prior to the date of the issuance of the Certificate of Completion and the execution and
delivery of the Promissory Note, the Agency shall be entitled to retain all amounts of the Tax
Increment Revenues generated upon the Full Development Site for uses by the Agency in accordance
with the Redevelopment Plan with no obligation to hold, refrain from expending or remit such amounts
pursuant to this Agreement. In the event that any amounts remain due and payable under the
Promissory Note during the 2020-21 fiscal year, it shall be the sole responsibility and obligation of the
Developer to assure that payments are remitted by the Developer to the County of San Bernardino Tax
Collector adequately in advance of the termination date of the Redevelopment Plan to allow for
submittal of all necessary documentation to the Agency and the processing by the Agency of any final
remittance of the Tax Increment Revenues to be made by the Agency on or before April 27, 2021.
Such payments of the Tax Increment Revenues shall be remitted by the Agency to the Developer
within thirty (30) calendar days after the Developer has provided written documentation reasonably
acceptable to the Agency evidencing that the applicable property taxes on the Full Development Site as
of each December 10 and/or April I 0 (or any other delinquency date established by the County for the
payment of supplemental property taxes) have been duly paid in full (i.e. taxing authority
acknowledgments of the taxes having been paid showing the amount of the taxes paid and the amount
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of the one percent (I %) general property tax). The Agency shall within thirty (30) calendar days after
receipt of the documentation required by this Section, remit the appropriate payment of the Tax
Increment Revenues based upon the method of calculation thereof to the Developer. Any failure of the
Agency to dispute in writing the adequacy of the documentation as submitted by the Developer within
the applicable 30-day period of time, shall constitute approval of same by the Agency. The Agency
shall be obligated to provide written notice to the Developer within said 30-day.period of time as to
any inadequacy of any documentation provided by the Developer to the Agency. Failure of the
Agency to remit the requested payment of the Tax Increment Revenues within ten (10) calendar days
after the expiration of the initial thirty-day period for review of the documentation as submitted by the
Developer, unless notice has been provided by the Agency to the Developer in the manner as provided
above, shall subject the Agency to a three percent (3%) late charge on the amount owed and interest at
the rate of five percent (5%) per annum calculated on the number of days from the due date of the
applicable payment until such amount has been paid to the Developer.
(I) The parties recognize that the Agency will be contributing to the City an amount
not to exceed an additional $3,000,000 (the "Additional Agency Contribution") for the completion of
the Interchange Improvements by the City. In the event that the City attempts to impose any traffic
mitigation fee upon the Full Development Site or to increase the "fair share" contribution of the Full
Development Site for the Interchange Improvements or in any other manner attempts to subject the
Full Development Site to the DIF or any other traffic impact mitigation requirements or costs
("Additional City Exactions"), the Agency agrees to provide a written statement to the City to the
effect that the Additional Agency Contribution shall be deemed to be used in whole or in part, as
necessary, to off-set or be deemed to be applied as a payment of any of the Additional City Exactions.
Nothing contained herein shall prevent the Agency from applying all or any portion of the Additional
Agency Contribution that is not required for the payment or credit towards any Additional City
Exactions to be used in a similar manner for the payment or credit of DIF or other traffic fees for any
one or more other development projects within the area encompassed by the Redevelopment Plan. The
extent of the Agency obligation to the Developer pursuant to this subsection (I) shall not exceed
$3,000,000 for any of the Additional City Exactions, and the Developer shall be required to pay to the
City any amounts which are in excess of such dollar figure.
(g) It shall be a condition precedent to each payment of the Tax Increment
Revenues hereunder that as of each such Tax Increment Revenues payment due date there has been no
Transfer, assignment, or sale or other conveyance of the Full Development Site or any interest in this
Agreement which is prohibited by this Agreement. In the event that the Buyer should either (i)
Transfer any interest in the Agreement in violation of the Agreement at any time prior to the issuance
. of the Certificate of Completion for the Full Development Site, or (ii) sell all or any portion of the Full
Development Site to a tax exempt entity without such buyer agreeing to make the "in-lieu" payments
referenced in Section 3.08 of the Agreement during the term of this Promissory Note, the obligation of
the Agency for any further remittances of the Tax Increment Revenues under this Promissory Note
shall immediately cease and terminate as to that portion of the Full Development Site to which such
prohibited Transfer has occurred or such other sale or conveyance pursuant to item (ii) above has
occurred.
(h) The right to receive the Reimbursement Amount as provided in this Section 3.09
is personal to the Developer and shall remain the right and property of the Developer, not passing to .
any future owner of all or any portion of the Full Development Site. Notwithstanding, the Developer
at any time may assign or pledge such right to receive the Reimbursement Amount.
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(i) This Section 3.09 shall survive the termination of this Agreement provided that
the Close of Escrow has occurred and the payment pursuant to subsection (b) above has been remitted
by the Developer to the Agency in the manner as specified therein.
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ARTICLE IV
USE OF THE FULL DEVELOPMENT SITE AND THE EXCHANGE TRACT
Section 4.01. Uses of the Full Develooment Site.
(a) The Developer covenants and agrees for itself, its successors, and assigns that
the portion of the Property that is to be improved to accommodate, transmit, retain or detain storm
water shall be used solely for such purposes.
Grant Deed.
The covenant of this Section 4.01(a) shall run with the land as set forth in the Agency
(b) The Developer further covenants and agrees for itself, its successors and assigns
that the Project shall be improved and developed in accordance with the Scope of Development. The
Developer covenants to develop the Project in conformity with all applicable laws. The covenants of
this Section 4.0 I (b) shall also run with the land until the earlier date on which the Certificate of
Completion is recorded or the fifth (5th) anniversary date of recordation of the Agency Grant Deed.
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(c) It is understood and agreed by the Developer that, except as referenced in
Section 4.02 below, neither the Developer, nor its assigns or successors shall use or otherwise sell,
transfer, convey, assign, lease, leaseback or hypothecate the Project or any portion thereof to any entity
or party, or for any use of the Project, that is partially or wholly exempt from the payment of real
property taxes pertinent to the Project, or any portion thereof, or which would cause the exemption of
the payment of all or any portion of such real property taxes, unless such grantee agrees to pay the in
lieu payments as provided in Section 3.08(b). The covenant of this Section 4.01(c) shall run with the
land for the term as set forth in the Agency Grant Deed.
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Section 4.02. Maintenance of the Prooertv. The Developer covenants and agrees for
itself, its successors, and assigns to maintain the Property consistent with the maintenance level of
similar storm drain areas in the City or as shall be otherwise reasonably required by the City. The
Developer, upon completion of the storm water drainage basin improvements on the Property and the
public backbone stormwater collector system on the Full Development Site, shall offer to dedicate to
the City that portion of the Property on which such storm water drainage basin improvements have
been constructed, together with such public backbone storm water collector system. In the event that.
such offer of dedication is accepted by the City, the Developer shall have no further obligations under
this Section 4.02 for the maintenance and ownership thereof. The Developer acknowledges that the
City will require, as a condition to the acceptance of (i) such storm drain area and facilities and (ii) the
Exchange Tract as a public right-of-way for the roadway realignment of the University Parkway grade
separation crossing, that such areas shall be made subject to a landscape maintenance assessment
district for which an assessment lien shall be levied against the Full Development Site, and the annual
payments required for such landscape maintenance assessment district shall be the obligation of the
Developer as the landowner or any successor in interest to the Developer as the owner of the Project or
any portions thereof as provided in resolution creating such district. It is contemplated that the district
will be established as a "default" district with the City and the land owner entering into an agreement
providing for the City to exercise the landscape maintenance rights of the district only upon the default
of the land owner to maintain in accordance with the requirements of such agreement.
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-- Section 4.03. Obligation to Refrain from Discrimination. The Developer covenants
"-' and agrees for itself, its successors, its assigns and every successor in interest to the Property or any
part thereof, that there shall be no discrimination against or segregation of any person, or group of
persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property; nor shall the
Developer, itself or any person claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessee or vendees of the Property. The covenant of this
Section 4.03 shall run with the land for the term as setforth in the Agency Grant Deed with respect to
the Property.
Section 4.04. Form of Nondiscrimination and Nonsegregation Clauses. The Developer
covenants and agrees that the Developer shall refrain from restricting the sale, lease, sublease, rental,
transfer, use, occupancy, tenure or enjoyment of the Property (or any part thereof) on the basis of sex,
marital status, race, color, religion, creed, ancestry or national origin of any person. The Agency Grant
Deed shall contain provisions that all deeds, leases or contracts pertaining to the Property shall contain
or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(I)
In deeds: "The grantee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status, national origin, or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the
premises herein conveyed. The foregoing covenants shall run with the land".
'''-
(2) In leases: "The Lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, and this lease is made
and accepted upon and subject to the following conditions: That there shall be
no discrimination against or segregation of any person or group of persons, on
account of race, color, creed, religion, sex, marital status, national origin, or
ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee itself, or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use, or occupancy, of tenants lessees, sublessee, subtenants, or vendees in the
premises herein leased".
(3) In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor
shall the transferee or any person claiming under or through it, establish or
I"".... permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy, of tenants,
lessees, sub lessees, subtenants, or vendees of the premises herein transferred."
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ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
\""...
Section 5.01. Defaults - General.
(a) In the event that a breach or default may occur prior to the Close of Escrow, the
remedies of the parties shall be as set forth in Article II of this Agreement.
(b) If the Developer fails to complete Project in accordance with this Agreement,
the sole and exclusive remedy of the Agency shall be to not issue the Promissory Note, in which event
the Developer shall have no right to receive any portion of the Tax Increment Revenues, all of which
shall be retained by the Agency free and clear of any claim of the Developer or its successors or
aSSIgns.
(c) From and after the Close of Escrow and subject to the extensions
of time set forth in Section 6.05 hereof, except as provided in Section 5.01(b) above, failure or delay
by either party to perform any term or provision of this Agreement shall constitute a default under this
Agreement; provided, however, that if a party otherwise in default commences to cure, correct or
remedy such default within thirty (30) calendar days after receipt of written notice specifying such
default and shall diligently and continuously prosecute such cure, correction or remedy to completion
(and where any time limits for the completion of such cure, correction or remedy are specifically set
forth in this Agreement, then within said time limits), such party shall not be deemed to be in default
hereunder.
--
(d) The injured party shall give written notice of default to the party in default,
specifying the default complained of by the injured party. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default.
(e) Any failure or delays by either 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 such rights or remedies. Delays
by either party in asserting any of its rights and remedies shall not deprive either party of its right to
institute and maintain any actions or proceedings, which it may deem necessary to protect, assert or
enforce any such rights or remedies.
Section 5.02. Legal Actions.
(a) In addition to any other rights or remedies, except as provided in Section 5.01(b)
above, either party may institute legal action to cure, correct, or remedy any default, to recover
damages for any default, or to obtain any other remedy consistent with the purposes o(this Agreement.
Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of
California, in any other appropriate court in that County, or in the Federal District Court in the Central
District of California.
(b) The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
( -
\...,.,
(c) In the event that any legal action is commenced by the Developer against the
Agency, service of process on the Agency shall be made by personal service upon the Executive
Director or Chair of the Agency, or in such other manner as may be provided by law.
4838-7503-7441.5 - 9/11/06 ct
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"- (d) In the event that any legal action is commenced by the Agency against the
Developer, service of process on the Developer shall be made by personal service on John Magness at
the address set forth in Section 6.01 below, as an authorized corporate officer of the Developer (or
such other Agent for service of process and at such address as may be specified in written notice to the
Agency), or in such other manner as may be provided by law, and shall be valid whether made within
or without the State of California.
Section 5.03. Rights and Remedies are Cumulative. Except with respect to any rights
and remedies expressly declared to be exclusive in or otherwise restricted by the provisions of Article
11 of this Agreement as relates to a default or breach occurring before the Close of Escrow, the rights
and remedies of the parties as set forth in this Article V following the Close of Escrow are cumulative
and the exercise by either party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default or any
other default by the other party.
--
Section 5.04. Damages. If either party defaults with regard to any provision of this
Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party.
If the defaulting party does not diligently commence to cure such default after service of the notice of
default and promptly complete the cure of such default within a reasonable time, not to exceed ninety
(90) calendar days (or such shorter period as may otherwise be specified in this Agreement for
default), after the service of written notice of such a default the applicable party shall be deemed to be
in default under this Agreement. In the event that a default relates to a matter arising after the Close of
Escrow, except as provided in Section 5.01(b) above, the defaulting party shall be liable to the other
party for damages caused by such default. In the event that a default relates to a matter arising before
the Close of Escrow, the remedies of the parties shall be limited to the liquidated damage sums as set
forth in Article 11 of this Agreement.
Section 5.05. Specific Performance Prior to Close of Escrow. Except as otherwise
provided in Section 2.22 hereof, prior to the Close of Escrow neither party shall have or assert the
equitable remedy of specific performance in the event of a default or breach, and the remedies of the
parties with respect to such a breach or default prior to the Close of Escrow shall be limited to the
termination rights and liquidated damage amounts or as set forth in Article 11 of this Agreement. Prior
and after the Close of Escrow if either party defaults under any of the provisions of this Agreement, the
nondefaulting party shall serve written notice of such default upon such defaulting party. If the
defaulting party does not commence to cure the default and diligently and continuously proceed with
such cure within thirty (30) calendar days after service of the notice of default, and such default is not
cured within a reasonable time thereafter (and where any time limits for the completion of such cure,
correction or remedy are specifically set forth in this Agreement, then within said time limits), the
nondefaulting party, at its option, may institute an action for specific performance of the terms of this
Agreement, except as otherwise provided in Section 5.01 (b) and Section 5.04 hereof.
Section 5.06. Agencv Rights of Termination Following Close of Escrow.
~,"'''''.
(a) Subject to written notice of default which shall specify the Developer's default
and the action required to commence cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at
its option may terminate the provisions of this Agreement that survive the Close of Escrow if the
'-
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Developer in breach of this Agreement assigns or attempts to assign this Agreement, or any right
therein, or attempts to make any total or partial sale, transfer or conveyance of the whole or any part of
the Project or the improvements to be developed thereon in violation of the terms of this Agreement,
and the Developer does not correct such violation within thirty (30) calendar days from the date of
receipt of such notice.
(b) Subject to written notice of default, which shall specify the Developer's default
and the action required to commence cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at
its option may terminate this Agreement if the Developer: (a) does not within the time limits set forth
in this Agreement or as specifically provided in the Schedule of Performance, subject to extensions
authorized by this Agreement due to force majeure or otherwise, submit development plans,
construction drawings and related documents acceptable to the Planning Department and Building
Division of the City for plan check purposes and in order to obtain building permits for the Project,
together with applicable fees therefore, all prepared to the minimum acceptable standards as required
by tire Planning Department and Building Division of the City for commencement of formal review of
such documents and as required by this Agreement~ or (b) does not carry out its other responsibilities
under this Agreement or in accordance with any modification or variance, precise plan, design review
and other environmental or governmental approvals and such default is not cured or the Developer
does not commence and diligently and continuously proceed with such cure within thirty (30) calendar
days after the date of receipt of written demand therefore from the Agency.
(c) Subject to written notice of default which shall specify the Developer's default
.r- and the action required to commence cure of same and upon thirty (30) calendar days notice to the
'-' Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at
its option may terminate this Agreement if upon satisfaction of all conditions precedent and concurrent
therefore under this Agreement, the Developer does not take title to the Property under tender of
conveyance by the Agency, and such breach is not cured within thirty (30) calendar days after the date
of receipt by the Developer of written demand therefore from the Agency.
Section 5.07. Right to Reenter. Repossess and Revest.
(a) The Agency shall, upon thirty (30) calendar days notice to the Developer which
notice shall specify this Section 5.07, have the right, at its option, to re-enter and take possession of all
or any portion of the Property, together with all improvements thereon, and to terminate and revest in
the Agency the estate conveyed to the Developer hereunder, if after conveyance of title, the Developer
(or its successors in interest) shall:
(I) Fail to commence construction of all or any portion of the Phase I improvements
as required by this Agreement for a period of ninety (90) calendar days after
written notice to proceed from the Agency; provided that the Developer shall not
have obtained an extension or postponement to which the Developer may be
entitled pursuant to Section 6.05 hereof; or
(2)
Abandon or substantially suspend construction of all or any portion of the
Project improvements, whether for Phase I or Phase II, for a period of ninety
(90) calendar days after written notice of such abandonment or suspension from
the Agency; provided that the Developer shall not have obtained an extension or
postponement to which the Developer may be entitled to pursuant to Section
6.05 hereof; or
""-
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(3)
Assign or attempt to assign this Agreement, or any rights herein, or transfer, or
suffer any involuntary transfer, of the Project or any part thereof, in violation of
this Agreement, and such violation shall not have been cured within thirty (30)
calendar days after the date of receipt of written notice thereof from the Agency
to the Developer.
(b) The thirty (30) calendar day written notice specified in this Section shall specify
that the Agency proposes to take action pursuant to this Section and shall specify which of the
Developer's obligations set forth in Subsections (I) through (3) herein have been breached. The
Agency shall proceed with its remedy set forth herein only in the event that the Developer continues in
default of said obligation(s) for a period of thirty (30) calendar days following such notice or, upon
commencing to cure such default, fails to diligently and continuously prosecute said cure to
satisfactory conclusion. .
(c) The right of the Agency to reenter, repossess, terminate and revest shall be
subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit:
(I) Any mortgage, deed of trust or other security interest;
(2) Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages, deeds of trust or other security interests;
.,......
(3)
"-
Any leases, declarations of covenants, conditions and restrictions, easement
agreements or other recorded documents applicable to the Property, the Project,
the Project Site or the Full Development Site.
(d) The grant deed to the Property or to any portion thereof conveyed by the
Developer to another party (other than to the City) shall contain appropriate references and provisions
to give effect to the Agency's right, as set forth in this Section under specified circumstances prior to
the recordation of the Certificate of Completion with respect to such portion, to reenter and take
possession of such portion, or any part thereof, with all improvements thereon, and to terminate and
revest in the Agency the estate conveyed to the Developer.
(e) Upon the revesting in the Agency of title to the Property, or any part thereof, as
provided in this Section, the Agency shall, pursuant to its responsibilities under State law, use its best
efforts to resell the Property, or any part thereof, at fair market value as soon and in such manner as the
Agency shall find feasible and consistent with the objectives of such law, to a qualified and responsible
party or parties (as determined by the Agency) who will assume the obligations of making or
completing the improvements, or such other improvements in their stead as shall be satisfactory to the
Agency and in accordance with the uses specified for the Property, or any part thereof. Upon such
resale of the Property, or any part thereof, the proceeds thcreof shall be applied:
(I)
..,-
,
'-"
First, to make any payment made or necessary to be made to discharge or
prevent from attaching or being made any subsequent encumbrances or liens due
to obligations incurred with respect to the making or completion of the agreed
improvements or any part thereof on the Property or any portion thereof; next to .
reimburse the Agency on its own behalf or on behalf of the City for all actual
costs and expenses incurred by the Agency and the. City, including but not
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,- limited to customary and reasonable fees or salaries to third party personnel
"- engaged in such action (but excluding the Agency's or the City's general
overhead expense), in connection with the recapture, management and resale of
the Property or any portion thereof; all taxes, assessments and water and sewer
charges paid by the City and/or the Agency with respect to the Property or any
portion thereof; any amounts otherwise owing to the Agency by the Developer
and its successor transferee; and
(2) Second, to the extent that any and all funds which are proceeds from such resale
. are thereafter available, to reimburse the Developer, or its successor transferee,
up to the amount equal to the sum of: (I) the Purchase Price paid by the
Developer for the Property (or allocable to the applicable part thereof); and (2)
the costs incurred for the development of the Property, or applicable part
thereof, or for the construction of the improvements thereon including, but not
limited to, costs of carry, taxes and items set forth in the Developer's cost
statement which shall be submitted to and approved by the Agency.
(3) Any balance remaining after the foregoing application of proceeds shall be
retained by the Agency.
(I) Notwithstanding anything herein to the contrary, all rights of the Agency to re-
enter the Property under this Section 5.07 shall terminate upon the issuance of Certificate of
Completion for the Project or if earlier, upon the conveyance to the City of the storm drain portion of
the Property as provided in Section 4.02 above.
.#~"
_.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices. Demands and Communications Between the Parties.
(a) Any and all notices, demands or communications submitted by any party to
another party pursuant to or as required by this Agreement shall be proper if in writing and dispatched
by messenger for immediate personal delivery, or by registered or certified United States mail, postage
prepaid, return receipt requested, to the principal office of the Agency and the Developer, as
applicable, as designated in Section 1.03(a) and Section 1.03(b) hereof. Such written notices, demands
and communications may be sent in the same manner to such other addresses as either party may from
time to time designate as provided in this Section. Any such notice, demand or communication shall .
be deemed to be received by the addressee, regardless of whether or when any return receipt is'
received by the sender or the date set forth on such return receipt, on the day that it is dispatched by
messenger for immediate personal delivery, or two (2) calendar days after it is placed in the United
States mail as heretofore provided.
(b) In addition to the submission of notices, demands or communications to the
parties as set forth above, copies of all notices shall also be delivered by facsimile as follows:
,"""
'-
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to the Developer:
HSB 1-215, L.P. and SE 1-215, L.P.
c/o HilIwoodlSan Bernardino, LLC
Attention: Michelle Kirk and John Magness
105 North Leland Norton Way, Suite 3
San Bernardino, California 92408
FAJ(: (909)382-0073
~
with copy to:
Hillwood Development Company, LLC
Attention: Michele M. Ringnald
5430 LBJ Freeway, Suite 800
Dallas, Texas 75240
F AJ(: (972) 201-2889
the Agency:
Redevelopment Agency of the City of San Bernardino
Attention: Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
F AJ(: (909) 663-2294
with copy to:
Lewis Brisbois Bisgaard & Smith LLP
Attention: Timothy J. Sabo
650 Hospitality Lane, Suite 600
San Bernardino, California 92408
F AJ(: (909) 387-1138
,-
'-
Section 6.02. Conflict of Interest. No member, official or employee of the Agency
having any conflict of interest, direct or indirect, related to this Agreement and the development of the
Project shall participate in any decision relating to this Agreement. The parties represent and warrant
that they do not have knowledge of any such conflict of interest.
Section 6.03. Warranty Against Payment of Consideration for Agreement. The
Developer warrants that it has not paid or given, and will not payor give, any third party any money or
other consideration for obtaining this Agreement. Third parties, for the purposes of this Section, shall
not include persons to whom fees are paid for professional services if rendered by attorneys, financial
consultants, brokers, accountants, engineers, architects and the like when such fees are considered
necessary by the Developer.
Section 6.04. Nonliability of Agency Officials and Employees. No member, official or
employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the
event of any default or breach by the Agency or for any amount which may become due to the
Developer or to its successor, or on any obligations under the terms of this Agreement, except for gross
negligence or willful acts of such member, officer or employee.
Section 6.05. Enforced Delay: Extension of Time of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be
'-- in default, or considered to be a default, where delays or defaults are due to the force majeure events of
war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the
public enemy, epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather-
4838.7503-7441.5 . 9/11106 ct
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-
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('-
I.-
caused delays, inability to secure necessary labor, materials or tools, delays of any contractors,
subcontractor or supplier, which are not attributable to the fault of the party claiming an extension of
time to prepare or acts or failure to act of any public or governmental agency or entity (provided that
acts or failure to act of the City or Agency shall not extend the time for the Agency to act hereunder
except for delays associated with lawsuit or injunction including but without limitation to lawsuits
pertaining to the approval of this Agreement, and the like). An extension of time for any such force
majeure cause shall be for the period of the enforced delay and shall commence to run from the date of
occurrence of the delay; provided however, that the party which claims the existence of the delay has
first provided the other party with written notice of the occurrence of the delay within ten (10) calendar
days after the commencement of such occurrence of the delay.
The inability of the Developer to obtain a satisfactory commitment from a construction
lender for the development of the Project or to satisfy any other condition of this Agreement relating to
the development of the Project shall not be deemed to be a force majeure event or otherwise provide
grounds for the assertion of the existence of a delay under this Section 6.05. The parties hereto
expressly acknowledge and agree that changes in either general economic conditions or changes in the
economic assumptions of any of them which may have provided a basis for entering into this
Agreement and which occur at any time after the execution of this Agreement, are not force majeure
events and do not provide any party with grounds for asserting the existence of a delay in the
performance of any covenant or undertaking which may arise under this Agreement. Each party
expressly assumes the risk that changes in general economic conditions or changes in such economic
assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or
hardship on the continued performance of such party under this Agreement, but that such
inconvenience or hardship is not a force majeure event and does not excuse the performance by such
party of its obligations under this Agreement.
Section 6.06. Inspection of Books and Records. The Agency shall have the right at all
reasonable times at the Agency's cost and expense to inspect the books and records of the Developer
pertaining to the Project and/or the development thereof as necessary for the Agency, in its reasonable
discretion, to enforce its rights under this Agreement; provided, however, that the Agency shall give
the Developer at least twenty-four (24) hours' prior written notice of such exercise of the right to
inspect said books and records. Matters discovered by the Agency shall not be disclosed to third
parties unless required by law or unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights of the Agency hereunder. The Developer shall also have the
right at all reasonable times to inspect the books and records of the Agency pertaining to the Project
and/or the development thereof as pertinent to the purposes of this Agreement.
Section 6.07. Approvals.
(a) Approvals required of the Agency or the Developer, or any officers, agents or
employees of either the Agency or the Developer, shall not be unreasonably withheld and approval or
disapproval shall be given within a reasonable time.
(b) The Executive Director of the Agency is authorized to sign on his or her own
authority amendments to this Agreement, which are of routine or technical nature, including minor
adjustments to the Schedule of Performance.
4838-7503-7441.5 - 9/11/06 Cl
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Section 6.08. Real Estate Commissions. The Agency shall not be liable for any other
real estate commissions, brokerage fees or finder fees, which may arise from or related to this
Agreement.
Section 6.09. Indemnification. The Developer agrees to indemnify and hold the City
and the Agency, and their officers, employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to (i) any act or omission of the Developer
in performing its obligations hereunder, (ii) the approval and execution of this Agreement by the
Agency, and (iii) the adoption by the City of the resolution relative to the Agency approval and
execution of this Agreement. The Agency agrees to indemnify and hold the Developer and its officers,
employees and agents, harmless from and against all damages, judgments, costs, expenses and fees
arising from or related to any act or omission of the Agency in performing its obligations hereunder.
Section 6.10. Release of Developer from Liabilitv. Notwithstanding any provision.
herein to the contrary, the Developer shall be relieved of any and all liability for the obligations of the
Developer hereunder with regard to the Project when the Certificate of Completion for the Full
Development Site has been issued by the Agency hereunder with respect thereto, other than any
covenants and obligations provided by the grant deed by which the Property is conveyed to the
Developer hereunder.
r-
'-'
Section 6.11. Attornevs' Fees. If either party hereto files any action or brings any
action or proceeding against the other arising out of this Agreement, or is made a party to any action or
proceeding brought by the Escrow Agent, then as between the Developer and the Agency, the
prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its
reasonable attorneys' fees as fixed by the Court in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City
Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys'
fees" for purposes of this Section.
Section 6.12. Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators, legal representatives, successors
and assigns.
Section 6.13. Business Registration Certificate. The Developer warrants that it
possesses, or shall obtain immediately after the execution and delivery of this Agreement, and maintain
during the period of time which is the longer of (i) the term of this Agreement or (ii) the period of time
that the Note is outstanding and due and payable from the Agency to the Developer, a business
registration certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, together with
any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are
legally required to be maintained by the Developer to conduct its business activities within the City.
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement.
(a) This Agreement shall be executed in three (3) duplicate originals each of which
is deemed to be an original. This Agreement includes forty-eight (48) pages and twelve Exhibits
,,-. lettered "A" through "L", inclusive, which constitute the entire understanding and Agreement of the
parties.
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(b) This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the parties with
respect to all or any portion of the Project and the development thereof.
'-
(c) None of the terms, covenants, agreements or conditions set forth in this
Agreement shall be deemed to be merged with the grant deed conveying title to the Property, and this
Agreement shall continue in full force and effect before and after such conveyance until issuance of the
Certificate of Completion for the Full Development Site.
(d) All waivers of the provisions of this Agreement and all amendments hereto must
be in writing and signed by the appropriate authorities of the Agency and the Developer.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation.
(a) In the event that the Developer has not approved, executed and delivered this
Agreement to the Agency within forty-five (45) calendar days after approval hereof by the governing
body of the Agency, then no provision of this Agreement shaH be of any force or effect for any
purpose and the Agency shaH have no further authorization to execute and deliver this Agreement
thereafter. The date of this Agreement shaH be the date when this Agreement shaH have been
approved by the Agency.
,....
'- (b) The Developer and the Agency agree to permit recordation of this Agreement or
a notice of agreement in customary form, concurrently upon the Close of Escrow in the Office of the
County Recorder for the County where the Property is located.
1/1
11/
/II
/II
/II
/II
1/1
1/1
/II
...._~,
,
"- /II
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",- IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
'-- the dates set forth below.
AGENCY
Redevelopment Agency of the City of San Bernardino
Date:
By:
Maggie Pacheco, Executive Director
Agency Counsel
DEVELOPER
HSB 1-215, L.P.,
a California limited partnership
--
By:
HSB GP, LLC,
a California limited liability company,
Its general partner
."",
By: HGI GP, LLC,
a Texas limited liability company,
its sole member
By: HGI Group, L.P.,
a Texas limited partnership,
its sole member
By: Hillwood Associates, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its general partner
By:
Name:
Title:
.-.
i
'-- SE 1-215, L.P.,
a California limited partnership
4838-7503-7441.5 - 9111/06 ct
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P \Agcndas\Agenda Attacllmenl$\Agnnu-Amcnd 2006'1(!9.18.06 Hillwood Final DDA dol:
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By:
HSB GP, LLC,
a California limited liability company,
Its general partner
By: HGI GP, LLC,
a Texas limited liability company, its sole member
By: HGJ Group, L.P"
a Texas limited partnership, its sole member
By: Hillwood Associates, L.P"
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its general partner
By:
Name:
Title:
- [All Signatures Must Be Notarized]
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4838-7503-7441.5 - 9/11/06 ct
46
P:\Agenda5\Agenda ^"achmeflti\Agmu-Amcnd 2006\09.18..06 Hillwood final DDA doc
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EXHIBIT "A"
THE PROPERTY
4838.7503.7441.5
9/11/06 ct Exhibit A
P_\Agendas\Agellda Anachmenls\Agrmls-Amend 2006\09.18.06 Hill.....ood Final DD.'. dot
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EXRIBI1' OA"
All that portio" of ~ltscllpi'lbe Rancho, in th" City of $,," Bernardino
County of San Bernardino, State of California, as per plat recordeJ
in Book 7 of Naps. .Page 23, records of said J;Ounty-, lying ..-itbin',the
I<est half of Section 20, Tm.nship I North, ila:\~e 4 Kest, San Bernardino
f~ridian, as the lines of the Go~ernment Survey ..-ould be extendeu across
said Rancho, and th'lt portion of Lot 0, Tract No. 17~I, as per plat
recorded in Book 27 of Maps, POiges 41 through 43. inelush'e, records of
said Count)', more particularly described as follo..-s:
.........
8EGl~Xr!\G at the intersection of the !\orthe'lsterly line of the Atchison,
Topeka and Santa Fe Railroad Right of "ay ..-ith the SoutheasteTly linc' of
that certain parcel of land con\'ered to Culligan Zeoliu Cor.lpany by
QJitclaim Deed recorded Octobt>r 29, 19~7, as Torrens Ooc\r.lent 1\0. 31~1:,
in the office of the Regist3~ of titl"s of said Count)'; thence !\orth
SI'03':J~" East. along the Southeasterly line of said Culligan parcel, 'l
dis~ance of 1341.00 feet to the South"esterly line of Interstate High":l)'
IS,.-as sho"n on State High..-a)' Right of I\'ar ~\ap File :\0. 9HO~5; thence
~'orth 26'48'06" West, along the South"esterl)' line of said State High",,)'
Right of I\'ay, a distance of 1130.48 feet to the beginning of a tangent
curve; thence Northw"sterly aJong said South"esterly line and along said
curve, concave Southwesterly and having a radius of 6397.00 feet, threugh
a central angle of 4'20'00", a distance of 4S3.S1 feet; thence South
58051'54" ",est. radial to said curve, a distance of 70.00 feet to ~I point
in a line parallel with and distant 70.00 feet South~'esterl)", """,sured at
right angles, from the Southwesterly line of said State Ihgh..-ay Right of
Kay; thence Southea~terly along said parallel line and along a cun'c,
concave South..-estcrly and ha~ing a radius of 6327.00 feet, fTom an
initial tangent bearing South 31 .OS' 06" East, through a central angle of
4.20'00", a distance of 478,52 feet; thcncc South Z6'~S'06" East, along
said parallel line, a distance of 730.~8 feet; thence South 38'21'02"
.est 1390.77 feet to a point in the Northeasterly line of said Railroad
Right of "'ay that bears !o:orth 3S'56'S6" Kest 100.00 feet fror.t thepoint
of BEGI~'XI:--;G; thence South 38'56'56" East 100.00 feet to the point of
BEGr~~I:--;G, containing 10,07 acres, moTC or less,
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EXHIBIT "B"
FULL DEVELOPMENT SITE
1. The description of the Full Development Site III its present configuration IS attached
hereto as Exhibit "B-1".
2. When the parcel map is completed and filed for the property described on the attached
Exhibit "B-1", the "Full Development Site" as used in this Agreement shall mean the site
as reflected on such parcel map.
4838-7503-7441.5
9/II/06cl
Exhibit B
P;\Agendas\Alenda Allaclllnentsl.Agrmts.Amend 2006\09-18-06 Hil1wood Final DDAdoc
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4825-3764-4801.1
9/12/06 jmm
Exhibit B
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EXHIBIT "B-1"
DESCRIPTION OF FULL DEVELOPMENT SITE
All that certain real property situated In the County of San Bernardino, State of
California, described as follows:
Parcell: (APN: 0266-073-02\
That portion of Section 19, Township 1 North, Range 4 West, San Bernardino
Base and Meridian, Rancho Muscupiabe Unsurveyed, in the City of San
Bernardino, County of San Bernardino, State of California, described as follows:
'-
Beginning at a point, said point being the Intersection of the Easterly line of said
Section 19 and the Easterly line of the right of way of the Atchison, Topeka and
Santa Fe Rallway as created by Deed to the Southern Calffornla Railroad
Company recorded June 2, 1891, in Book 132, Page 260 of Deeds; and
augmented by Deed to the Atchison, Topeka and Santa Fe Railway Company
recorded August 26, 1914, in Book 554, Page 335 of Deeds, said point also being
described as lying North O. 02' 30" West, 329.19 feet from the corner of Tract
No. 2258, at the intersection of the Cajon State Highway and California Avenue
as shown on Map of Tract No. 2258, recorded in Book 32, Pages 72 and 77 of
Maps, inclusive, records of said County;
Thence along the Easterly line of said Section 19, North 00 02' 30" West, 2603.16
feet to a point;
Thence West 1295.63 feet to a point;
Thence South 336.68 feet to a point;
Thence South 1.20' 30" East, 658.10 feet, more or less, to a point on the
Easterly line of the right of wayof said Atchison, Topeka and Santa Fe Railway;
Thence along the Easterly line of said right of way South 380 33' 30" East,
2056.90 feet more or less, to the point of beginning.
Excepting therefrom:
All oil, gas and other minerals of every bend and chilracter in, on or under the
above described lands without the right of surface entry or use, as conveyed to
Nortex Minerai No.2, L.P., a Texas limited Partnership In Mineral Deed recorded
October 19, 2004 as Instrument No. 2004-0759938 of Offidal Records.
Parcel 2: (APN: 0266-073-05\
A portion of Lot D, In the City of San Bernardino, County of San Bernardino,
Stilte of California, In Tract No. 1741, recorded in Book 27, Pages 41, 42 and 43
of ""aps, records of San Bernardino County, described as follows:
Beginning at the Northwest corner of said Lot D;
Thence East 660 feet to a corner of said lot;
Thence South 34.02 feet;
~_.
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4838-7503-744IJ
9/1 2!06 jrnm
Exhibit B-1
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\.,.. Thence South 51. 26' 30. West, 604.90 feet to a point on the North right of way
line of the Atchison, Topeka and Santa Fe Railway as created by Deed to the
California Southern Railroad Company recorded May 14, 1885, In Book 41, Page
274 of Deeds; and augmented by Deed to the Atchison, Topeka and Santa Fe
Railway Company recorded July 26, 1912 In Book 512, Page 124 of Deeds;
Thence North 380 33' 30. West, 300.0 feet along said right of way line to the
Southwest comer of said Lot Di
Thence North 176.46 feet to the point of beginning.
Excepting therefrom:
All 011, gas and other minerals of every bend and character in, on or under the
above described lands without the right of surface entry or use, as conveyed to
Nortex Mineral No.2, L.P., a Texas Umlted Partnership In Minerai Deed recorded
October 19, 2004 as Instrument No. 2004-0759938 of Official Records.
Parcel 3: IAPN: 0266-073-10\
A portion of Muscupiabe Rancho, in the City of San Bernardino, County of San
Bernardino, State of California, as per Plat recorded in Book 7, Page 23 of Maps,
records of San Bernardino County, lying within the West Half of Section 20,
Township 1 North, Range 4 West, San Bernardino Base and Meridian, as said
lines would be extended across said Rancho, in the County of San Bernardino,
State of California, and particulatiy described as follows:
~.
"-- Beginning at a point In the West line of said Section 20, That is North 0.02' 30.
West, 224.03 feet from a 1 inch Iron pipe marking the West Quarter comer of
said section;
Thence South 380 33' 30. East, 1681.85 feet;
Thence South 51" 26' 30. West, 495.10 feet to a point on the East line of Lot D,
In Tract No. 1741, as recorded in Book 27, Pages 41, 42 and 43 of Maps, records
of San Bernardino County;
Thence North 34.02 feet to a corner of said lot;
Thence West 660 feet to the Northwest corner of said lot;
Thence North O. 02' 30' West, 1589.73 feet along the West line of said Section
20 to the point of beginning.
Excepting therefrom:
All oil, gas and other minerals of every bend and character in, on or under the
above described lands without the right of surface entry or use, as conveyed to
Nortex Mineral No.2, L.P., a Texas limited Partnership In Mineral Deed recorded
October 19, 2004 as Instrument No. 2004-0759938 of Official Records.
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4838-7503-7441.3
9/12/06 jnun
Exhibit B-1
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........ Parcel NO.4: (APN: 0266-073-04)
A portion of Lot "Dn In Tract 1741, In the City of San Bernardino, County of San
Bernardino, State of California, as per Plat thereof recorded In Book 27 of Maps,
Pages 41,42 and 42, records of said County, described as follows:
Commencing at the Northwest comer of said Lot no";
Thence East 660 feet to a corner of said lot;
Thence South 34.02 feet to the True Point of Beginning;
Thence South 510 28' 05" West 604.90 feet, being along the Southeasterly line of
the property conveyed to the Culligan Zeolite Company, a Corporation, by Deed
flied with The Registrar on November 5, 1945, as Document Number 25521, to a
point on the Northeasterly right of way of the Atchison, Topeka and Santa Fe
Railroad as created by Deed to the California Southern Railroad Company
recorded May 14, 1885, In Book 41 of Deeds, Page 274 and augmented by Deed
to the Atchison, Topeka and Santa Fe Railway Company recorded July 26, 1912,
in Book 512 of Deeds, Page 124;
Thence Southeasterly along said right of way South 38" 31' 55" East 277.61
feet;
Thence North 51" 28' OS" East 383.826 feet to a point on the line of said Lot "D";
Thence North 354.877 feet to the True Point of Beginning.
Saving and excepting from the above described property that portion described
as follows:
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Beginning at a point on the Northeasterly line of the Atchison, Topeka and Santa
Fe Railroad Company's right of way, which point is South 380 31' 55" East
577 .61 feet from the intersection of the Northeasterly line of the said right of
way and the Northerly prolongation of Rancho Muscuplabe Course 38, said
Course 38 being also the West line of Lot "D" of said Tract 1741;
Thence North 51" 28' OS" East,!. 75 feet;
Thence North 62" 40' 0" West 4.28 feet;
Thence South 380 31' 55" East 3.91 feet to Point of Beginning.
Parcel 5: (APN: 0266-073.11)
A portion of Muscupiabe Rancho, in the City of San Bernardino, County of San
Bernardino, State of California, as per Plat recorded in Book 7, Page 23 of Maps,
records of San Bemardino County, lying within the West Half of Section 20,
Township 1 North, Range 4 West, San Bemardino Base and Meridian, as lines of
the Government Survey would be extended across said Rancho In the County of
San Bernardino, and particularly described as follows:
Commencing at the point In the West line of said Section 20 that is North O' 02'
30. West, 224.03 feet from a 1 Inch Iron pipe marking the West Quarter corner
of said section;
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4838-7503-7441.3
9/1V06jrnm
Exhibit B-1
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Thence South 38' 31' 55" East for .55 feet to a point marked by a 2 inch iron
pipe, said point being 6439.02 feet North from Station 38 along the Northerly
Course 38 of the Rancho Muscupiabe and being the True Point of Beginning;
Thence South 38' 31' 55" East, 1681.30 feet along the Northeasterly line of the
property conveyed to the Culligan Zeloite Company, a Corporation, by Deed filed
with the Registrar on November 5, 1945 as Instrument No. 25521, to the most
Easterly comer of said property;
Thence South 51' 28' OS" West, 495.10 feet along the Southeasterly line of the
property conveyed by said Deed Document No. 25521, to a point on the line of
Lot D, Tract No. 1741, in Book 27, Pages 41, 42 and 42 of Maps;
Thence South 354.877 feet along the line of said Lot D;
Thence North 51. 28' OS" East, 1702.174 feet;
Thence North 38. 31' 55" West, 1236.61 feet to a point of curve;
Thence on a curve Westerly, concave to the South with a radius of 557.19 feet,
through an angle of 89' 39' 38" for a distance of 871.93 feet;
Thence on a curve Westerly concave to the North with a radius of 432 feet
through an angle of 63' 56' 33" for a distance of 466.65 feet to a point on the
Northerly prolongation of Course 38 of the Rancho Muscupiabe, which point lies
Northerly along said course, 6522.75 feet from Station 38 of the Rancho
Muscuplabe;
Thence due South 83.73 feet to the True Point of Beginning.
Excepting therefrom that portion conveyed to the State of California by Deed
recorded November 7, 1958 in Book 4648, Page 440 of Official Records more
fully described as follows:
That portion of the Rancho Muscupiabe, as per Plat recorded In Book 7, Page 23
of Maps, records of said County and lying within the West Half of Section 20,
Township 1 North, Range 4 West, San Bernardino Base and Meridian,
unsurveyed, as the lines of said Section 20 would be If extended across said
Rancho, described as follows:
Beginning at a two Inch iron pipe marking the Northeast corner of Parcel 2 of
those certain parcels of land as conveyed to Culligan, Inc., by Deed filed April 9,
1947 as Document No. 29265 in Torrens;
Thence along the Northeasterly line of said Parcel 2, North 38' 56' 24" West,
1,236.49 feet (record North 38' 31' 55" West, 1,236.61 feet);
Thence along a tangent curve, concave Southerly with a radius of 557.19 feet,
through an angle of 66. 40' 35", a distance of 648.41 feet;
Thence South 36. 03' East, 692.20 feet;
Thence along a tangent curve, concave Southwesterly with a radius of 6,412 feet
(record. 6,397.00 feet), through an angle of 9' 15' 00", a distance of 1,035.17
feet;
Thence South 26048' East, 32.41 feet to the Southeasterly line of said Parcel 2,
distant along said Southeasterly line South 51.03' 32" West (record South 51.
28' OS" West), 513.55 feet from the point of beginning;
Thence along said Southeasterly line North 51' 03' 32" East, 513.55 feet to the
point of beginning.
4838-7503-744\ ]
9/12106 jrnm
Exhibit B-1
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Also excepting therefrom that portion conveyed to Redevelopment Agency of the
City of San Bernardino, California by Deed recorded March 6, 1986, as
Instrument No. 86-059467 of Official Records more fully described as follows;
..........
AU that portion of Muscupiabe Rancho, in the he City of San Bernardino, County
of San 8ernardino, State of California, as per Plat recorded in Book 7, Page 23 of
Maps, records of said County, lying within the West Half of Section 20, Township
1 North, Range 4 West, San Bernardino Meridian, as the lines of the Government
Survey would be extended acrosS said Rancho, and that portion of Lot D, Tract
No. 1741, as per Plat recorded in 800k 27, Pages 41, through 43 inclusive of
Maps, records of said County, more particularly descrlbed as follows;
Beginning at the Intersection of the Northeasterly line of the Atchison, Topeka
and Santa Fe Railroad right of way with the Southeasterly line of that certain
parcel of land conveyed to the State of California by that certain Grant Deed
recorded January 21, 1957 in Book 4135, Page 158 of Official Records
(erroneously recorded as, the Southeasterly line of that certain parcel of land
conveyed to Culligan Zeolite Company by Quitclaim Deed recorded October 29,
1947 as Torrens Document No. 31412, In the Office of the Registrar of TItles of
said County);
Thence North 510 03' 04 n East along the Southeasterly line of said Culligan
Parcel, a distance of 1341.00 feet to the Southwesterly line ofInterstate Highway
15, as shown on State Highway Right of Way Map Ale No. 914045;
Thence North 26. 48' 06" West along the Southwesterly line of said State
Highway RIght of way, a distance of 1130.48 feet to the beginning of a tangent
curve;
'- Thence Northwesterly along said Southwesterly line and along said curve,
concave Southwesterly and having a radius of 6,412 feet (record 6397.00 feet),
through a central angle of 40 20' 00", a distance of Ml3.61 feet;
Thence South 580 51' 54" West, radial to said curve a distance of 70.00 feet to a
point in a line parallel with and distant 70.00 feet Southwesterly, measured at
right angles from the Southwesterly line of said State Highway Right of way;
Thence Southeasterly along said p"rallel line "nd "long a curve, Southwesterly
and having a radius of 6327.00 feet, from an initial tangent bearing south 31"
06' 06" East through a central angle of 4020' 00", a distance of 478.52 feet;
Thence South 260 48' 06" East along said parallel line, a distance of 730.46 feet;
Thence South 36. 21' 02" West, 1390.77 feet to a point In the Northeasterly line
of said Railroad right of way that bears North 38. 56' 56" West, 100.00 feet from
the point of beginning;
Thence South 38. 56' 56" East, 100 feet to the point of beginning.
Also excepting therefrom any portion thereof lying within Parcel 2 hereinbefore
described.
Excepting therefrom;
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4~38-7S03-7441.3
9112/06jrnm
Exhibit 8-1
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All oil, gas and other minerals of every bend and character in, on or under the
above described lands without the right of surface entry or use, as conveyed to
Nortex Mineral No.2, L.P., a Texas Limited Partnership in Mineral Deed recorded
October 19, 2004 as Instrument No. 2004-0759938 of Official Records.
Parcel 6: IAPN: 0148-011-061
That portion of the Rancho Muscupiabe, in the City of San Bernardino, County of
San Bernardino, State of California, as per Plat recorded in Book 7, Page 23 of
Maps, of said County, more particularly described as follows:
Beginning at the Northwest corner of Parcel 2 of the lands of CUlligan Zeolite
Company, above described In Deed flied In the Office of the Registrar of Land
Titles of said County on April 9,1947, as Document No. 29265;
Thence along the boundary line of said Parcel 2, along a nontangent curve,
c.oncave Northerly with a radius of 432 feet, from a tangent bearing South 66.
43' 11" East through an angle of 61051' 12", an arc distance of 466.36 feet to a
1 1,7 Inch Iron pipe marking a point of reverse Curve;
Thence along said reverse curve Southerly with a radius of 557.19 feet, from a
tangent bearing North 51025' 37" East through an angle of 22057' 24", an arc
distance of 223.85 feet to a line parallel with and distant 176.00 feet
Southwesterly, measured at right angles from that certain course described as
having a bearing of North 36003' 00. West and a length of 600.95 feet in the
third parcel of land described in Final Order of Condemnation rendered in Case
No. 90470 in the Superior Court of the State of California In and for the County
of San Bernardino, a certified copy of said Final Order having been recorded
January 27, 1959 in Book 4715, Page 80 of Offidal Records of said County;
Thence Course A along said parallel line North 36.03' 00" West, 144.95 feet;
Thence Course B, North 380 35' 40. West, 450.45 feet;
Thence Course C, North 73" 31' 34" West, 150.75 feet to the beginning of a
tangent curve, concave Northeasterly and having a radius of 200 feet;
Thence Course 0, Northwesterly along said curve, through an angle of 540 18'
29., an arc distance of 189.56 feet to the Northerly prOlongation of Course 38, as
shown on said Plat of Rancho Muscupiabe;
Thence along said prolongation South 00 23' 36" East, 798.06 feet to the point of
beginning.
Excepting therefrom all minerals, oils, gases, and other hydrocarbons by
whatsoever name known that may be within or under the parcel of land
hereinabove described; without, however, the right to drill, dig or mine through
the surface thereof, as reserved to the State of California by director's Deed
recorded February 17, 1961, in Book 5354, Page 493 of Official Records.
Excepting therefrom any portion thereof lying within Parcel 2 hereinbefore
described.
Excepting therefrom:
4838-7503-7441.3
9/12/06jmm
Exhibit B-1
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All oil, gas and other minerals of every bend and character In, on Dr under the
above described lands without the right of surface entry or use, as conveyed to
Nortex Mineral No.2, LP., a Texas limited Partnership in Mineral Deed recorded
October 19, 2004 as Instrument No. 2004-0759938 of Official Records.
Parcel 7: (APN: 0148-011-40)
That portion of Lot D, Tract No. 1741, in the City of San Bernardino, County of
San Bernardino, State of Cafifornia, as per Plat recorded In Book 27, Page 41 of
Maps, and that portion of Rancho Muscupiabe, In the City of San Bernardino,
County of San Bernardino, State of California, as per Plat recorded in Book 7,
Page 23 of Maps, both records of said County, described as a whole as follows:
Beginning at a 2 inch iron pipe marking the most Westerly corner of that certain
parcel of land as conveyed to the State of California by Deed recorded January
21, 1957 in Book 4135, Page 158 of Official Records of said County;
Thence along the Southwesterly line of said State of California parcel of land,
said Southwesterly line being also the Northeasterly line of the Atchison, Topeka
and Santa Fe Railway Company's Right of way as created by Deed to the
California southern Railroad Company recorded May 14, 1885, in Book 41, Page
274 of Deeds; and augmented by Deed to the Atchison, Topeka and Santa Fe
Railway Company recorded July 26, 1912, In Book 512, Page 124 of Deeds;
South 38' 56' 56" East (record South 380 31' 55" East), 1,073.39 feet to the
most Southerly corner of said State of California parcel of land;
Thence along the Southeasterly line of said State of California parcel of land
North 510 03' 32" East (record North 510 28' 05" East), 1,341.27 feet;
Thence Course A North 26048" West, 1,097.94 feet to the Northwesterly line of
said State of California parcel of land, distant along said Northwesterly line North
51' 03' 32" East (record North 510 28' 05H East), 1,572.21 feet from the point of
beginning;
Thence along said Northwesterly line South 510 03' 32" West, 1,572.21 feet to
the point of beginning.
Excepting therefrom that portion conveyed to Redevelopment Agency of the City
of San Bernardino by Grant Deed recorded March 6, 1986. as Instrument No. 86-
059467 of Offidal Records, more fUlly described as follows:
All that portion of Muscuplabe Rancho, in the City of San Bernardino, County of
San Bernardino, State of California, as per Plat recorded il1 Book 7, Page 23 of
Maps, records of said County, lying within the West Half of Section 20, Township
1 North, Range 4 West, San Bernardino Meridian, as the I ines of the Government
Survey would be extended across said Rancho, and that portion of Lot D, Tract
No. 1741, as per Plat recorded In Book 27, Pages 41 through 43 inclusive of
Maps, records of said County, more particularly described as follows:
Beginning at the intersection of the Northeasterly line of the Atchison, Topeka
and Santa Fe Railroad right of way with the Southeasterly line of that certain
parcel of land conveyed to the State of California by that certain Grant Deed
4838-7503-744 U
9/12/06 jmrn
Exhibit B.1
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recorded January 21, 1957 in Book 4135, Page 158 of Official Records
(erroneously recorded as, the Southeasterly line of that certain parcel of land
conveyed to Culligan Zeolite Company by Quitclaim Deed recorded October 29,
1947 as Torrens Document No. 31412, in the Office of the Registrar of Titles of
said County);
Thence North 51" 03' 04" East along the Southeasterly line of said Culligan
Parcel, a distance of 1341.00 feet to the Southwesterly line of Interstate Highway
IS, as shown on State Highway Right of Way Map File No. 914045;
Thence North 26048' 06" West along the Southwesterly line of said State
Highway Right of Way, a distance of 1130.48 feet to the beginning of a tangent
curve;
Thence Northwesterly along said Southwesterly line and along said curve,
concave Southwesterly and having a radius of 6,412 feet (record 6397.00 feet),
through a central angle of 4020' DO", a distance of 483.81 feet;
Thence South 58" 51' 54" West, radial to said curve a distance of 70.00 feet to a
point In a line parallel with and distant 70.00 feet Southwesterly, measured i.lt
right angles from the Southwesterly line of said State Highway Right of way;
Thence Southeasterly along said parallel line and along a curve, Southwesterly
i.lnd having a radius of 6327.00 feet, from an initial tangent bearlng South 31"
OS' 06" East through a central angie of 4" 20' 00", a distance of 478.52 feet;
Thence South 26048' 06" Ei.lst along said parallel line, a distance of 730.48 feet;
Thence South 380 21' 02" West, 1390.77 feet to a point in the Northeasterly line
of said Railroad right of way that bears North 380 56' 56" West, 100.00 feet from
the point of beginning;
Thence South 380 56' 56" East, 100 feet to the point of beginning.
Excepting therefrom;
All oil, gas and other minerals of every bend and character in, on or under the
above described lands without the right of surface entry or use, as conveyed to
Nortex Mineral No.2, loP., a Texas Umited Partnership in Minerai Deed recorded
October 19, 2004 as Instrument No. 2004-0759938 of OFficial Records.
Parcel 8: IAPN: 0148-011-39 and 0266-073-08)
That portion of Muscupiabe Rancho, in the City of San Bernardino, County of San
Bernardino, State of California, as per Plat recorded in Book 7, Page 23 of Maps,
records of said County, lying within the West Half of Section 20, Township 1
North, Range 4 West, San Bernardino Meridian, as the lines of the Government
Survey would be extended across said Rancho, and that portion of lot 0, Tract
No. 1741, as per Plat recorded in Book 27, Pages 41 through 43 indusive, of
Maps, records of said County, more particularly described as follows;
Beginning at the intersection of the Northeasterly line of the Atchison, Topeka
<lnd Santa Fe Raliroad right of way with the Southeasterly line of that certain
parcel of land conveyed to the State of California by that certain Grant Deed
recorded January 21, 1957 in Book 4135, Page 158 of Official Records
(erroneously recorded as, the Southeasterly line of that certain parcel of land
conveyed to CUlligan Zeolite Company by Quitclaim Deed recorded October 29,
4838-7503-7441.3
9J12/06jlTUn
Exhibit B-1
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1947 as Torrens Document No. 31412, in the Office of the Registrar of Titles of
said County);
Thence North 510 03' 04" East along the Southeasterly line of said Culligan
Parcel, a distance of 1341.00 feet to the Southwesterly line of Interstate Highway
15, as shown on State Highway Right of Way Map File No. 914045;
Thence North 26. 48' 06" West along the Southwesterly line of said State
Highway Right of Way, a distance of 1130.48 feet to the beginning of a tangent
curve;
Thence Northwesterly along said Southwesterly line and along said curve,
concave Southwesterly and having a radius of 6,412 feet (record 6397.00 feet),
through a central angle of 40 20' 00", a distance of 483.81 feet;
Thence South 580 51' 54" West, radial to said curve a distance of 70.00 feet to a
point In a line parallel with and distant 70.00 feet Southwesterly, measured at
right angles from the Southwesterly line of said State Hig hway RIght of way;
Thence Southeasterly along said parallel line and along a curve, Southwesterly
and having a radius of 6327.00 feet, from an Initial tangent bearing South 31.
08' 06" East through a central angle of 4020' 00", a distance of 478.52 feet;
Thence South 26. 48' 06" East along said parallel line, a distance of 730.48 feet;
Thence South 38.21' 02" West, 1390.77 feet to a point In the Northeasterly line
of said Railroad right of way that bears North 38. 56' 56" West, 100.00 feet from
the point of beginning;
Thence South 380 56' 56" East, 100 feet to the point of beginning.
ALSO INCLUDING THE PROPERTY DESCRIBED IN EXHIBIT A.
4838-7503-7441.3
9/12/06jmm
Exhibit B-1
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EXHIBIT "C"
PHASE I DRAWING
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INOiCATCS '"PHASE ,'" AHEA.I
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P.l,.s. NO. 2767
nee. €XP. JUN( JO. 2txJ8
4825-37644801.1
9/12/06 jmm
Exhibit C
-
EXHIBIT "D"
'-
EXCHANGE TRACT
TII/I;NES E_INO, INC.
1134' RRESrONE. JKJCIlEtIARO
UlltIRAOA, CA. """
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EXHIBIT liD"
LEGAL Dl!SCRJPTION
EXCHANrJE PJ.RCEI..
AN iIoQREGl./LJI;RL Y SHAPED PARCEl. OF UNO, SlTWlTE" IN SEcrlON II. 70WHSHIP f NORTH,
RANGE .. M>EST. SAN BERNA.RDtNO SASE mo JAERJDWi, RNICHO I.a1SCUPWJE lfNSLIRV~.
IN THE CiTY OF SAN BERtlAflDINO, COUJ(TY OF SAN .8ERNAROINO. STAlE" OF CALRlR1M.
DESCRI8EO AS FOUOWS:
BIiGINNlNQ.oIlT mE INJERSroTlOft oF THE" NORTHEASTERt'r' LINE OF THE RJOHT.{)F.W.ollY OF
ATCHISON. TOf'8CA ~UO SANT'A FE RAJl,WAY {75,OU fEeT I<<tF-lWJ1H). t"8f DEED Re'CORDfO
AUOUS'T X 11114"., BOOK ~.'w. PA(JE J.3:i OF DeEDS ~rn A tHIE ~et. WJ'TH Nft) 3O.W FEET
EAS1ERL V. MEA&.JiIED AT RfGHf AN<lEL$, FROM THE CE,mHtuNE. Of Wo'IVERSJTY P,AAtcWAY_AS
P~$ENn. or E~rs,
7IlfrNCE ALotlG SAJll NORTlll:ASTERL Y VUE OF RAILWAY. SOUTH jtp ~~'().I' EAST, 3TIt.d7 FrLT:
THEncEHORrH 5'.01' 2rrEAST, '0'8.67 fEET, THBt'CE NORTH08"2T t5"WEST. ..'tufflFEET,.
fHf;NCE N<:>RtH.i4" n"ot'1I\.ESf. 2~ tQFEET: r1-lENCE"ORtIfW31'$5~Ej,ST. .>>.10 Fur;
THEj,CE l<<)RnI 1"'~' rj'~5T, 82. 1.0 ffFT: THENCE f,ORTH g 22' OS' wesT. 37.0& FEET;
........
THENCE. NORTH 111" 22' 1}5' "':EST. 2".1.<15 FEET TO THE BfGff'ffll,!/G OF A TANGENT CURVE.
CONCA"'C EASTERl.. Y AND HAW/tO A RAOJUS OF BQ2.00 FEET;
THENCE NORrH€Rt. v AlQN(j .?lJl) ~, 1J.mOUGH A CEN1'RAJ. ANGlE OF 21' (14' or AN....F?C
LENGtH OF- 308.BSl fEEr TO rriE SOtITJ.{ERL Y liNE OF P.I.RCE! UAP NO. Slf95. .4S PER l<AP HUm
IN IWOK t 15 Pll,"CS fI-t IlfIJD ~j OF M..-..Pot (N T1~ QFFJC. OF THii OOJJNTY MCQRJ)(iFt or- SJI,"
COONiY;
THENCe 1\!.000G S.VO SOUTHERt. y u.~ AND rrs Vlt'57ERr. Y PROtONGATlON SOUTn 8'?" Ji' fl'
~'Esr. 32(iSfffr TO SArpE.JI5TF.Rt. YU/(f. OF UNNl'RSJiYPAR/<.WAY;
THE:kCE AJ..Orl'C> $JlJD EASTEf./..!. Y WlE a~ U,'iIVH?SHV PARKWAY THE FOllCYMNG m() ('1)
COURSES:
SOOTk <Y? 28' OS',E,\ST, 3J11_i'6-FEET ANO swmtlt~.(r -tJ'[A.ST, &i8.5~FEET TO n-IEl"OtNT OF
Bl!G1NlltNG.
fXJNfAIImIG: 202.008 SQUARE FEE.7 ~ UiJl AC~S
E'X1IJBIT MO.'" ....n-ACHEO !iERETONiD8Y Tf1JS REFERENCe I.(AOf A PART HERFOF~
OESCRfPrroN WAS M.EPAREDBY tJE OR ur.'OER U'f DrRECT.'ON.
J Q. ELLZEY
PLS, No. 2767
REO. EXP, C)(iIJGUB
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9/12/06 jmm
Exhibit D
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UNlVEF1SITY
TANGENT TABLE:
NUU!JEP. DISTANCE
71 '08.67'
T2 2.J5..l!r
T,J 82.10'
U J7.08'
15 LtH."~'
T6 802.00'
17 802,00'
TS J2.68'
lY .ll6.76.
4825-3764-4801.1
9/1 2/06 jmm
BCARINC
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EXawtt:rPARCEl.
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LEGEND:
~JO" "txat.4NG(" PARCEl. -: I
CONTAJNS: 202,0(18 so. FT.
4.6Jl ACRrS
SIJIlVEYOR:
SHErr 1 OF T
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N Ofr22'\!I" W 418-86'
PRfAcREO tJIVI)[R THE ~ OF:
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P,J..s. NO. 2767
ReG. exP. JVflt JO. 200ll
Exhibit D
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EXHIBIT "En
AGENCY GRANT DEED.
4838.7503-7441.5
9/1 1/06 cl Exhibit E
P:\Asendu\Aaenda AnllChmcnls\Agmu-Amcnd 2006\09-18-06 HiI1wood Final DDA doc
,""""'"
RECORDING REQUESTED BY AND
AFTER RECORDING MAIL TO:
---
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)
)
)
)
)
)
San Bernardino, California 92408 )
Attention: Michelle Kirk and John Magness)
(Space Above for Recorder's Use)
Exempt from Recording Fee pursuant to Government Code Section 27383
HSB 1-215, L.P.
SE 1-215, L.P.
c/o HillwoodlSan Bernardino, LLC
105 North Leland Norton Way, Suite 3
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic of the State of California ("Grantor") hereby grants to HSB 1-215, L.P.
("HSB"), a California Limited Partnership, an undivided fifty percent (50%) interest, and to SE
1-215, L.P. ("SE"), a California Limited Partnership (HSB and SE shall collectively be referred
to as "Grantee"), an undivided fifty percent (50%) interest, in and to the real property legally
described in Exhibit "A" and by this reference incorporated herein ("Property").
"'-
I. The Property is conveyed subject to that certain 2006 Disposition and
Development Agreement dated as of , 2006 ("Agreement") By and Between
Redevelopment Agency of the City Of San Bernardino and HSB 1-215, L.P., a California
Limited Partnership, and SE 1-215, L.P., a California Limited Partnership. The provisions of the
Agreement are incorporated herein by this reference and shall be deemed to be a part hereof as if
set forth at length herein.
2. The Grantee covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Grantee or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees in or on the Property.
.
All deeds, leases or contracts made relative to the Property shall contain the
following nondiscrimination clauses:
/'~.~.
(a) In deeds: "The grantee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, age, marital status,
4838-7503-7441.5
9/11106 ct Exhibit E
P;\Agendas\AgendaAua(:hmenl$\Agnn$_Amc:nd 2006'.09-18-06 Hillwood Final DDAdoI;
'-
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national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the grantee, or any
person claiming under or through the grantee, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, locations, number, use or occupancy of tenants, lessees, subtenants,
sub lessees or vendees in or on the land herein conveyed. The foregoing covenants
shall run with the land."
--.
(b) In leases: "The lessee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through
them, and this lease is made and accepted upon and subject to the following
conditions:
That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, age, marital status,
national origin or ancestry in the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the land herein leased, nor shall the lessee itself, or any
person claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy, of tenants, lessees, subtenants, sublessees or vendees
in the land herein leased."
,,-..
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(c) In contracts: "There shall be no discrimination against or segregation of
any person or group of persons on account of race, color, creed, religion, sex, age,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the transferee itself, or any
person claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of
the land."
3. No violation or breach of the covenants, conditions, restnctlOns,
provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage, deed of trust or other financing or security instrument
permitted by the Agreement; provided, however, that any successor of Grantee to the Property
shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions,
whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's
sale or otherwise.
4. The covenants contained in this Grant Deed against discrimination and
segregation shall remain in effect in perpetuity.
5. The covenants contained in this Grant Deed shall be binding for the
benefit of the Grantor and its successors and assigns, and such covenants shall run in favor of the
Grantor for the entire period during which such covenants shall be in full force and effect,
.......... without regard to whether the Grantor is or remains an owner of any land or interest herein to
4838-7503-7441.5
9/11/06 cJ Exhibit E
P:\A~ndas\Aienda AnKhmcnlS\Agnru-Amcn4 2006\09.18-06 Hillwood Final DDAdlx
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which such covenants relate. The Grantor, in the event of any breach of any such covenants,
shall have the right to exercise all of the rights and remedies, and to maintain any actions at law
or suits in equity or other proper proceedings, to enforce the curing of such breach as provided in
the Agreement or by law. The covenants contained in this Grant Deed shall be for the benefit of
and shall be enforceable only by the Grantor and its successor.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument
to be executed on their behalf by their respective officers thereunto duly authorized this _ day
of , 2006.
Grantor:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public
body, corporate and politic
By:
Maggie Pacheco, Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Lewis Brisbois Bisgaard & Smith LLP
By:
Agency Counsel
4838-7503-7441.5
9JIII06ct
Exhibit E
P:\A.gendas\A8t'l1da Anaehmenl$\A8rmlS-Amend 2006\09-18-06 Hillwood Final DDA_doc
~-,
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ACCEPTANCE OF GRANT DEED
THE PROVISIONS OF THIS GRANT DEED ARE HEREBY APPROVED AND
ACCEPTED.
Grantee:
HSB 1-215, L.P.,
a California limited partnership
By: HSB GP, LLC,
a California limited liability company,
Its general partner
By: HGI GP, LLC,
a Texas limited liability company,
its sole member
By: HGI Group, L.P.,
a Texas limited partnership,
its sole member
By: Hillwood Associates, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its general partner
By:
Name:
Title:
4838-7503-7441.5
9/11/06cl
Exhibit E
Pc\Agel'\das\Asenda Allachll1l:nts\Agnnls.Amc:nd 2006\09.18-06 Hinwood Final DDAdlx
",-....
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SE 1-215, L.P.,
a California limited partnership
By: HSB GP, LLC,
a California limited liability company,
Its general partner
By: HGI GP, LLC,
a Texas limited liability company, its sole member
By: HGI Group, L.P.,
a Texas limited partnership, its sole member
By: Hillwood Associates, L.P.,
a Texas limited partnership,
its general partner
By:
Hillwood Development Company, LLC,
a Texas limited liability company,
its general partner
By:
Name:
Title:
4838-7503-7441.5
9/11/06 ct
Exhibit E
P:\Agel'ldas\Ageoda Anathmenls\Agmws-Amend 2006\09-18-06 Hill....ood FiN! DDA doc
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EXHIBIT "A"
LEGAL DESCRIPTION
4838-7503-7441.5
9/11/06 ct Exhibit E
P:l.A.gencb.slAgenda Anachll'll:ms\Agrnws-Amend 2006\09-18-06 Hillwood Filial DDAdoe
-
........
EXRIBI"I' eA-
AI I that portio:> of ~Usa'Pi:1bc RandlO, in the Ci t)" of S:1n Bernardino
County of San Bernardino, State of California,. as per plat recordd
in Book 7 of Naps, .Page 23, records of said p;iunt}',lYin/: within..the
liest half of Section 20, To~nship 1 North, Range 4 Ilest, San Bernardino
~kridian, as the lines of the Government Survcy would bc extended across
said Rancho, and that portion of Lot 0, Tract No. 1741, as pcr plat
recorded in Book 27 of ~laps, P;;ges 41 through 43, inclusi,'c, records of
said County, nore partiallarl}' described as follows:
.......
BEGI\~[~G at. the intersection of the Kortheasterlv line of thc Atchiso~,
Topeka and Santa Fe Railroad Right of I\ay with the Southeaster!" li:1(' of
that cenain parcel of land com'eyed to OJll igan Zeolite Cor.lpany by
QJitclaim Deed recorded October 29, 19.;7, as Torrens Do=ent r-:o. 3141:,
in the office of the Regist.!' of titles of said County; thence ~orth
51003'()~" East, along the Southeasterly line of said OJlligan paree!, a
dis~ance of 1341.00 feet to the South,,'esterl}' line of Interstate High.-:l~'
IS, .as sho~n on State High"a}' Right of Wa}' ~bp File Xo. 9140~S; thence
!-'orih 26048 '06" West, along the South"esterly line of said State High""y
Right of I\'ay, a distance of 1130.48 feet to the beginning of a tangent
curve; thence NOrthwesterly along said South"esterly line and along said
curve, concave Southwesterly and having a radius of 6397.00 feet, through
a central angle of ~020'OO", a distance of ~S3.gl feet; thence South
58051'5411 ""'est.. Tadial to said curve, a distance of 70..00 feet tO;.l point
in a line paraliel with and distant 70.00 fcet Southwesterl}', me~surd at
right angles, from the South",esterly line of said State lIigh"ay Right of
lia}'; thencc Southeasterly along said parallel line and along a curve,
concave Southwestcrly and having a radius of 6327.00 feet, from an
initial tangent bearing South 31008'06" East, through a ccntral angle of
4020'00", a distance of 478.52 fcet; thencc South 260~3'06.' East, along
said parallel line, a distance of 730.48 feet; thence South 38021 '02"
~est 1390.77 feet to a point in the ~rthcasterly line of said RailroaJ
Right of Way that bears /l:orth 38056'56" Iiest 100.00 feet fTOr.! the point
of JlEGI~'XII\G; thence South 38056'56" East 100.00 fcet to the point of
BEGI~,I~G, containing 10.07 acres, more or less.
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EXHIBIT "F"
PROJECT DESCRIPTION AND SCOPE OF DEVELOPMENT.
The first phase of development will consist of mass grading for the entire site, an industrial
warehouse and distribution facility on approximately (38) acres with ancillary streets, all wet and
dry utilities, including a storm water detention basin and other related improvements, as shown
on the attached Exhibit "C" drawing.
4838-7503-7441.5
9/11/06 cl
Exhibit F
P IAllendas\Agenda AUai;hmcnlslAgrmlho\mend 2006\09.18.(16 Hillwood Final DDAdoc
,
-
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I'
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EXHIBIT "G"
STREET IMPROVEMENT USES OF THE EXCHANGE TRACT
THIENESIiNG1NEERlNG. /He.
'4Ut ntISTON! 8out.eVARD
LA IMADA. CA. tH1I
~f..b:15
.".....
~r1OF'
EXHIBIT "G"
UAPROVEII~Hr USES OIl THE EXCHANGE PARCEL
THE FOLLOWING PROPOSED IMPROVEMENTS, FOR THE BENERT OF HlLLWOOO'S
PROJECT SITE, WILL BE CONSTRUCTED WITHIN THE EXCHANGE PARCEL AS
OESCRISliD IN EXHIBlT"fY A/JD SHOWN ON EXHIBIT '0- t';
IN7ERlM STREET IMPROVEMENTS PRIOR TO CONSTRUCTION OF THE VI. TlMA TE
OVERPASS.
INSTALLATION OF WATER UNE A,W) DRY UTlt.lTIES.
FIRE DEPARTMENT EMERGENCY ACCESS ROAD WITH FENCING AND GA TES AS
REOUIREO
/Y~,,:S1fTlf)l"f1\'tlrrSlEmIilT,Id'~
Ltll:!.~,,-(lg."M)1f
4825,3764-4801.1
9/12/06 jmm
Exhibit G
.
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EXHIBIT "H"
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CERTIFICATE OF COMPLETION
WHEN RECORDED, MAIL TO:
(Space Above Line For Use By Recorder)
CERTIFICATE OF COMPLETION
I, , the Secretary of the Redevelopment
Agency of the City of San Bernardino (the "Agency") hereby certify as follows:
.........,
Section 1. The improvements required to be constructed in accordance with that
certain Disposition and Development Agreement (the "Agreement") dated ,2006, by and
between the Agency and HSB 1-215, L.P., a California Limited Partnership and SE 1-215, L.P., a
California Limited Partnership (collectively, the "Developer"), on Assessor's Parcel Number
0148-011-19 and 0266-073-08 (the "Property") more fully described in Exhibit "A" attached
hereto and incorporated herein by this reference and certain adjacent property described in the
attached Exhibit "B" (the "Full Development Site"), have been completed in accordance with the
provisions of said Agreement. The Agreement or a memorandum thereof is recorded at
of the Official Records of San Bernardino County, California.
........
....-
.
Section 2. This Certificate of Completion shall constitute a conclusive
determination of satisfaction of the agreements and covenants contained in the Agreement with
respect to the obligations of the Developer, and its successors and assigns to construct and
develop the Project (as defined in the Agreement), excluding any normal and customary tenant
improvements and minor building "punch-list" items, and including any and all buildings and
any and all parking, landscaping and related improvements necessary to support or which meet
the requirements applicable to the Project and its use and occupancy of the Property and the Full
Development Site, whether or not said improvements are on the Property, the Full Development
Site or on other property subject to the Agreement, all as described in the Agreement, and to
otherwise comply with the Developer's obligations under the Agreement with respect to the
Property and the dates for the. beginning and completion of construction of improvements
thereon under the Agreement. The Agreement or any memorandum thereof recorded as
referenced above is released and no longer shall affect, burden or be binding on the Property or
the Full Development Site or the Developer or its successors and assigns. However, this
Certificate of Completion shall not affect the rights of the Agency to enforce any covenant in the
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4838-7503-7441.5
9/11/06 ct Exhibit H
"\Agendas\Agenda AtlaChmenls\AifTnls.Amend 2006\09-18-06 Hillwood final DDA d.x
".- Agency Grant Deed pursuant to which the Property was conveyed under the Agreement. Said
'- Agreement is an official record of the Agency and a copy of said Agreement may be inspected in
the office of the Secretary of the Redevelopment Agency of the City of San Bernardino located
at 201 North "E" Street, Suite 301, San Bernardino, California, during regular business hours.
Section 3. The Property to which this Certificate of Completion pertains is more
fully described in Exhibit "A" attached hereto.
DATED AND ISSUED this
day of
,200_.
By:
Maggie Pacheco, Executive Director
Redevelopment Agency
of the City of San Bernardino
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4838.7503.7441.5
9/11/06ct
Exhibit H
PlAienda$\Aaenda Altachmc:nls\Agrmli_Amcnd 2006\09-18.06 Hill....ood Final DOAdoc
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EXRIPI,."A-
.,,~.....
All that portio=> of ~t1sclJpi:lbe Rancho, in the City of S:ln Bernardino
County of San Bernardino, State of California, as Per plat recorded
ill Book 7 of ~bps, .Page 23, records' of said ~t}., .1Yin/:witbin',the
lI"est half of Section 20, To~nship 1 North, Raftge 4 ","est, San Bernardino
f~ridian, as the lines of the Go~ernment Survey would be extended acress
said Rancho, and that portion of Lot D, Tract No. 1741, as per plat
recorded in Book 27 of ~laps, P:;ges 41 through 43, inelush'c, records of
said County. more particularly described as follo\.'s:
BEGI\~I~Gat' the intersection of the Kortheasterly line of thc Atchiso~,
Topeka and Santa Fe Railroad Right of I\ay ,,-ith the Southcasterly li,,(. of
that cenain parcel of land com'eyed to CUlligan ~eoliu Cor.1pany by
Q.Jitelaim Deed recorded October 29, 19n, as Torrens Do=ent 1\:0. 314]:.
in the office of the Regist:l:" of titll's of said County; thencc !-:orth
51 003 '9~" East, along the Southeasterly line of said CUI I igan parcel, a
distance of 1341.00 feet to th" South",estcrh' line of Interstate Hi~h'.:l\'
IS, .as sho"n on State High\.'ay Right of lI'ar ~bp File :io. 9H045; the~ce -
~'orih 26048'06" West, along the South\.'esterly line of said State Hi&h~"y
Rieht. of lI'a)', a distance of 1130.48 feet to the beginning of a tangent
cun'e; thence Northwesterly along said South"""sterly line and along said
curve, concave South"'esterly and having a radius of 6397.00 feet, through
a central angle of 4020'00''', a distance of 453.el feet; thence South
58051'54" ""est, radial to said curve, a distance of iO.OO feet to;t point
in a line parallel with and distant 70.00 feet South",esterly, measured at
right angles, from the Southwesterly line of said State lligh"ay Ri~ht of
Kay; thence Southea$terly along said parallel line and along a curvc,
concave South"'estcrly and ha~ing a radius of 6327.00 feet, from an
initial tangent bearing South 31 oOS' 06" East, through a central angle of
4020'00", a distance of 478.52 feet; thence South 260~8'06" East, alont:
said parallel line, a distance of 730.48 feet; thence South 380Z!'OZ"
Kest 1390.77 feet to a point in the Kortheasterly linc of said RailroaJ
Right of Way that bears ,,"orth 38056'56" I\est 100.00 feet fTOr.l the point
of BEGI\'XI:-;G; thence South 38056'56" East 100.00 feet to the point of
BEGI~'XI~G, containing 10,07 acres, more or less.
c_
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EXHIBIT "I"
PROMISSORY NOTE
4838-7503-7441.5
9/11/06cl
Exhibit I
P\Agcndas\Agcnda AttachmcnulAgmts-Amend 2006"09.18.06 HilI....oo4 fillal DOA Ocx:
-'.
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AGENCY TAX INCREMENT REVENUES PROMISSORY NOTE
Date:
$
San Bernardino, California
THE UNDERSIGNED, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body, corporate and politic (the "Agency"), promises to pay, and
pledges to HSB 1-215 ("HSB"), a California Limited Partnership, and to SE 1-215 LP. ("SE"), a
California Limited Partnership (HSB and SE shall collectively be referred to hereinafter as the
"Developer"), or order, or Developer's assignee, the payments of the Tax Increment Revenues
(as that term is defined below) due and owing by the Agency to the Developer in accordance
with and pursuant to the terms, covenants and conditions of this Agency Tax Increment
Revenues Promissory Note (the "Note") and the Agreement (as that term is defined in this Note),
together with interest on the unpaid principal balance thereof, at the Interest Rate (as that term is
defined in this Note), in lawful money of the United States, subject to the terms, covenants and
conditions of the Note. The principal, interest, late charges, fees and all other amounts due under
this Note are payable by the Agency to the Developer at 105 North Leland Norton Way, Suite 3,
San Bernardino, CA 92408, or at such other address as is designated by the Developer in a notice
to the Agency given as provided for in this Note.
I. Definitions. The initially capitalized terms defined herein shall have the following
meanings where appearing in this Note. Otherwise, any initially capitalized term (not defined
herein) shall have the meaning provided for in the Agreement (as defined below).
l.l Al!reement. The "Agreement" shall mean that certain 2006 Disposition and
Development Agreement, dated , 2006, by and between the Agency and the
Developer, and all exhibits attached thereto.
1.2 Citv. The "City" shall mean the City of San Bernardino.
1.3 Countv. The "County" shall mean San Bernardino County.
1.4 Fiscal Year. The "Fiscal Year" shall mean any given fiscal year for the County.
1.5 Full Development Site. The "Full Development Site" means the property
situated in San Bernardino, San Bernardino County, California described on the attached Exhibit
"A".
1.6 Initial Fiscal Year. The "Initial Fiscal Year" shall mean the 2007/2008 Fiscal
Year.
4838-7503.7441.5
911lf06ct
Exhibit I
PlAsenda,s\Agenda Anachmc:nUlAgrmts-Amend 2006\09-1&_06 Hill....,ood Final DOA doc
-
I. 7 Interest Rate. The "Interest Rate" shall mean five percent (5%) per annum and
shall accrue on the outstanding principal balance of the Note subject to the terms, covenants and
conditions of the Note.
..........
1.8 Late Charl!e. The "Late Charge" shall mean three percent (3%) on the payment
due and owing by the Agency to the Developer under this Note (subject to any applicable cure
period(s) in this Note and/or the Agreement).
1.9 Maturity Date. The "Maturity Date" shall mean the first business day following
the date that the outstanding principal balance of this Note, all accrued and unpaid interest, all
late charges, and all other amounts due and owing (collectively, the "Indebtedness") under this
Note are paid in full by the Agency to the Developer, or April 27, 2021, whichever occurs first.
1.10 Principal. The "Principal" shall mean and No/IOO
($ .00), as increased, decreased and adjusted from time to time, which has been
determined in accordance with Section 3.09(d) of the Agreement. Under no circumstances shall
the Principal be in excess of $3,630,000.
1.11 Term. The "Term" shall mean the term of this Note commencing on the date of
execution of this Note and continuing thereafter until the Maturity Date, subject to the terms,
covenants and conditions of this Note.
2. Interest. Commencing on the date of this Note, Interest shall accrue on the outstanding
__ Principal of this Note until the Maturity Date. Interest shall be computed based on a 365-day
year and the actual number of days elapsed.
3. Payment Of Principal, Interest and Late Charl!e.
(a) The Agency hereby pledges to the Developer certain tax increment revenues of
the Agency attributable to the Redevelopment Plan that are legally available to the Agency in
each fiscal year during the term of such pledge equal to approximately forty percent (40%) of the
one percent (I %) general property taxes paid by the Developer for the Full Development Site on
or after the date of this Note, less any pass-through amounts that are required by law to be
remitted to affected taxing agencies and County collection charges (the "Pass-through
Payments") and subordinate to any existing and future tax allocation bonded indebtedness
payable in whole or in part from the tax increment revenues pursuant to the Redevelopment Plan
and the State College Redevelopment Project Area, and deducting therefrom for each Fiscal Year
of the calculation the amount of the tax increment revenues that were attributable to the Full
Development Site for the Fiscal Year in which the Developer acquired the fee title to the Full
Development Site ("Base Year Deductions") (the "Tax Increment Revenues"). The calculation
of the dollar amount of the Tax Increment Revenues to be remitted in each fiscal year to the
Developer shall be on the basis of (A) the one percent (I %) general property taxes, exclusive of
any override taxes, special taxes, ad valorem taxes for general obligation bonded indebtedness or
other special assessments, that are actually paid by the Developer and/or the Developer's
r- successor-in-interest to the ownership of all or any portion of the Full Development Site
\.-. attributable to the development to occur on all or any portion of the Full Development Site, less
4838-7503-74415
9/11/06 ct
Exhibit I
P\Agcrldas\Agtflda AUachmenIS\.\grmls-Amend 2006\09-18-06 Hillwood Final ODA_Goc
- (B) the Pass-through Payments and the Base Year Deductions, less (C) the required deposit to
'-' the Agency's Low and Moderate Income Housing Fund which is presently twenty percent (20%)
of the gross tax increment revenues, with the remainder amount then being disbursed on the basis
of one-half to the Developer for payments pursuant this Note and the other one-half being
retained by the Agency for any of the purposes as may be permitted pursuant to the
Redevelopment Plan.
"-
I".....
(b) All payments of the Tax Increment Revenues shall first be applied for the
payment of (i) any late charges and interest thereon, (ii) accrued and unpaid interest upon the
principal balance of the Note, and (iii) the principal balance of the Note.
(c) The obligation of the Agency to remit payments of the Tax Increment Revenues
shall commence as of the 2007-08 fiscal year for the December 10, 2007, property tax
installment and shall continue thereafter until the earlier of (i) the payment in full of the
Indebtedness, or (ii) April 27, 202 I. In the event that any amounts remain due and payable under
the Note during the 2020-21 Fiscal Year, it shall be the sole responsibility and obligation of the
Developer to assure that payments are remitted by the Developer to the County of San
Bernardino Tax Collector adequately in advance of the termination date of the Redevelopment
Plan to allow for submittal of all necessary documentation to the Agency and the processing by
the Agency of any final remittance of the Tax Increment Revenues to be made by the Agency on
or before April 27, 2021.
(d) Such payments of the Tax Increment Revenues shall be remitted by the Agency to
the Developer within thirty (30) calendar days after the Developer has provided written
documentation reasonably acceptable to the Agency evidencing that the applicable property
taxes on the Full Development Site as of each December 10 and/or April 10 (or any other
delinquency date established by the County for the payment of supplemental property taxes)
have been duly paid in full (i.e. taxing authority acknowledgements of the taxes having been paid
and the amount of the one percent (I %) general property tax). The Agency shall within thirty
(30) calendar days after receipt of the documentation required by this Section, remit the
appropriate payment of the Tax Increment Revenues based upon the method of calculation
thereof to the Developer. Any failure of the Agency to dispute in writing the adequacy of the
documentation as submitted by the Developer within the applicable 30-day period of time, shall
constitute approval of same by the Agency. The Agency shall be obligated to provide written
notice to the Developer within said 30-day period of time as to any inadequacy of any
documentation provided by the Developer to the Agency. Failure of the Agency to remit the
requested payment of the Tax Increment Revenues within ten (10) calendar days after the
expiration of the initial thirty (30)-day period for review of the documentation as submitted by
the Developer, unless notice has been provided by the Agency to the Developer in the manner as
provided above, shall subject the Agency to a three percent (3%) late charge on the amount owed
and interest at the rate of five percent (5%) per annum calculated on the number of days from the
due date of the applicable payment until such amount has been paid to the Developer.
4838-7503.7441.5
9/11/06 cJ Exhibit I
P '^Bcndas\Agenda AtlacI1l1~n15\A"""s.Amend 2006\09_18_06 Hillwood Fill.ll DO...._doc
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(e) It shall be a condition precedent to each payment of the Tax Increment Revenues
hereunder that as of each such Tax Increment Revenues payment due date there has been no
Transfer, assignment, or sale or other conveyance of the Full Development Site or any interest in
the Agreement which is prohibited by the Agreement. In the event that the Developer should
either (i) Transfer any interest in the Agreement in violation of this Agreement at any time prior
to the issuance of a Certificate the Phase I Completion, or (ii) sell all or any portion of the Full
Development Site to a tax exempt entity without such buyer agreeing to make the "in-lieu"
payments referenced in Section 3.08 of the Agreement during the term of this Note, the
obligation of the Agency for any further remittances of the Tax Increment Revenues under this
Note shall immediately cease and terminate as to that portion of the Full Development Site to
which such prohibited Transfer or other sale or conveyance pursuant to item (ii) has occurred.
(I) The right to receive the Indebtedness as provided in this Note is personal to the
Developer and shall remain the right and property of the Developer, not passing to any future
owner of all or any portion of the Full Development Site. Notwithstanding, the Developer at any
time may assign or pledge such right to receive the Indebtedness.
(g) The Developer shall have all rights and remedies against the Agency pursuant to
the laws of the State of California and as further set forth in the Agreement and in this Note. In
the event of any failure by the Agency to remit the timely payments of the Tax Increment
Revenues, the Agency shall be deemed to be a default hereof for which the Developer shall be
entitled, after delivery of notice or otherwise as set forth in this Note, to be reimbursed for all
costs and expenses of the collection of any dollar amount that is then due and payable by the
Agency to the Developer from the Tax Increment Revenues.
4. Prepayment. This Note may be prepaid by the Agency, at any time, in whole or in part,
without premium or penalty, as long as any principal prepayment is accompanied by a payment
of interest accrued to the date of prepayment on the amount prepaid, and any and all late charges
or other amounts then owed by the Agency hereunder.
5. Application of Payments. Each payment under this Note shall be credited first to: (i)
any late charges and interest thereon, (ii) all accrued and unpaid interest, and then to (iii)
Principal then due and payable under this Note.
6. Developer Forl!iveness of Indebtedness. Except for one or more prior Tax Increment
Payments due and owing by the Agency to the Developer under this Note, the outstanding
Principal, all accrued and unpaid interest, late charges and attorneys fees and costs due and
owing under the Note o"n and after April 28, 2021 shall be forever forgiven by the Developer,
and the Agency shall have no further obligation or liability undcr the terms, covenants and
conditions of this Note.
7. Condition Precedent. The Agency shall have no duty or obligation to execute, deliver
or perform under this Note until all conditions precedent provided for in this Note and the
Agreement have been fully performed and satisfied by or for the Developer (or have been
expressly waived in writing by the Agency).
4838.7503.7441.5
9/11/06 ct Exhibit I
P \Agendas\AaetlCla ....nachmenls\Agnnls-....mend 2006\09-18..Q6 Hillwood Final 00.... doc
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8. Notice. Any notice required to be provided in this Note shall be given in writing and
shall be sent (i) for personal delivery by a delivery service that provides a record of the date of
delivery, the individual to whom delivery was made, and the address where delivery was made;
(ii) by first-class certified United States mail, postage prepaid, return receipt requested; or (iii) by
a nationally recognized overnight courier service, marked for next day business delivery. All
notices shall be addressed to the party to whom such notice is to be given at the address stated
below or to such other address as a party may designate by written notice to the other. All
notices shall be deemed effective on the earliest of (a) actual receipt; (b) rejection of delivery; (c)
if sent by certified mail, the second day on which regular United States mail delivery service is
provided after the day of mailing or, if sent by overnight delivery service, on the next day on
which such service makes next-business day deliveries after the day of sending. The address for
the Agency and for the Developer shall be as follows, subject to any written notice of a change
of address by one party to the other:
Address for the Agency:
Redevelopment Agency of the City of San Bernardino
Attention: Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
Fax: (909) 663-2294
With a copy to:
Lewis Brisbois Bisgaard & Smith LLP
650 Hospitality Lane, Suite 600
San Bernardino, California 92408
Attention: Timothy J. Sabo
Fax: (909) 387-1138
'-
Address For the Developer:
HSB 1-215, L.P. and SE 1-215, L.P.
c/o Hillwood/San Bernardino, LLC
Attention: Michelle Kirk and John Magness
105 North Leland Norton Way, Suite 3
San Bernardino, California 92408
Fax: (909) 382-0073
With copy to:
HilIwood Development Company, LLC
Attention: Michele M. Ringnald
5430 LBJ Freeway, Suite 800
Dallas, Texas 75240
Fax: (972) 201-2889
9. Default. Subject to Section 7 of this Note, and any applicable cure period(s) provided for
in this Note and/or in the Agreement~ a default shall occur whenever the Agency (a) fails to pay
to the Developer any sum due under this Note when it becomes due and payable, or (b) breaches
any other covenant, promise or obligation in this Note, the Agreement or any other instrument,
document. and/or agreement, now or hereafter, evidencing, securing, guaranteeing,
,-. hypothecating, relating to, or in connection with, the transaction contemplated in the Agreement
''"- and/or this Note (collectively, a "Default"). Upon the occurrence of a Default, the Developer
4838-7503-7441.5
9J11106ct
Exhibit I
P\Acend&s\Acenik ^1l~hmenls\Agnnls-Amcnd 2006109-18.06 Hillwood FillllJ OOA.doc
,l""""'-
may, at its option, declare this Note (including, without limitation, all principal, all accrued and
unpaid interest, late charges, attorneys' fees and costs) to be immediately due and payable,
regardless of the Maturity Date, subject to the cure periods provided for in this Note and/or the
Agreement (collectively, the "Default Payment Amount"), and the Agency shall immediately
pay to the Developer the Default Payment Amount.
......,
10. Unsecured Promissory Note. This Note is unsecured, and is not secured by any real or
personal property of any nature whatsoever.
11. Modification. This Note may not be modified, amended, waived or extended, changed,
discharged or terminated orally or by any act on the part of the Agency or of the Developer, but
only by an agreement in writing signed by the Agency and the Developer; provided, however,
the Principal shall be increased in accordance with Section 3.09(d) of the Agreement.
12. Headin!!s. The headings of this Note are for purposes of reference only and shall not
limit or otherwise affect the meaning thereof.
13. Interpretation. Common nouns and pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular and plural, as the identity of the person or entity may in the context
reqUIre.
14. Governin!! Law. This Note shall be governed by and construed in accordance with the
laws of the State of California.
'-
15. Judicial Proceedinl!s and Attornevs' Fees. If either party hereto files any action or
brings any action or proceeding against the other arising out of this Note, then as between the
Developer and the Agency, the prevailing party shall be entitled to recover as an element of its
costs of suit, and not as' damages, its reasonable attorneys' fees as fixed by the Court, in such
action or proceeding or in a separate action or proceeding brought to recover such attorneys'
fees. The costs, salary and expenses of the City Attorney for the City and members of his office
in enforcing this Note shall be considered as "attorneys' fees" for purposes of this Section. Any
such action or proceeding must be commenced in the Superior Court for the County of San
Bernardino, San Bernardino District, State of California.
16. Enforcement Costs. All reasonable out-of-pocket costs incurred by the Developer in the
enforcement of this Note shall be added to the amounts due under this Note.
17. Assil!DmeDt. This Note may be assigned by the Developer (subject to the provisions of
Section 3(e) and 3(t) of this Note) and by the Agency (but no such assigrunent shall relieve the
Agency from any of its obligations or liabilities hereunder). The terms, covenants and conditions
of this Note shall be binding upon, and inure to the benefit of, the successors and assigns of the
Developer (subject to the provisions of Section 3(e) and 3(t) of this Note) and of the Agency.
1/1
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4838.7503-7441.5
9/11/06<1
Exhibit I
PV,llendas\Aienda AnachmcntsV,&rmU-Amcnd 2006\09-18-06 Hillwood Fillill DDA doc
....-~
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IN WITNESS WHEREOF, the Agency has executed this Agency Tax Increment
Revenues Promissory Note as of the date first written above.
AGENCY
Redevelopment Agency of the City of San Bernardino
By:
Maggie Pacheco, Executive Director
4838-7503-74415
9/11/06 ct Exhibit I
P\Agc:ndas\Aacnda Anachmc:nu\Agrrru-Amc:nd 2006\09-18.06 Hillwood Final DO... dol;
....-
'.......
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EXHIBIT "J"
WATER LINE EASEMENT
The City requires that the Full Development Site has secondary access to public water from the
City Water Department public water main located on the Shandon Hills Golf Course south of the
Property, The attached Exhibit "J-l" shows the general location of the existing water main and
the proposed water line from the Full Development Site attaching into such public water main,
The precise location of such new water line and the precise area of the easement and any
temporary construction easement will be determined by the Developer, the Agency and the City
Water Department Such easement shall be subject to all rights of review and approval as may
be granted to the Golf Course Operator pursuant to the Lease and Operating Agreement as
further described in Section 3.0l(cc) of the Agreement
4838.7503-7441.5
9/11/06 cl
Exhibit J
P ,^sendas\A.senda Anai;hmmls\Agrrrts-A.mend 2006\09-18.06 HiIl....ood Final DDA do("
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48,8-7503-74414
9/12/06 jmm
Exhibit J-]
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EXHIBIT "K"
........
CITY ENGINEER LETTER
September 18, 2006
Ms. Maggie Pacheco
Executive Director
Economic Development Agency
of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 9240 I
John M. Magness
HillwoodlSan Bernardino, LLC
105 N. Leland Norton Way, Suite 3
San Bernardino, California 92408
Dear Ms. Pacheco and Mr. Magness:
---
This is to confirm to you certain traffic impact fees that are payable to the City of San
Bernardino based upon the EIR and Traffic Impact Analysis ("TIA") prepared by the Economic
Development Agency of the City of San Bernardino ("EDA") for the proposed Hillwood project
on the former Culligan site in the State College Redevelopment Project Area in north San
Bernardino, the general location of which is shown on the attached Exhibit "A" (the "Property").
-
As you are aware, the City has now adopted a Development Impact Fee ("DIF") ordinance to
replace the need for future TIAs for new development projects that would otherwise have met
the threshold requirement to conduct such a TIA. The EDA has negotiated a provision with
Hillwood for the payment of $3,000,000 by Hillwood towards the anticipated shortfall for the
full funding of the proposed University Parkway Interchange Improvements for the southbound
1-215 on-ramp. This $3,000,000 represents an amount that is both well in excess of any "fair
share" contribution identified in the EIR and the accompanying TIA and is greater than the
amount that otherwise would have been paid by Hillwood to the City pursuant to the DIF
ordinance. Additionally, the EDA has presently budgeted in the 2006-2007 Annual Budget to
fund not to exceed an additional $3,000,000 of the costs of the Interchange Improvements
through EDA funds which may include proceeds of EDA tax allocation bond proceeds subject to
subsequent actions by the Mayor and Common Council and the Community Developer
Commission. This second $3,000,000 amount is intended to fund further costs of the
Interchange Improvements that benefit the State College Project Area, and assuming that
Hillwood remits the required repayment when requested by the ED A, the EDA may apply this
"'-
4838-7503-7441.5
9/11/06 cl Exhibit K
P-lAgenlWilAgenda Anachltt'llslAgrrnl3-Amcnd 2006\09.18.06 Hlllwood Final ODAdox
..-
"-' second $3,000,000 amount for any excess development fees that may be due and payable by any
development benefited by the Interchange Improvements.
In addition to the payment as described above, Hillwood will also have the performance
obligation to undertake and complete the following off-site public roadway improvements both
adjacent to the Property and in the general vicinity of the Property, in addition to typical storm
drainage and retention basin improvements, water and sewer and other necessary utility
installations:
curb cuts and driveway returns, sidewalk and curb and gutter adjacent to the
Property;
landscaping and street lights adj acent to the Property;
a traffic signal at the main entrance to the Property from University Parkway; and
all on-site circulation, fire access route, utilities and storm drain system from
University Parkway through the Property to the basin located south of the
Property.
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Therefore, upon payment by Hillwood of the $3,000,000 amount to the EDA, the Public Works
Division will deem all traffic mitigation fees to have been paid for the proposed development of
the Property which will be used primarily for industrial, warehouse or distribution facilities
estimated to consist of up to approximately 2,000,000 square feet of ground floor building space.
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Sincerely,
Mark A. Lancaster
City Engineer
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4838-7503-7441.5
9/l1/06 ct
Exhibit K
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Exhibit "A"
Property
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EXHIBIT "L"
REIMBURSEMENT AMOUNT
A. Upon completion of the Project in accordance with the Agreement, the original principal
amount of the Promissory Note shall be the sum of the following:
I. $970,000 (the Property FMV; the Property to be dedicated to the City subject to
acceptance in an improved condition by the City Engineer).
2. $1,400,000 (the excess of the Developer's $3,000,000 payment under Section
3.09(a) which exceeds the Developer Fair Share Contribution).
3. Actual costs of constructing and installing the basin improvements on the
Property, construction of inlet and outflow structures and earth import and export and grading
within the ultimate basin configuration, the storm water detention basin improvements on the
Property and the construction of the storm water collection system on the Full Development Site
and the Exchange Tract in an amount not to exceed $1,260,000, with the highest principal
amount of the Promissory Note not to exceed $3,630,000; (actual costs subject to verification by
the Agency; system and improvements to be dedicated to the City subject to acceptance by the
City Engineer).
"<......
B. As further provided in Section 3.09(d) of the Agreement, the Developer shall provide the
Agency with back-up information including invoices and cancelled checks to demonstrate that
the payments for the items listed in Section A above have been paid by or on behalf of the
Developer. As of the date of execution of the Promissory Note, the Reimbursement Amount and
thus the initial principal balance of the Promissory Note shall be that dollar amount determined
in the manner as set forth in Section A of this Exhibit "L". Interest shall accrue on the
Reimbursement Amount as of the date of the execution and delivery to the Developer of the
Promissory Note. Only those portions of the above set forth public improvement items listed in
Section A which are offered for dedication to the City and accepted by the City by and through
the City Engineer after the date of the Promissory Note shall qualify for inclusion within the
Reimbursement Amount, increasing the principal amount of the Promissory Note, subject to
approval of all such additional costs and the acceptance of the offer of dedication by the City
Engineer.
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4838.7503.7441.5
9/11/06 cl Exhibit L
P.\Allendas\Allcnda Actachrnents\Aglms-Amend 2006\09-18-06 Hillwood Final DDAdot
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO CONSENTING TO THE SALE OF THE AGENCY
PROPERTY AS IDENTIFIED IN THE 2006 DISPOSITION AND
DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND HSB 1-215, A CALIFORNIA LIMITED PARTNERSHIP
AND SE 1-215, A CALIFORNIA LIMITED PARTNERSHIP
(COLLECTIVELY REFERRED TO AS "HILLWOOD") (AGENCY
PROPERTY LOCATED SOUTH OF THE HILL WOOD PROPERTY AND
WEST OF THE 1-215 FREEWAY - 10.53 ACRES IN THE CITY OF SAN
BERNARDINO) ("AGENCY PROPERTY") AND ACCEPTING THE
COMMUNITY DEVELOPMENT COMMISSION'S CERTAIN FINDINGS
RELATED TO THE DEVELOPMENT OF THE PROPOSED PROJECT
WHEREAS, the City of San Bernardino, California (the "City"), is a municipal corporation
and charter city, duly organized and existing pursuant to the provisions of the constitution of the
13 State of California; and
14
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a
15 public body, corporate and politic existing under the laws of the State of California, Health and
16 Safety Code 33101, and is charged with the mission of redeveloping blighted and underutilized
17 land: and
18 WHEREAS, the Agency is the current owner of that certain real property consisting of
19 approximately 10.53 acres (APN: 0148-011-39 Al'iD APN: 0266-073-08) located south of the
20 Hillwood property and west of 1-215 Freeway, (the "Agency Property") in the State College
21 Redevelopment Project Area ("Project Area"); and
WHEREAS, an updated MAl appraisal of the Agency Property has been completed by
Villegas Appraisal Company (the "Appraisal") and said Appraisal has confirmed the fair market
value of the Property to be Nine Hundred Seventy Thousand Dollars ($970,000); and
WHEREAS, the Agency is entering into a 2006 Disposition and Development Agreement
(the "DDA") with HSB 1-215, a California Limited Partnership and SE 1-215, a California Limited
Partnership (collectively referred to as "Hillwood") pursuant to which the Agency will transfer the
Agency Property to Hillwood in exchange for property which Hillwood owns along the south side
P,'Aii:elldasIRelolulionsIResolulion.l\2006109.IS-06I1illwood MCC Rl'so edoe
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I of University Parkway ("'Exchange Tract"); and
2 WHEREAS, the fair market value of the Exchange Tract is in excess of that of the Agency
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3 Property; and
4 WHEREAS, the Exchange Tract IS necessary for the University Parkway/BNSF track
5 crossing improvement; and
6 WHEREAS, the DDA provides for the development of the Agency Property into a flood
7 control retention basin, and adjacent property owned by the Hillwood to be developed into
8 approximately six (6) warehouse/distribution facilities totaling approximately 2,000,000 square feet
9 (the,"Project"); and
10 WHEREAS, the Agency has prepared and'published a notice of joint public hearing in The
II San Bernardino County Sun Newspaper on September 4 and II, 2006, regarding the consideration
12 and approval of the DDA and also the certification of a Final Environmental Impact Report
13 ("FEIR") related to the Project in accordance with California Environmental Quality Act ("CEQA");
14 and
_.
IS WHEREAS, pursuant to Health and Safety Code Section 33433, the Agency may transfer
16 the Agency Property to the Hillwood subject to the Mayor and Common Council ("Council ") and
17 Community Development Commission ("Commission") adopting a Resolution authorizing the
18 Agency to transfer the Agency Property in light of the findings set forth herein, pursuant to Health
19 and Safety Code Section 33433; and
20
WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety
21 Code Section 33433 that describes the salient points of the DDA and identifies the cost of the DDA
22 to the Agency; and
23
WHEREAS, the Agency is the "lead agency" for the Project, under CEQA, California
24 Public Resources Code Sections 21000, et~, in accordance with Public Resources Code Section
25 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and
26
WHEREAS, the FEIR was prepared with respect to the Project in accordance with the
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27 provisions of CEQA and the CEQA Guidelines developed thereunder and the Commission has
28 concurrently, with the approval of the DDA, certified the FEIR; and
2
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1
WHEREAS, it is appropriate for the Council to take action with respect to the disposition of
2 the Agency Property to the Hillwood by the Agency as set forth in the DDA.
3 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS
5 FOLLOWS:
6
On September 18, 2006, the Council conducted a full and fair joint public
Section 1.
7 hearing with the Commission, as the governing board of the Agency, relating to the disposition of
8 the Agency Property from the Agency to Hillwood and the development thereof pursuant to the
9 DDA. The minutes of the City Clerk for the September 18, 2006 meeting of the Council shall
10 include a record of all communication and testimony submitted to the Council by interested persons
11 relating to the public hearing and the approval of the DDA and the adoption of the Certification of
12 the FEIR.
Section 2.
The Council hereby receives and approves the 33433 Report and the other
written materials submitted to the Council at the meeting at which this Resolution is adopted. The
33433 Report contains information required under Health and Safety Code Section 33433.
Section 3.
This Resolution is adopted in satisfaction of the provisions of Health and
Safety Code Section 33433 relating to the disposition and the transfer of the Agency Property by the
Agency to Hillwood on the terms and conditions set forth in the DDA. A copy of the DDA in the
form submitted at this joint public hearing is on file with the City Clerk. The Council hereby finds
and determines that the disposition and redevelopment of the Agency Property by Hillwood, in
accordance with the DDA, is consistent with the Project Area Redevelopment Plan, the Five Year
Implementation Plan and the City's General Plan and the Council accepts the Commission
Certification of the FEIR for the Project. The Council hereby consents to the sale of the Agency
24 Property to Hillwood in accordance with the terms and provisions of the DDA and further
25 authorizes the Agency to enter into said DDA.
26 Section 4.
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The Resolution shall become effective immediately upon its adoption.
3
r:\Agtnd3s\Rt5GlulionsIResolut;olls\2006\09.11l-06 Hillwood !\tee Reso edoe
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10
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO CONSENTING TO THE SALE OF THE AGENCY
PROPERTY AS IDENTIFIED IN THE 2006 DISPOSITION AND
DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") AND HSB 1-215, A CALIFORNIA LIMITED PARTNERSHIP
AND SE 1-215, A CALIFORNIA LIMITED PARTNERSHIP
(COLLECTIVELY REFERRED TO AS "HILLWOOD") (AGENCY
PROPERTY LOCATED SOUTH OF THE HlLLWOOD PROPERTY AND
WEST OF THE 1-215 FREEWAY - 10.53 ACRES IN THE CITY OF SAN
BERNARDINO) ("AGENCY PROPERTY") AND ACCEPTING THE
COMMUNITY DEVELOPMENT COMMISSION'S CERTAIN FINDINGS
RELATED TO THE DEVELOPMENT OF THE PROPOSED PROJECT
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting
11 thereof, held on the day of , 2006, by the following vote to wit:
12 Council Members: Aves Navs Abstain Absent
I3 ESTRADA
'"""-,, 14 BAXTER
15 VACANT
16 DERRY
17 KELLEY
18 JOHNSON
19 MC CAMMACK
20
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21
Rachel G. Clark, City Clerk
22 The foregoing resolution is hereby approved this
day of
.2006.
23
24
25
Patrick J. Morris, Mayor
City of San Bernardino
26 Approved as to Form:
1-. &
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P"v\f:tndas\Resolulions\RnolutioM\2006\09-1lI-06 HiI1wood MCC ResD Cdoc