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HomeMy WebLinkAboutR49-Economic Development Agency I P MAYOR & COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION MEETING BACKUP MEETING DATE: 11/06/06 DEPUTY: Linda Sutherland ITEM NO. STATUS 33 Sets Dub lie hearin!:! for 11/20/06 35 Continued to 11/20/06 44 Continued to 05121/07 R49 Continued to 11 /20/06 R50 Continued to 11/20/06 CITY OF SAN BERNARDINO ECONOMIC DEVELOPMENT AGENCY .- DATE: Sepkonber7,2006 SUBJECf: Home D.pot, Ine. Redevelopment Project Study and EKclaslve RIEhl to N.cotlat. AcreemeDt (North ArdeD Guthrie HOlD. Depot COll1ll1erelal Project) (lVDA Redevelopmeat Project Ar.a) FROM: Maggie Pacheco Executive Director SvnODS" of Previous CommlsllonlCouDfiVCommlttee Artion(sl: On July 24, 2006, the Mayor aud Common Couoeil and the Commuoity Development Commission of the City of San Bernardino approved a HUD Section 108 Loan Contrac:t with HUD and authorized the City to make said funds available to the Asency for the purcbase: of the remaining private property in the North Arden Guthrie Area. On August 24, 2006, Redevelopment Commillee Members Estrada, 10hmon aod Baxter unanimously voted to recommend that the Community Development Commission consider this action for approva" Recommended MotionC,): '-. (Community DeveloDJDent Commission) Resolution of the Community Development Commilsion of the City of San Bernardino approving aud authorizing the Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency'') to execute the Redevelopment Project Study and Exclusive Rigbtto Negotiate Agreement ("Agreemen1j with Home Depot, Inc. ("Developer") - IVDA Redevelopment Project Area Contact Person(s): Manie Pacheco Phone: (909) 663-1044 Project Area(s): IVDA Redevelopment Project Area Ward(s): 7 Supporting Data Allached: 0 Staff Report 0 Resolution{s) Ii!I Agreement(s)/Contrac:t(s) iii Map(s) 0 Letters FUNDING REQUIREMENTS: $ N/A Source: N/A " I jt}'- SIGNATURE: ~ ~. <It.<; ,,~ 7_/~1f; Maggie Paebeeo, Executive Director Barbara Lindseth, Admin. Servic:es Director Commlulon/CounellNote" ~:~~IY}J(j; t:!rl~gtj :Pl? Budget Authority: N/A ,- '..... P:\Ap"'\(:OftIIl\ Dtw ~iCDC1Ol:l6\Q9.11.o6'" Ocpol.IK. RcdndI,.... PnljIclS&llll)'''' U}oI SR.dao; COMMISSION MEETING AGENDA MeetJag Dale: Agenda lIem Number: 'f( L/q 1/ /j{p- () ft; - ECONOMIC DEVELOPMENT AGENCY '- STAFF REPORT HOME DEPOT, INC. REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (NORTH ARDEN GUTHRIE HOME DEPOT COMMERCIAL PROJECT) (IVDA REDEVELOPMENT PROJECT AREA) BACKGROUND: The Redevelopment Agency of the City of San Bernardino ("Agency") is the owner of forty-seven (47) vacant lots ("Agency Property") in the area bounded by Highland Avenue, Arden Avenue, 20th Street and Guthrie Avenue in the area commonly known as the North Arden Guthrie Area. Twenty- five (25) parcels remain in private ownership ("Private Property") of which twenty-three (23) are improved with a four-plex structure. (See attached map). Arden Guthrie has been a problematic area for decades and one, which has deteriorated into an inner city slum associated with high crime, vandalism and all the problems resulting from high-density apartment dwellings and absentee landlords. For more than a decade, considerable sums of money and resources have been expended in the North Arden Guthrie Area. It is estimated that approximately $10 million has been spent to date and yet, the area still remains severely blighted and associated with all the accompanying social ills. '.- Recognizing the need for the Agency to complete the acquisition of the remaining Private Property, combine it with the AgeI1cy Property (the "Arden Guthrie Site"), demolish and clear the remaining four-plexes and make it available for productive development, on June of 2003, the Mayor and Common Council ("Council") authorized the application submittal for a HUD Section 108 Loan in the amount of $7.5 million. After much detailed work by Staff to tailor the loan to this specific area, without identification of a specific project or development entity upfront, Staff submitted the application to HUD, which was finally approved by HUD in May 2006. In July 2006, the Council approved the HUD Loan Contract with HUD and authorized the City to loan the funds to the Agency for the acquisition of the Private Property. In July 2006, the Community Development Commission ("Commission") authorized the Agency to proceed with the purchase of the Private Property and on August 17, 2006, Villegas Appraisal Company received written notification to proceed with appraising the Private Property. Since the renewed activity in 2003 by the Agency, the Commission, and the Council, there has been new interest in the Arden Guthrie Site by developers and a few proposals and suggestions have since been received by the Agency including hotels, government buildings, sports complexes, and shopping centers that have all been discussed and evaluated by City/Agency Staff. Unfortunately, those proposals that have sought to incorporate the soccer complex into the development, which would have been a tremendous boost for the tourism industry in San Bernardino, have lacked the financial wherewithal to perform. '''-.., P:\Agendas\Comm Dcv Commission\CDC 2006\09-18-06 Home Depot, Inc. Redevelopment Project StLldy & ERN SR.doc COMMISSION MEETING AGENDA Meeting Date: 09/18/2006 Agenda Item Number: R.3~ Economic Development Agency Staff Report Home Depot. Inc. - Redevelopment Project Study & ERN Page 2 '..... CURRENT ISSUE: Three (3) months ago, the Agency was approached by Home Depot, Inc., a Delaware corporation (the "Developer") together with Mr. Scott Beard and Mr. Mark Sandoval (the "Co-Developer") and informed of the Developer's desire to acquire the Arden Guthrie Site and utilize eleven (I I) acres for the purpose of building a new 139,000 square foot Home Depot to take care of the burgeoning market in the east. Home Depot has no intention of vacating either of their other two (2) stores in San Bernardino and are therefore desirous of entering into a Redevelopment Project Study and Exclusive Right to Negotiate Agreement ("Agreement") with the Agency for the purpose of studying this development. The Developer will also, but is under no obligation to, negotiate with the Co-Developer for the development of the remaining six (6) acres, which would be improved with the soccer complex in mind, to include youth oriented retail, and restaurants with access to the soccer fields immediately to the south. The Developer would guarantee development of the six (6) acres or the entire Arden Guthrie Site. This would considerably enhance the area that is visited by tens of thousands of visitors to San Bernardino on an annual basis. Salient points of the Agreement include the following: . The Developer will develop the entire Arden Guthrie Site with a quality development to the satisfaction of the City and the Agency, with an estimated value of not less than $17 million. . The Developer intends to assist the City in a financial manner to help support the soccer fields, either through naming rights, sponsorships or some other manner. '-. . The Developer agrees to pay the greater of fair market value or $5,800,000 for the Arden Guthrie Site, whichever is greater. The Developer will also have to agree to comply with certain covenants imposed by HUD related to the Section 108 Loan. The Developer will pay the sum of $58,000 to the Agency by way of a non-refundable deposit, which will be applied against the purchase price, should that event occur. . The Agreement is for a period of twenty-four (24) months with a six (6) month extension to give sufficient time for the Environmental Impact Report to be completed and for a necessary zone change, from PCR (Public/Commercial Recreation) to CG-1 (Commercial General), to take place. The Agency will coordinate the California Environmental Quality Act (CEQA) process at the cost of the Developer. . All other project study and third (3m) party costs are at the sole cost of the Developer. . The ultimate goal of this Agreement is the execution of a Disposition and Development Agreement between the Agency and the Developer. ENVIRONMENT AL IMPACT: The Study Agreement is categorized as Statutory Exemption under CEQA per public Resource Code Sections 21102 and 21150. ',-- P.\AgendasIComm De~ Conunission\COC 2006\09.18.06 Home Depot. IIlC Redevelopment Project Study & ERN SRdoc COMMISSION MEETING AGENDA Meeting Date: 09/18/2006 Agenda Item Number: Il..'h" Economic Development Agency Staff Report Home Depot, Inc, - Redevelopment Project Study & ERN Page 3 ',- FISCAL IMPACT: None at this time. RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. .~ l /"1 . / / ,} j v {'-I.-- ~{L..c /<-- aggie Pacheco, Executive Director '- -- '- P:\Ai;cndas\Comrn Dev Commission\COC 2006\09.18.06 Home Depot, Il'IC. RedeveJopmcnl Project Study 4: ERN SR.doc COMMISSION MEETING AGENDA Meeting Date: 09/1812006 Agenda Item Nnmber: -RJA. 1 '- 2 3 4 5 6 7 8 9 "........... 22 23 24 25 26 ,._~' '- 27 28 RESOLUTION NO. RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT ("AGREEMENT") WITH HOME DEPOT, INC. ("DEVELOPER") - IVDA REDEVELOPMENT PROJECT AREA WHEREAS, the Agency owns certain property within the Inland Valley Development Agency (IVDA) Redevelopment Project Area (the "Project Area") which together with the 10 privately owned property as generally depicted in Exhibit "A", attached to the Agreement, 11 comprises (the "Arden Guthrie Site"); and 12 WHEREAS, the Agency and the Developer are interested in exploring the development 13 feasibility of the Arden Guthrie Site so as to foster the community economic development goals 14 and objectives of the City of San Bernardino (the "City") as it relates to the Redevelopment Plan 15 for the Project Area; and 16 WHEREAS, the Developer is qualified to assist the Agency to undertake the development 17 feasibility for a coordinated and economically sustainable redevelopment project on the Arden 18 Guthrie Site, which will require specific study, evaluation and planning by the City and the 19 Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; 20 and 21 WHEREAS, in accordance with the provisions of the California Environmental Quality Act ("CEQA"), a Redevelopment Project Study and Exclusive Right to Negotiate Agreement (the "Agreement") is exempt from the provisions ofCEQA. NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOL VB, DETERMINE AND ORDER, AS FOLLOWS: Section 1. The Community Development Commission ("Commission") hereby approves the Agreement by and between the Agency and the Developer in the form as presented at P:\Agendas\Rcsolulions\Resolulions\2006\09-18-06 Home Depol, Inc. CDC Rcso.OOc I ...... .........-" "- 1 the meeting of the Commission at which this Resolution is adopted and hereby authorizes the 2 Executive Director of the Agency to execute the Agreement on behalf of the Agency together with 3 such technical and conforming changes as recommended by the Executive Director and approved 4 by the Agency Counsel. The Commission hereby finds that the Agreement is exempt from CEQA. The Resolution shall become effective immediately upon its adoption. 5 Section 2. 6 Section 3. 7 //1 8 //1 9 /1/ 10 //1 11 //1 12 /1/ 13 /1/ 14 /1/ 15 /1/ 16 /1/ 17 /1/ 18 /1/ 19 /1/ 20 /1/ 21 /1/ 22 /1/ 23 /1/ 24 //1 25 //1 26 /1/ 27 //1 28 P:\Agendas\Resolutions\RcsolutionsIlOO6\09.IS-06 Home Depot, Inc, CDC Reso.doc 2 1 .....~,-, 2 3 4 5 6 7 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT ("AGREEMENT") WITH HOME DEPOT, INC. ("DEVELOPER") - IVDA REDEVELOPMENT PROJECT AREA I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community Development Commission of the City of San Bernardino at a meeting 8 thereof, held on the day of , 2006, by the following vote to wit: 9 Commission Members: Aves Nays Abstain Absent 10 ESTRADA 11 BAXTER 12 VACANT 13 DERRY 14 KELLEY ~....~ . 15 JOHNSON 16 MC CAMMACK 17 18 20 The foregoing resolution is hereby approved this 21 22 19 Secretary day of ,2006. Patrick J. Morris, Chairperson Community Development Commission of the City of San Bernardino 23 24 25 Approved as to Form and Legal Content: --,- 26 27 28 By: l~ Agency' 0 sel PIAgendas\Resolulions\Resolulions\2006\09-1S.06 Home Depot, Inc. COC Reso,doc 3 - ... REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REDEVELOPMENT PROJECT STUDY AND EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (ARDEN GUTHRIE HOME DEPOT COMMERCIAL PROJECT) This Redevelopment Project Study and Exclusive Right to Negotiate Agreement is dated as of September 18, 2006 (this "Agreement"), and is entered into by and among Home Depot, Inc., a Delaware corporation (the "Developer"), and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"). The Developer intends to act in cooperation with Mr. Scott C. Beard on behalf of Gerald W. Beard Realty, Inc. and Mr. Mark Sandoval (collectively, both individuals are collectively referred to herein as the "Co-Developer"). The Co-Developer is not a party to this Agreement nor is it an intended third party beneficiary under this Agreement. RECITALS A. The Agency desires to encourage and effectuate the redevelopment of certain real property located within the area commonly referred to as the North Arden Guthrie Area of the City of San Bernardino and comprising approximately 16.5 acres, generally bounded by Highland Avenue, Arden Avenue, 20th Street and Guthrie Avenue (the "Arden Guthrie Site"), that is depicted on the "Study Area Map" attached hereto as Exhibit "A" which illustrates the "Arden Guthrie Site" for purposes of this Agreement; and B. The Arden Guthrie Site lies within the Redevelopment Project Area of the Inland Valley Development Agency (the "Project Area"), and is subject to the Project Area's governing redevelopment plan (the "Redevelopment Plan") and its Rules for Owner Participation as adopted by the Inland Valley Development Agency ("IVDA"); and C. The City of San Bernardino (the "City") is the fee owner of those certain soccer fields that were improved with funds made available by the Agency (the "City Soccer Fields") consisting of approximately fifty-two (52) acres of improved land. The City Soccer Fields are located at the northeast comer of Pacific Street and Arden Avenue (as depicted on Exhibit "A" attached hereto), and are located adjacent to the Arden Guthrie Site; and D. The Developer intends to explore opportunities to assist the City in some financial manner to provide support to the City Soccer Fields whether through the payment of naming rights, providing sponsorship or such other means as the City and the Developer may agree. Such provisions shall be negotiated by the Agency with the Developer and included within the Project DDA, as hereinafter defined; and J_'" E. The Developer and the Co-Developer intend to jointly develop the Arden Guthrie Site pursuant to a separate agreement by and between said Developer and Co-Developer. However, both this Agreement and the Project DDA, as hereinafter defined, shall include only the Developer as a party. The Co-Developer shall have no rights or remedies against the Agency under either this Agreement or the Project DDA; and '"--,, 4848-5191-7313.1 1 P:\Agcndas\Agcndi Auachmcnts\Agrmls-Amend 2006\09-18.06 Home Depol- Final NOrlll Arden Guthrie ERN.doc - F. The Agency and private persons or entities are the fee owners of those certain parcels of real property consisting of approximately 16.5 acres, in the aggregate which taken together make up '- the Arden Guthrie Site. The Arden Guthrie Site is located at the southwest quadrant of the point of intersection of Highland Avenue, Highway 30, and Arden Avenue. For purposes of this Agreement, those parcels of the Arden Guthrie Site that are owned in fee by the Agency shall collectively be referred to as the "Agency Property," and those parcels of the Arden Guthrie Site that are owned in fee by persons or entities other than the Agency shall collectively be referred to as the "Private Property"; and G. The area within the Study Area Map consists of the Arden Guthrie Site, which is generally underutilized, in poor physical condition, and contributes to the blight that has existed within the Project Area since the date ofthe adoption of the Redevelopment Plan to this date; and H. The project concept plan (defined herein as the "Project Concept Plan") involves the Arden Guthrie Site, and contemplates and proposes the purchase by the Developer from the Agency of the Agency Property. The Agency and the Developer will work closely together to determine if the most cost-efficient result will be obtained through a negotiated purchase of the Private Property by the Developer or the acquisition by the Agency. The Agency and the Developer will work together in good faith to acquire the Private Property. In the event that the cost of the acquisition of the Private Property makes proceeding with the project undesirable for either party, either party may terminate this Agreement as further provided in Section l.c.(2). These acquisitions would be for development by the Developer that would complement the build-out of the Project. The Developer will negotiate with the Agency for the Agency Property, if an Agreement is reached between Developer and Agency, it may be documented by a Project Disposition and Development Agreement (the "Project DDA"). The '-... Project Concept Plan contemplates a commercial and retail center with a Home Depot store of approximately 139,000 square feet as the major anchor tenant and such other complimentary retail and commercial uses including sit-down restaurants; and 1. The Arden Guthrie Site is situated within the Project Area, a joint powers authority, which was formed pursuant to Health and Safety Code Sections 33492.10, et seq., as a local redevelopment authority under the federal military base reuse laws for the purpose of assisting in the conversion and civilian reuse of the former Norton Air Force Base and the elimination and prevention of blight affecting other lands within a three (3) mile radius of the boundaries of the former Norton Air Force Base; and 1. The NDA, the City and the Agency have entered into an agreement entitled the "2003 Redevelopment Cooperation Agreement," dated as of October 8, 2003 (the "Redevelopment Cooperation Agreement"), pursuant to which the NDA has delegated to the Agency the right, power and authority to act for and on behalf of the NDA for the purposes of exercising the redevelopment powers of the NDA within a portion of the Project Area as designated in Exhibit "A" attached hereto (the "Agency Implementation Area"); and K. The Agency Implementation Area includes the Arden Guthrie Site and the Agency intends to initiate additional studies and proposals to address a number of issues of community concern in the Agency Implementation Area relating to the elimination and prevention of the spread of blight .- from the Agency Implementation Area; and _. 4848-5191-7313.1 2 P:\AgcndaslAgcnda AlIachmcnls\Agrmts-Amend 2006\09-18-06 Home Dqrol - Final North Arden Guthrie ERN.dol< - 1. The Agency is entering into this Agreement, without limitation, to facilitate the assembly of the Private Property with the Agency Property into developable parcels of land so as to ,-,,, foster the community economic development goals and objectives of the Agency and the City, including the elimination and the spreading of blight, as the same relates to the Project Area, and the Agency has designated the area to be included for such study purposes to be properties within the perimeters of the Arden Guthrie Site. The Developer has represented to the Agency as an inducement for the obtaining of this Agreement from the Agency, that, based upon the facts as presently known to the Developer, Developer intends to pay the greater of the appraised fair market value or $5,800,000 for the entire 16.5 acres that comprise the Arden Guthrie Site, all subject to the final terms and conditions of the Project DDA, if approved by the Agency; and M. In connection with the preparation of the Project DDA and prior to consideration of the approval of such Project DDA, the Agency will prepare and circulate an initial study (the "Initial Study") in accordance with the California Environmental Quality Act of 1970, as amended ("CEQA"); and N. The Agency was instrumental in receiving from the United States Department of Housing and Urban Development ("HUD") a proposed $7,500,000 HOD Section 108 Loan Contract (the "108 Loan") that will be used in part to acquire the remaining Private Property within the Arden Guthrie Site. The I 08 Loan will require the City and the Agency to pledge certain assets and funds as additional collateral for the 1 08 Loan, and the 1 08 Loan will further require any private party acting as the developer to enter into such agreements that will be subject to review and approval by HOD wherein such developer would enter into a binding and enforceable (i) covenant as to the minimum assessed valuation of the completed private development and (ii) operating covenant requiring the .., businesses to be located therein to remain in operation for a minimum number of years which obligation shall be secured in part with a letter of credit in form and content acceptable to HUD and such other satisfactory personal and/or corporate guaranties as may be required by HUD; and O. Based upon information furnished by the Developer to the Agency together with further investigations conducted by the Agency, the Developer is qualified to assist the Agency to undertake the study of and plans for a coordinated and economically sustainable redevelopment project in the Project Area, including the Arden Guthrie Site, which will require further specific study, evaluation and planning by the City and Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; and P. The Developer and the Agency believe it is appropriate for the Agency, in consultation with the Developer, to review by agency staff (the "Agency Staff') those studies, reports and investigations conducted by the Developer as the Project Concept Plan Study costs (collectively, the "Project Concept Plan Study Costs") as part of a program for the study of feasible redevelopment programs for the Arden Guthrie Site, subject to the terms and conditions as set forth below. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY AGREE, AS FOLLOWS: I. The Negotiation Period and the Term of Agreement; Non-Refundable Deposit. a. The rights and duties of the parties established by this Agreement shall commence following the approval of this Agreement by the governing body of the Agency after such time as this 4848-5191-7313.1 3 P:\Agendas\Agenda AlIaehmcnls\Agrmls-Amcnd 2006\09.18-06 Home Depot - Filllll North Arden uuthric ERN.doc - Agreement has been fully executed by the parties within the period of time authorized in Section 17 (such date being the "Effective Date"). This Agreement will continue in effect until a date which is '-~ twenty-four (24) months from the Effective Date unless such date shall have been first extended as authorized under Section l.b.(2) or this Agreement is otherwise terminated as provided in Section l.b. Such time period during which this Agreement shall be in effect (including any extensions of time approved by the Agency) is referred to as the "Negotiation Period". b. This Agreement shall automatically terminate, without further notice or action, and be of no further force or effect twenty-four (24) months following the Effective Date, unless prior to that time: (I) the parties execute the Project DDA, as described below, which will include, without limitation, other relevant community redevelopment covenants acceptable to the Agency and such other terms and conditions mutually acceptable to the parties, in which case this Agreement shall terminate on the date that the Project DDA becomes effective; or (2) the parties each agree to extend the term of this Agreement in writing to a specific date not later than six (6) months after the scheduled termination date, subject to the Agency Executive Director first making a finding through reasonable discretion that satisfactory progress is being made to complete the Project DDA as set forth in Section 3. c. This Agreement can be terminated prior to the twenty-four (24) months following the Effective Date only if: '-. (I) the Executive Director determines through the exercise of reasonable discretion that either I) the Project Concept Plan and the other financial feasibility information or 2) the business plan to be submitted by the Developer to the Executive Director within ninety (90) days from the Effective Date of this Agreement as further provided in Section 3.e.(A) is not satisfactory to warrant the continuation of discussions for a Project DDA. If the Executive Director makes this determination, the Executive Director shall have the right to terminate this Agreement immediately upon (i) the facsimile transmission by the Executive Director of written notice of termination to the Developer, or (ii) upon receipt of written notice of termination through other means from the Executive Director to the Developer; or (2) either party determines in their sole and absolute discretion that the costs of acquiring the Private Property, or the inability to legally proceed with the acquisition of the Private Property due to the possible approval of Proposition 90 on the November 7, 2006, general election, render the Private Property acquisition infeasible or undesirable, as determined by either party, to proceed any further with the acquisition thereof; either party may deliver a notice of termination to the other party which notice oftermination shall be effective upon receipt thereof by the other party; or (3) a party terminates this Agreement as provided under Section 2.c., Section 20 or Section 21, as applicable. d. The Developer has delivered to the Agency a check in the amount of $58,000 which ,- shall be deemed to be non-refundable deposit under all circumstances whether or not this Agreement is _ terminated in the manner as provided in section l.b. above and regardless of whether a final Project DDA is ever approved and executed by the Agency. The Developer acknowledges that the payment of the $58,000 deposit shall be received by the Agency as partial consideration for the Agency having 4848-5\91-73\3.\ 4 P:\Agcndas'IAgcnda Attachmcnts\Agrmts-Amend 2006\09.18-06 Home Depot. Final North Arden GllIhrie ERN.doc: - '- been precluded from offering the properties owned by the Agency and which are identified herein as . the Agency Property to other prospective purchasers and developers. Such $58,000 deposit shall be applied towards the purchase price of the Agency Property as may be provided in the Project DDA if it is approved by the governing body ofthe Agency. 2. Developer Acknowledgments. a. The Developer hereby acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the Agency or an acceptance by the Agency of any offer or proposal from the Developer to convey any interest in the Agency Property or the Private Property to the Developer. Any studies relating to the Arden Guthrie Site, the Agency Property or the Private Property, and the Project Concept Plan that may hereafter be undertaken by the Developer, in its sole discretion, shall be the sole responsibility of the Developer and shall not be deemed to be undertaken for the benefit of the Agency or the City. _ b. The qualifications and identity of the Developer are of particular concern to the Agency. The Agency has relied on these qualifica~ions and identity in entering into this Agreement with the Developer. During the term of this Agreement, no voluntary or involuntary successor-in- interest of the Developer shall acquire any right or power under this Agreement. The Developer shall not assign all or any part of this Agreement or any rights hereunder, without the prior written approval of the Agency Executive Director (for purposes hereof the term "Agency Executive Director" shall mean the "Agency Executive Director" or such other title for the person who is then acting as the chief executive staff official of the Agency, or his/her duly delegated representative), which approval shall not be unreasonably withheld, provided that the Developer can demonstrate to the reasonable ..... satisfaction of the Agency Executive Director that the assignee has the financial capability and the experience necessary to develop the project to the same standard of quality that would have been undertaken by the Developer. Notwithstanding the foregoing, the Developer shall have the right to assign this Agreement-and its rights hereunder to an entity, which controls, is controlled by or is under common control with the Developer, or its principals, members or affiliates. c. The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities and individuals in control of the Developer, as well as any and all material changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its partners or officers have been notified or may otherwise have knowledge or information. Upon the occurrence of any material change in interest or control, whether voluntary or involuntary, in membership, ownership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved in writing by the Agency Executive Director, prior to or subsequent to such change (after the Developer has received reasonable notice and an opportunity to cure such change to the reasonable satisfaction of the Agency Executive Director), the Agency may terminate this Agreement by serving written notice of such termination, referencing this Section, on the Developer. 3. Project Concept Plan Study. .- a. From and after the Effective Date, the Developer shall initiate the preparation of a feasibility study for the redevelopment of the Project Concept Plan proposed by the Developer which shall include a preliminary financial feasibility study and a business plan relating to the Home Depot commercial center (the "Project Concept Plan Study"). As soon as practical following the Effective Date, the Developer shall retain the services of a firm or firms of community redevelopment planning, 4848-5191-7313.1 5 P:\Agendas\Agenda Attachmenls\Agrmts-Amend 2006\09-18-06 Home Depot. Final North Arden Guthrie ERN.doc '-- - "-.., engineers, architects, financial consultants, land use planners and environmental consultants to produce all necessary reports, studies and environmental documentation and other investigations, surveys and reports appropriate in connection with the Project Concept Plan Study and the evaluation of the Project Concept Plan proposed by the Developer and for the processing of all entitlements required to be obtained from the City together with the required environmental review and processing. All third party costs incurred by the Developer as part of the preparation of the Project Concept Plan Study shall be paid solely by the Developer in accordance with Section 4 of this Agreement. The Agency shall undertake compliance with all requirements of CEQA including the preparation of an initial study based upon the Project Description and Project Concept Plan provided by Developer. The Developer shall assist the City and the Agency in the identification of appropriate CEQA consultants and pay for the cost of those consultants as retained by the City or the Agency, as applicable. The Agency either as the "lead agency" or with the City as the "lead agency" shall retain the selected consultants and submit monthly invoices to the Developer for the payment of all such consultant costs that are payable to the consultants. Nothing contained herein shall commit the Agency or the City as to the final result of the CEQA analysis nor to the form of the final CEQA compliance document nor to the form and extent of the studies, reports and conclusions as may ultimately be required for the completion ofthe CEQA analysis for the Project Concept Plan. b. The Developer may modify the description of the Project Concept Plan at any time; provided, however, that substantial modifications of the Project Concept Plan shall: (i) be subject to the acceptance and approval of the Agency Executive Director which approval shall not be unreasonably withheld, conditioned or delayed; (ii) depending on the nature of such a modification, a suitable modification of the environmental and other elements of the Project Concept Plan Study as modified may also be indicated. The Agency and/or the Agency Executive Director may request that the Developer consider modifications to the description of the Project Concept Plan from time-to-time. The final form of each such modification shall be subject to the reasonable approval of the Agency Executive Director and the Developer. c. The Agency shall on a best efforts basis during the course of the Project Concept Plan Study consider the specific terms and conditions of redevelopment assistance which the Developer may propose to include in the Project DDA; provided, however, that the Agency reserves the sole and absolute discretion to accept, reject or modify any such proposed term or condition to the Project DDA and to approve or reject the Project DDA in its sole and absolute discretion. d. All third-party consultants, if any, retained and paid for by the Agency to review any study, report or document prepared by or on behalf of the Developer as part of the Project Concept Plan Study shall be subject to the sole control and direction of the Agency. The work product of any such person shall be the property of the Agency. The Agency shall have the right to use and republish such work product for any purpose subject to the reasonable consent of Developer. ,_ e. Subject to the terms and conditions ofthis Agreement, the Developer shall undertake an economic feasibility study of the Project Concept Plan as part of the Project Concept Plan Study consisting of the elements as set forth below: 4848-5\91-73\3.\ 6 P:\Agendas\Agcnda Attachmcnls\Agrmts-Amend 2006\09.1S.Q6 Home Depot. Final North Arden Guthrie ERN.doc , -- (A) preparation by the Developer in consultation with the Agency of a financial feasibility study or other similar analysis for the development of the Project Concept Plan on the Arden Guthrie Site, setting forth the plan for the acquisition of the Agency Property and the Private Property (or anyone of them) and the phasing of the Project Concept Plan development, if any, and an estimate of development costs, project income and a pro forma statement of Project Concept Plan capital return including, without limitation, the following: (1) final projections of debt and equity that will be required of the Developer to undertake the Project Concept Plan including construction and permanent financing of the private structures and infrastructure financing for all publicly owned facilities; and (2) final projection of a financial contribution to support the City Soccer Fields; and (3) final projections of public (City, State and Federal) financial assistance anticipated for the Project Concept Plan including source, dollar amount, timing of the necessity for such funds and the probable repayment sources; and (4) final projections of overall development costs, including private and public improvements, Project Concept Plan assessed values, revenues designated by sources and dollar amounts, transient occupancy taxes, sales and property taxes for the commercial development to be comprised of the Home Deport store and other retail and commercial to be complimentary to the uses anticipated within the commercial development; and ~ (5) appropriate documentation or execution of the appropriate documents to enable the Agency to fulfill the requirements from HUD for the 108 Loan, including, but not limited to, the actual language to implement the various covenants of the Developer as may be required by HUD and the form, content and dollar amount of any letters of credit as may be required by HUD to be provided by the Developer. An initial draft of a document including the study elements identified in subparagraph (I) through (4) above shall be completed by the Developer and submitted to the Agency within one hundred eighty (180) calendar days following the Effective Date. Thereafter, provided that the Agency Executive Director has not terminated this Agreement due to the insufficiency or inadequacy of the Project Concept Plan as set forth in Section I.b.(3), the parties shall refine the draft document of thca Project Concept Plan as submitted by the Developer in accordance with a schedule to be mutually agreed upon for the refinement of the work for such studies, including the content and scope thereof, to be mutually approved by the parties, which approval shall not be unreasonably withheld. (B) The Developer in consultation with the Agency shall prepare a proposed conceptual development plan for the Project Concept Plan, to include, without limitation: (I) proposed land use categories on a parcel-by-parcel basis, including proposed zoning and General Plan changes, if any, necessary to accommodate the Project Concept Plan to accommodate the intended commercial development on the Agency Property; and .........c 4848-5191-7313.\ 7 P:lAgendas\Agcndl Attacllmcn\slAgmus-Amcnd 2006\09-18-06 Home Depot. Final North Arden Guthrie ERN.doc - (2) proposed time schedule and cost estimates for the development and proposed public and private infrastructure upgrades, proposed publicly owned facilities, public improvements, public infrastructure and private development; and '- (3) proposed financing plan identifying the timing of receipt by the Developer and the Agency, as applicable, of the financing sources for all private and public improvements proposed in the Project Concept Plan, by phase, if applicable; and (4) proposed terms and price for the acquisition of the Agency Property, if any, as may be deemed necessary for the Project Concept Plan which based upon representations made by the Developer to the Agency as an inducement to obtain this Agreement shall be equal to the greater of (i) the appraised fair market value of the Agency Property and the other Private Property that comprise the Arden Guthrie Site or (ii) $5,800,000; and (5) proposed financing plan for the acquisition by the Developer and/or the Agency of any Private Property as necessary for the Project Concept Plan. The conceptual development plan for the Project Concept Plan as described above may be revised from time-to-time in accordance with a schedule of preparation and revisions as may be mutually approved by the parties. "- f. Within one hundred twenty (120) calendar days after the Effective Date, the Developer shall inform the Agency in writing whether, based on the information set forth in Section 3.e.(A), the Developer believes that the Project Concept Plan is feasible. Thereafter, the Developer and the Agency may proceed to negotiate the final form of an agreement, in which the specific terms for the redevelopment of the Arden Guthrie Site may be set forth on terms mutually acceptable to the parties as may be contained in the Project DDA subject to the final approval thereof by the parties each at their sole and absolute discretion. g. The Developer shall submit each of the items of information described in this Section to the Agency Executive Director within the time periods set forth above. Within fifteen (15) calendar days after receipt of any such information, the Agency Executive Director shall determine whether such information is satisfactory. If the specific item of information is unsatisfactory to the Agency Executive Director, he or she shall notify the Developer in writing of the reason or reasons that the information is unsatisfactory. If the Agency Executive Director does not make a determination regarding any item of information submitted by the Developer under this Section 3, within twenty (20) calendar days after receipt of such information by the Agency, the information as submitted by the Developer shall be deemed submitted in acceptable form to the Agency. The determinations to be made by the Agency Executive Director under this subsection shall in no manner bind or constitute the approval of the Agency regarding, without limitation, plans, specifications, engineering, architecture, uses, tenants, sale prices, rental rates, the Project Concept Plan or the Project DDA. h. On or before the expiration of the Negotiating Period and prior to the adoption of the Project DDA, the Developer shall submit a written proposal to the Agency setting forth the manner in ,'-' which the Developer intends to provide some form of financial support or assistance for the City ...... Soccer Fields. 4848-5\91-7313.\ 8 P:\Agc:ndas\Agcnda A1lachmenls\Agrmls-Amend 2006\09-18-(16 Home Depot. Final North Arden Guthrie ERN.doe - 4. Project Concept Plan Study Costs. -.. For the purposes of this Agreement, "Project Concept Plan Study Costs" shall mean and refer to the costs and expenses of third party consultants who are engaged by the Developer under written contract to undertake one or more elements of the Project Concept Plan Study including the environmental review and processing and the preparation of all required studies and reports in furtherance of the entitlements to be requested by the Developer from the City or Agency. Project Concept Plan Study Costs shall include third party costs incurred by the Developer in connection with the preparation or submission of any information relating to the Project Concept Plan on which any element of the Project Concept Plan Study may be based, including civil engineering expenses, traffic consultant fees, architectural fees, financial consultants, accounting fees and similar expenditure items. In addition to the Project Concept Plan Study Costs incurred and paid by the Developer, each party shall bear its own legal fees and costs and for consultants and service providers, which such party engages, including, but not limited to, the costs to borne by the Agency pursuant to paragraph 3.d. above. Notwithstanding the foregoing, the Developer understands that the Agency may request, and the Developer shall consider, that the Developer enter into one or more separate written agreements pursuant to which the Developer would reimburse the Agency for specifically budgeted, identified and capped third party independent consultant costs which the Agency may desire to enter into based on staffing unavailability for purposes of undertaking a comprehensive review the Project Concept Plan Study. 5. Obligations of the Developer. During the Negotiation Period, the Developer shall proceed diligently and in good faith to \_ perform the following: a. Consider the redevelopment of the Project Concept Plan, including, without limitation, the selection of the design of improvement elements as appropriate for the Project Concept Plan in addition to any commercial or retail elements of the Project Concept Plan; and b. Review and provide the Project Concept Plan Study information described in Section 3 and submit an executed copy of the final form of the Project DDA to the Agency Executive Director on or before the end of the Negotiation Period (or such later date corresponding to an authorized extension of the Negotiation Period in accordance with Section I); and c. Consult with the Agency and the Agency Executive Director on a regular basis and keep the Agency and the Agency Executive Director advised on the progress of the Developer in completing its obligations under this Agreement. 6. Agency Acknowledgments. The Agency hereby acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the Developer as an acceptance by the Developer of any offer or proposal from the Agency to purchase any interest in the Agency Property, in the Private Property or in, on or near the Arden Guthrie Site. Any studies undertaken by the Agency not relating to the Arden Guthrie Site shall be the sole responsibility of the Agency. '...., 4848-5191-7313.\ 9 P:lAgendas\Allenda Allachmenls\Agrmls-Amend 2006\09-1s-06 Home Depot. Final North Arden Guthrie ERN.doc ,".... 7. Obligations of Agency. - a. The Agency currently deems the disposition of the Agency Property, the acquisition of the Private Property and the redevelopment of the Arden Guthrie Site for a feasible Project Concept Plan to be appropriate, and the Developer appears to be well qualified to undertake the task of planning the details for the acquisition of the entire Arden Guthrie Site, including the sale by the Agency to the Developer of the Agency Property. b. During the Negotiation Period, and subject to the Agency's compliance with the California Community Redevelopment Law ("CRL") and the Owner Participation Rules of the IVDA pursuant to the Redevelopment Plan regarding the rights of owners and tenants within the Project Area, the Agency shall negotiate exclusively with the Developer with respect to the Arden Guthrie Site during the Negotiation Period. The Agency shall not negotiate with any other person or entity regarding either the disposition of any of the Agency Property or the redevelopment of the Project Concept Plan on the Arden Guthrie Site. The term "negotiate," as used herein, shall be deemed to preclude the Agency from accepting any other offer or proposal from a third party to either acquire from the Agency any interest in any of the Agency Property (in whole or in part) or redevelop the Arden Guthrie Site, and from considering other redevelopment proposals for the Arden Guthrie Site with third persons or entities; provided, however, any person may submit to the Agency and the Agency may consider any proposal for the disposition and/or redevelopment of any lands adjacent to the Arden Guthrie Site. Nothing contained herein shall be interpreted to prevent or limit the requirement and the ability of the Agency to negotiate with and obtain property interests in any real property or business interest located within the Arden Guthrie Site when such third party is exercising their rights pursuant to the Owner Participation Rules of the IVDA as required under the CRL. 'c~._..> c. During the Negotiation Period, the Agency may in its sole discretion, elect to acquire any Private Property as the Agency may deem appropriate on such terms and conditions as the Agency may approve. Nothing herein shall be deemed to be a commitment or understanding by the Agency to the Developer to acquire any such Private Property as may be offered for sale or which otherwise may become available for acquisition during the Negotiation Period and the Agency shall not be deemed to have appropriated or made available any funds therefore. .- d. Nothing in this Agreement shall bind the Agency to, or be construed to be a commitment by the Agency to, exercise its power to acquire property pursuant to Health and Safety Code section 33391 or to exercise its power of eminent domain with regard to any particular parcel or parcels comprising the Arden Guthrie Site; provided, however, that there has been no change in either State or federal law that would either preclude the exercise of the power of eminent domain by the Agency or seek to impose any financial penalty upon the Agency or the City in the event either the Agency or the City were to exercise the power of eminent domain to acquire any of the Private Property. As may be further provided in the Project DDA, the Agency may be requested, however, to consider in good faith, consistent with any applicable provision oflaw, any request from the Developer that the Agency exercise its power of eminent domain with regard to any particular parcel or parcels of the Private Property comprising the Arden Guthrie Site. In no event shall the Agency have any liability to the Developer for the Agency's failure to act upon the Developer's request, nor shall the Agency exercise its power of eminent domain unless and until the governing board of the Agency (the "Agency's Board") has duly considered the evidence before it as to whether the affected property is necessary for a public use under applicable federal and State laws and, in the exercise of the sole and absolute discretion of the Agency Board, has adopted a resolution of necessity after a duly noticed public hearing and has otherwise complied with the provisions of the California Eminent Domain Law, 4848.5191-7313.1 10 P:\Agcndas\Agcnda Auachmcnts\Agrml!i-Amend 2006\09-18-06 Home Depot. Final North Arden Guthrie: ERN.doc '- ,,_. Code of Civil Procedure Section 1230.010, et seq. The Project DDA shall additionally set forth the financial obligations of the Developer for the payment of the costs of such eminent domain proceedings, including appraisal costs, expert witness fees and legal expenses, whether through the purchase price of the property so acquired or otherwise. '- e. Notwithstanding any other provision of this Agreement, during the Negotiation Period, the Agency shall not be precluded from furnishing, to persons or entities unrelated to the Developer, information in the possession of the Agency relating to the redevelopment of any other land owned or controlled by the Agency in close proximity to the Arden Guthrie Site except for the Arden Guthrie Site. Consideration of the redevelopment of the Project Area under the terms of the Redevelopment Plan shall remain in the sole and exclusive purview of the Agency. The Agency may also provide any other information in its possession that would customarily be furnished to persons requesting information from the Agency concerning its activities, goals and matters of a similar nature, or as required by law to be disclosed upon request. 8. Agency Cooperation. During the Negotiation Period, the Agency shall: a. At the request of Developer, use its best efforts to assemble written materials and documents relating to the Arden Guthrie Site that are in the possession of the Agency. b. Use its best efforts to provide appropriate comment to the Developer with respect to one or more conceptual development plans, as may be proposed by the Developer for the Project Concept "--. Plan, and the redevelopment of the Arden Guthrie Site, including, but not limited to, conceptual plans or studies of the vacation, realignment or abandonment of public property, rights-of-way and facilities, the installation and improvement of public improvements and environmental evaluation of the Project Concept Plan. c. Use its best efforts to provide the Developer with limited access to those portions of the Agency Property or the Private Property after it has been acquired by the Agency during the Negotiation Period for the purpose of conducting customary due diligence investigations thereon, including environmental investigations of the subsurface or any stnicture thereon. These rights will be subject to the terms and conditions of a separate environmental investigation and inspection license agreement to be agreed upon by the Agency and the Developer, at some later date, if applicable. d. Use its best efforts to provide the Developer with information or copies of studies performed or to be performed relative to the Project Area. e. Use its best efforts to formalize the Project DDA with the Developer, wherein the Agency agrees to transfer to the Developer the Agency Property for such consideration to be agreed upon. f. Use its best efforts to assist the Developer in obtaining the entitlements necessary to develop the Project Concept Plan on the Arden Guthrie Site but without the incurring of any independent consultant or legal expenses. -- "- 4848-5191-7313.1 II P:\Agendas\Agenda Auachments\Agrmts-Amend 2006\09-18-06 Home Depot- Final North Arden Guthrie ERN.doe - .......,.. g. Use its best efforts without the incurring of any consultant or legal expenses to utilize Agency Staff personnel to expedite compliance under CEQA for the Project Concept Plan in addition to the CEQA compliance for any zoning changes, adoption of a specific plan (the "Specific Plan") if required by the Developer, General Plan amendments and all other entitlements necessary for the development of the Project Concept Plan on the Arden Guthrie Site, suggested by the Developer in its proposed conceptual development plan, referred to in Section 3.e.(A) and (B) above, or at any other time during the Negotiation Period. 9. Negotiation of Project DDA. During the Negotiation Period, the Agency and the Developer shall negotiate diligently and in good faith to prepare and attempt to enter into a Project DDA. Both of the parties shall exercise best efforts to complete discussions relating to the final terms and conditions of the Project DDA and such other matters, as may be mutually acceptable to the parties for the redevelopment of the Project Concept Plan on the Arden Guthrie Site, prior to the expiration of the Negotiation Period, but neither party, after such diligent and good faith negotiations, shall be bound by any term or provision of this Agreement to complete any such negotiations or to execute any final Project DDA. 10. Consideration for this Agreement and Reservation of Rights. In consideration for the Agency's entering into this Agreement, the Developer will undertake its obligations under this Agreement and provide the Agency with copies of all studies and reports and other non-confidential or non-attorney-client privileged information generated by the Developer or its consultants regarding the Project Concept Plan or the Arden Guthrie Site. Notwithstanding the ..... foregoing, the Developer shall provide all information required under Section 3.e. in its entirety as set forth therein and in accordance with Section 11. All information as may be provided by the Developer to the Agency which is of a confidential nature shall be subject to the provisions of said Section 11 which provides that the Agency agrees to maintain the confidentiality of any financial and/or proprietary information of the Developer that is exempt from disclosure as a Public Record pursuant to Government Code Sections 6254.15 and 6255. The parties agree that, if this Agreement terminates for any reason, the Agency fails to extend the Negotiation Period or the Project DDA is not fmally approved by the Agency for any reason, neither party shall be under any further obligation to the other party regarding the disposition, acquisition, reuse, redevelopment or development of the Project Concept Plan or the Arden Guthrie Site. 11. Planning and Design; Related Acknowledgments of the Parties. Certain development standards' and design controls for the Project Concept Plan may be established between the Developer and the Agency in negotiation of, or in the final form of, the Project DDA, but it is understood by both parties that the Project Concept Plan and the redevelopment of the Arden Guthrie Site must conform to the City's development, design and architectural standards. The Agency Staff shall use best efforts to cooperate with the Developer's professional associates in providing information and assistance in connection with the Developer's preparation of drawings, plans and specifications. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project Concept Plan or the Arden Guthrie Site, itself, by either the Agency or the City. ,.,-,. '-. 4848.5191.7313.1 12 P:\Agcndas\Agenda Allachments\Agrmts-Amcnd 2006\09-1S.Q6 Home Oepol. Final North Arden Guthrie ERN.doc 12. Developer Financial Disclosures. - The Developer acknowledges that it may be requested to make certain confidential financial disclosures to the Agency, its staff or legal counsel, as part of the financial due diligence investigations of the Agency relating to the potential disposition of the Agency Property to the Developer. The parties recognize that such financial disclosures may contain sensitive information relating to other business transactions of the Developer, that the disclosure of such information to third parties could impose commercially unreasonable and/or anti-competitive burdens on the Developer and, correspondingly, diminish the value or fiscal benefit that may accrue to the Agency upon the disposition of the Agency Property to the Developer, if the terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any ofthe Developer's financial and/or proprietary information that is exempt from disclosure as a Public Record pursuant to Government Code Sections 6254.15 and 6255. In the event that the Agency refuses to disclose records at the request of Developer, the Developer shall indemnify, defend (subject to the approval of the Developer's selected legal counsel by the Agency Counsel), and hold harmless, including payment of attorneys' fees, the City of San Bernardino and the Agency from any action, lawsuit or other proceeding initiated to obtain access to documents that may be determined to be exempt from disclosure pursuant to the applicable provisions of the Public Records Act. For purposes of this Section, "Attorneys' fees" shall include, without limitation, the costs, salary and expenses of the City Attorney and members of his office in representing the City and/or the Agency and Agency Counsel. 13. Nondiscrimination. The Developer shall not discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin, sexual orientation, or ancestry in undertaking its obligations under this Agreement. '- 14. Compliance with Law. The Developer acknowledges that the Project DDA, if mutually agreeable terms are established, may require the Developer (among other things) to carry out the construction of certain improvements in conformity with all applicable laws, including all applicable planning and zoning laws, environmental planning and safety laws and federal and state labor and wage laws that will require the payment of the prevailing wage rates all as shall be further set forth in the Project DDA. IS. Required Approvals. No Project DDA between the parties shall have any force or effect, nor shall the Agency be deemed to be a party to any agreement for the disposition of any real or personal property to the Developer, until the terms and conditions of the Project DDA are considered and approved by the governing body of the Agency, following the conclusion of a noticed public hearing, as required by the CRL. 16. Press Releases. - The Developer agrees to discuss any press releases it may propose relating to the Arden Guthrie Site with the Agency Executive Director or his/her designee, prior to publication, to assure accuracy and consistency of the information. The Agency shall not issue press releases or make public disclosure of information concerning the Arden Guthrie Site or the Developer's proposals (unless the Developer has consented thereto) except as may be required by applicable law. - 4848.5191.7313.1 13 P:\AgendaslAgenda AnachmcntslAgrmts.Amcnd 2006\09-18.06 Home Depot. Final Nonh Arden Guthrie ERN.doc - 17. Notices. ......~ All notices required hereunder shall be presented in person or by fax and by First Class certified or registered United States mail with return receipt requested. Notice shall be deemed confirmed by United States mail effective the second (2nd) business day after deposit with the United States Postal Service. Notice by personal service shall be deemed effective upon delivery. Any party may change their address for receipt of notice by notifying the other parties in writing. Both parties shall strive to deliver notice to the Co-Developer but failure to deliver notice or the failure to receive notice by the Co-Developer shall not in any manner affect the validity of notice given from one party to the other. TO DEVELOPER: Home Depot, Inc. Attn.: Mr. George Ray, Real Estate Manager 3800 East Chapman Avenue Orange, California 92868 (714) 940-3604 TO CO-DEVELOPER: (informational purposes only) Gerald W. Beard Realty, Inc. Attn.: Mr. Scott C. Beard, President 285 West Rialto Avenue Rialto, California 92376 (909) 875-2210 Ext. 106 and --.. Mr. Mark Sandoval III North Fifth Street, Suite 8 Redlands, California 92373 TO AGENCY: Redevelopment Agency of the City of San Bernardino Attn.: Maggie Pacheco, Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 (909) 663-1044 18. Acceptance of Agreement by the Developer. The Developer shall acknowledge its acceptance of this Agreement by delivering three (3) counterpart executed copies of this Agreement signed by an authorized party on behalf of the Developer. 19. Authority. This Agreement may be executed in counterparts, and when fully executed by the parties, each such counterpart shall be deemed to be one (I) original document. Each signatory to this Agreement represents and warrants that he or she has the authority to execute this Agreement on behalf of the .- principal whom he or she purports to represent. --.. 4848.5191-7313.1 14 P:\Agendas\AgcOOa Anachmcnls\Agrmts-Amcnd 20!l6\09.\S.Q6 Home Depot. Final North Arden Gulhr~ ERN.dot 20. Optional Termination by Developer. _ Provided the Developer is not in default, the Developer may, in its sole and absolute discretion, exercise an election to suspend the Project Concept Plan Study, and thereafter this Agreement shall terminate and the parties shall be mutually released from any further obligations hereunder; provided, however, that the Developer gives thirty (30) calendar days' prior written notice to the Agency and has paid all amounts of the Agency expenses that were incurred by the Agency in reliance upon any separate written agreement or agreements with the Developer wherein the Developer has agreed to reimburse the Agency for specifically budgeted and identified third party independent consultants, which the Agency has sought to retain due to the unavailability of staff to review the Project Concept Plan. Provided the Agency is not in default, the Agency may in its sole and absolute discretion exercise an election to suspend the Project Concept Plan Study, and this Agreement shall terminate and the parties shall be mutually released from any further obligation hereunder thirty (30) days following written notice by the Agency to the Developer. 21. Defaults and Breach - General. a. Failure or delay by any party to perform any material term or provIsIOn of this Agreement shall constitute a default under this Agreement; provided, however, that if the party who is otherwise claimed to be in default by the other party cures, corrects or remedies the alleged default within thirty (30) calendar days after receipt of written notice specifying such default such party shall not be deemed to be in default hereunder. _.,.> b. Any failure or delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with such a default. c. In the event that a default of any party may remain uncured for more than thirty (30) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred unless such party who is alleged to be in default is in the process of diligently prosecuting the cure of such default, such cure was commenced immediately upon receipt of notice as above set forth and such breach cannot be cured within said thirty (30) calendar days even though the cure was commenced in a timely manner. d. In the event of a breach, the party who is not in default shall be entitled to seek any other appropriate remedy by initiating legal proceedings. The successful party in any such legal proceeding shall be entitled to recover its reasonable attorneys' fees as an element of its damages, either as part of such legal proceedings or in a separate legal action to recover such attorneys' fees. Attorneys' fees shall include, without limitation, the costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement. e. In the event that a breach has occurred under this Section 20, the party who is not then in default may terminate this Agreement by serving the other party with a written notice of termination, and thereafter the Agreement shall terminate thirty (30) calendar days following the date of service of the notice of termination on the other party. "'_'0' 4848.5191-7313.1 15 P:lAgendaslAgcnda AllachmcnlslAgnnls-Amend 2006\09-]8-06 Home Depot. Final North Arden Guthrie ERN.doc 22. Governing Law; Venue. ~ The parties hereto acknowledge that this Agreement has been negotiated and entered into in the State of California. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. Further, the parties to this Agreement hereby agree that any legal actions arising from this Agreement shall be filed in California Superior Court, in the Court of San Bernardino, Central District. 23. Partial Invalidity. If any term, provision or portion of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 24. No Intent to Create Third Party Beneficiaries. The parties intend that the rights and obligations under this Agreement shall benefit and burden only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or benefit of any third party, including any governmental agency, who is not one of the parties to this Agreement. The Co-Developer shall under no circumstances be deemed to be a third party beneficiary to any of the rights or provisions contained in this Agreement. ......< 25. Waivers. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligation or act to be performed herein shall be deemed to be an extension of the time for performance of any other obligation or act to be performed under this Agreement. 26. Entire Agreement. This Agreement (including the Exhibit attached hereto) is the final expression of, and contains the entire agreement between, the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. 27. Time of Essence. Except as provided in Section 20 of this Agreement, time is strictly of the essence with respect .- to each and every term, condition, obligation and provision hereof and that failure to timely perform "-' any of the terms, conditions, obligations or provisions hereof by any party shall constitute a default under this Agreement by the party so failing to perform subject to such failure to timely perform being waived by the non-defaulting party at their sole option and discretion. 4848-5191-7313.1 16 P:\Agcndas\Agcnda AUlclimenls\Agrmls-Amend 2006\09-18..Q6 Home Depot - Final North Arden Guthrie ERN.doc 28. Construction. - Headings at the beginning of each section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to Sections are to this Agreement. The Exhibit referred to in this Agreement are attached hereto and incorporated herein by this reference. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates indicated next to each of their signatures as appear below. DEVELOPER Home Depot, Inc., a Delaware corporation By: Dated: Dated: - AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Dated: By: Maggie Pacheco, Executive Director Approved as to Form and Legal Content: c~ Age:~ I .,..""'. - 4848-5191-7313.1 17 P:\Agendas\Agenda AUachment5\Agrmts-Amend 2006\Q9-i8.06 Home Depot. Final North Arden Guthrie ERN.doc "-.. ,"--.,.' "-~ EXHIBIT" A" Arden Guthrie Site 4848-5191-7313.1 18 P:\Agcndas\Agenda Allachmenls\Agrmls-Amcnd 2006\09-IS..()6 Home Depot. Final Nonh Arden Guthrie ERN.doc EXHIBIT "A" 2029 ...--- - ---------- HIGHLAND AVENUE I . I . I ~ I ~ ~ I I L_ ___.J~ .JT~El. _ _ __ _,':'.. T-/-~ " ....1 " '" V :s; /'i~ ~ I i~-: ~ " 1~ 5s " r~ ~ " :::.. : ""'i ~r(";"'i u is? "'-, 2115 ,m I- '''' W W 21" II:: I- '''' Vl o Z20S1 w ii2 J: I- ::l Cl '005 , , , , , , --,., ~ 1800::E: <: "'IL&J ....lffi - I.I,JV) " ZI' i ~ :> \ $ g '<( $sc ;.n SmUI/IJ __ ' It ::> PWA ..".. . ~IGHLAN . - '" c BYRON 1?C < cl ... C2 8!?i I~ :I: 3: l~ I.... 51 z co 'v, ::i <I >J::2 I a>~.::.' AMANDA ST \ J ) / ../ 1 mRV 8T