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HomeMy WebLinkAboutR36-Economic Development Agency ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FROM: Gary Van Osdel Executive Director SUBJECT: CATELLUS-REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT (MT. VERNON CORRIDOR REDEVELOPMENT PROJECT A~ _________ DATE: December 3,2003 nf?,,~I'VIt r y ~ - &, \....: I, I "/l L.. Svnopsis of Previous Commission/CouncUlCommitlee Actlon(s): On November 20, 2003, Redevelopment Committee Members Anderson, Suarez and Estrada unanimously voted to recommend that the Community Development Commission consider this action for approval. Recommended Motlon(s): (Community Develonment Commission) MOTION: A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AGREEMENT FOR PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE WITH CATELLUS COMMERCIAL GROUP, LLC (MT. VERNON CORRIDOR REDEVELOPMENT PROJECT AREA) ("AGREEMENT") Contact Person(s): Project Area(s) Gary Van Osde! Phone: (909) 663- 1044 3rd Mt. Vernon Corridor Ward(s): Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map{s) 0 Letters FUNDING REQUIREMENTS Amount: $ N/A Source: N/A SIGNATURE: N/A Commission/Conncil Notes: P:\Agcndas\Comm Dev Commission\CDC 2003\03-12-15 CaleUus RPS.doc COMMISSION MEETING AGENDA Meeting Date: 12115/2003 Agenda Item Number: RJ ~ ECONOMIC DEVELOPMENT AGENCY STAFF REPORT Catellus - Redevelopment Project Studv and Redevelopment Assistance Aereement (M" Vernon Corridor Redevelopment Project Area) BACKGROUND: On May 13, 2003, the Agency was approached by the Catellus Commercial Group, LLC (Catellus) regarding their desire to jointly pursue acquisition of approximately 90 acres of County Flood Control property located on Orange Show Road, west of the Auto Plaza (the "Property"). Catellus'intended use of the property would be primarily light industrial. On May 22, 2003, the Redevelopment Committee voted to recommend to the Community Development Commission that the Agency be authorized to negotiate the purchase of the Property. On June 2, 2003, the Community Development Commission authorized the Executive Director to initiate negotiations with Ken Miller, Director of the County's Flood Control District, relative to acquisition of the Property. On July 23, 2003, the Agency Executive Director, together with Agency Special Counsel, met with Ken Miller, regarding the possibilities for the Agency to acquire the Property. According to Mr. Miller, upon receipt of a letter from the Executive Director confirming the Agency's interest in pursuing acquisition of the Property, he would proceed to have the Property appraised and would, subsequent to receipt of the appraisal, request the Board of Supervisors to declare the Property surplus. On July 28, 2003, a letter confirming the Agency's intent with regard to the Property was mailed to Ken Miller (see Exhibit "A"). On October 30, 2003, at a meeting with Ken Miller regarding other flood control issues, Mr. Miller indicated that the process leading to the Board of Supervisors declaring the Property as surplus, had been initiated. CURRENT ISSUE: In as much as in the near future the Board of Supervisors may be declaring the Property as surplus it is appropriate at this time to memorialize the Agency's relationship with Catellus as it relates to the acquisition of the Property. ENVIRONMENTAL IMPACT: None. P:\Agendas\Comm Dev Conunission\CDC 2003\03.\2.15 Catellus RPS.doe COMMISSION MEETING AGENDA Meeting Date: 12/15/2003 Agenda Item Number: KJ& Economic Development Agency Staff Report Catellus RPS and RAA Page 2 FISCAL IMPACT: If the Property is declared surplus and the Agency, as a public entity, is given the opportunity to acquire same, all costs related to acquisition would be borne by Catellus. RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. P:\Ascndu\Conun Dev Commission\COC 2003\03-12-15 CatcUus RPS.doe COMMISSION MEETING AGENDA Meeting Date: 12115/2003 Agenda Item Number: J~.J(j EXHIBIT" A" City of San Bernardin< ECONOMIC DEVELOPMENT AGENCl Redevelopment. Community o-topmsnt - HousIng - Business: RecroItmen~ Retention, Rev/taJlzation . Main Street. tnc. * July 28, 2003 Ken Miller, Director San BefI1llfdino County Flood Control District 825 East 3 rd Street San Bernardino, CA 92410 Dear Ken: Thank you very much for meeting with Mr. Sabo and myse~ast week to discuss the possibilities of acquiriIlg surplus properties owned by the Flood Control DiIl.trict within the City of San Bernardino. . . .' The purpose of this letter is to confirm that.the Redevelopment Agency of the City of San. Bernardino is interested. in pursuing the acquisition of approxiinately 90. acres of COunty~...; Flood Control property located on Orange Show Road west of the Aufo I'lazaiIifuecities. of San Bernardino and Colton. For your information, the Mayor and Common Council, acting as the Community Development Commission, has authorized me to act on their behalf in negotiating the purchase of such property. . It is my understanding that pursuant to .receipt of this Letter, it is your intent to haVe the subject property appraised and to subsequently ask the Board of Supervisor to declare the ~ property surplus. . - .- If there are any actions that I should be taking at this time in regard to this matter, pJease advise. . cc: Pat Cavanagh, Catellus Tim Sabo, Agency Special Counsel ; 201 North EStreet Suite301-San BemardiIlO, Caftfomia 92401-1507-(909) 663.1044 -Fax(909) 888-9413 WlUlUC'0nh4:.,"~nr~... ^"" 1 RESOLUTION NO. 2 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AGREEMENT FOR PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE WITH CATELLUS COMMERCIAL GROUP, LLC (MT. VERNON CORRIDOR REDEVELOPMENT PROJECT AREA) ("AGREEMENT") 4 5 6 7 8 9 WHEREAS, the Agency intends to acquire a portion of certain properties and owned by County of San Bernardino as generally depicted in Exhibit "A" (the "County Property") a portion of which is located with the boundaries of the City of San Bernardino; and WHEREAS, a portion of the County Property is situated within the Mt. Vernon Corridor Redevelopment Project Area, and a portion within the City of Colton; and WHEREAS, the Agency is prepared to consider and study the provision of certain redevelopment assistance to Catellus Commercial Group, LLC (the "Developer") to facilitate the assemblage of the City of San Bernardino portions of the County Property into developable 10 J1 12 13 14 15 16 parcels of land so as to foster the community economic development goals and objectives of the 17 City of San Bernardino (the "City") as the same relate to the Mt. Vernon Corridor Redevelopment Project Area which the Agency has designated for such study purposes, the land included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "B" (the "Study Area") for such study; and WHEREAS, the Study Area includes the County Property within the City of San Bernardino and the County Property within the City of Colton; and WHEREAS, the Agency intends to initiate certain additional studies and proposals to address a number of issues of community concern in the Study Area relating to elimination and 18 19 20 21 22 23 24 25 prevention of the spread of blight from the Study Area; and -1- P:\Agendas\Rcsolutions\ReliOlutions\2003\03-12-15Cale\IusCDCReso.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHEREAS, the Developer is qualified to assist the Agency to undertake the study of specific proposals and plans for a coordinated and economically sustainable redevelopment project in the Study Area, which will require specific study, evaluation, and planning by the City and Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; and WHEREAS, following the Effective Date (as defmed in the Agreement), the Developer may in its sole discretion, but under no obligation to do so, acquire any or all of the County Property in the Study Area on terms which are economically feasible for the Developer, and which are also acceptable to all interested persons; and WHEREAS, the Developer and the Agency believe it is appropriate for the Agency, in consultation with the Developer, to undertake certain redevelopment studies and to incur certain costs as part of a program for the study of feasible redevelopment programs for the Study Area, subject to the terms and conditions as set forth in the Agreement. WHEREAS, in accordance with the provisions of the California Enviromnental Quality Act (CEQA), a redevelopment study agreement is exempt from the provisions of CEQA. NOW, TIlEREFORE, TIlE COMMUNITY DEVELOPMENT COMMISSION OF TIlE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: Section 1. The Community Development Commission hereby authorizes and approves the Agreement by and between the Agency and Developer in the form as presented at the meeting of the Commission at which this Resolution is adopted and hereby authorizes the Executive Director to execute the Agreement on behalf of the Agency together with such technical and conforming changes as recommended by the Executive Director and approved by the Agency Counsel. Section 2. The Resolution shall become effective immediately upon its adoption. III -2- P:\Agendas\Resolutions\Resohdions\2003\03-12-15 CateUus CDC Reso.doc 1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT STUDY AGREEMENT FOR PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE WIm CATELLUS COMMERCIAL GROUP, LLC (MT. VERNON CORRIDOR REDEVELOPMENT PROJECT AREA) ("AGREEMENT") 2 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 7 Conununity Development Conunission of the City of San Bernardino at a meeting 8 thereof, held on the day of , 2003, by the following vote to wit: 9 Conunission Members: Abstain Absent Aves Navs 10 11 ESTRADA LONGVILLE 12 MCGINNIS 13 DERRY SUAREZ ANDERSON MC CAMMACK 14 15 16 17 18 Secretary 19 The foregoing resolution is hereby approved this day of ,2003. 20 21 22 Judith Valles, Chairperson Conununity Development Commission of the City of San Bernardino 23 24 By: 25 -3- P:\Agenda.s\Resolutions\Resolutions\2003\03-12-1S CateUus CDC Reso.doc CfTY LIMITS i~-' PORTION OF MT. VERNON CORRIDOR RDA PROJEcr C!J. .....~ "'1 NottoS<:ale EXHIBIT "A" COUNTY AREA CITY LIMITS --- PORTION OF MT. VERNON CORRIDOR RDA PROJEcr (;) Not to Scale EXHIBIT "B" STUDY AREA THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT (CATELLUS COMMERCIAL GROUP, LLC: MT. VERNON CORRIDOR REDEVELOPMENT PROJECT AREA) REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT, is dated as of , 2003 (the "Agreement") and is entered into by and between CATELLUS COMMERCIAL GROUP, LLC, a (the "Developer") and the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body corporate and politic, (the "Agency") in light of the facts set forth in the following recital paragraphs: RECITALS As of the "Effective Date," as this term is defined below, the Agency intends to acquire certain portions of properties from the County of San Bernardino as generally depicted in Exhibit "A" a portion of which is located within the City of San Bernardino (the "County Property"); and A portion of the County Property is situated in an area which is referred to as the "Mt. Vernon Corridor Redevelopment Project Area," and a portion within the City of Colton; and The Agency is prepared to consider and study the provision of certain redevelopment assistance to the Developer to facilitate the assemblage of the County Property into developable parcels of land so as to foster the community economic development goals and objectives of the City of San Bernardino (the "City") as the same relate to the Mt. Vernon Corridor Redevelopment Plan Area and the Agency has designated for such study purposes, the land included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "B" (the "Study Area") for such study; and The Study Area includes the County Property located within the City of San Bernardino and the County Property located within the City of Colton; and The Agency intends to initiate certain additional studies and proposals to address a number of issues of community concern in the Study Area relating to elimination and prevention ofthe spread of blight from the Study Area; and The Developer is qualified to assist the Agency to undertake the study of specific proposals and plans for a coordinated and economically sustainable redevelopment project in the Study Area, which will require specific study, evaluation, and planning by the City and Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; and P:\Clerical Services DeptlMargaret\Agreemenl!l-Amendments\Agnnts-Amend 2003\03-12-15 Catellus Project Study.DOC I Following the Effective Date, defmed below, the Developer may at its sole discretion, but under no obligation to do so, acquire any or all of the County Property within the Study Area on terms which are economically feasible for the Developer, and are acceptable to all interested persons; and The Developer and the Agency believe it is appropriate for the Agency, in consultation with the Developer to undertake certain redevelopment studies and to incur certain costs, as part of a program for the study of feasible redevelopment programs for the County Property within the Study Area, subject to the terms and conditions as set forth below. NOW THEREFOR, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY AGREE, AS FOLLOWS: I. Develooer Acknowledl!ements and Term of Al!reement. a. The Developer hereby acknowledges and agrees that no proVISIOn of this Agreement shall be deemed to be an offer by the Agency nor an acceptance by the Agency of any offer or proposal from the Developer to convey any interest in the County Property to the Developer. Any studies relating to the Study Area, the County Property, and the Project (as defmed below) that may hereafter be undertaken by the Developer, in its sole discretion shall be the sole responsibility of the Developer and shall not be deemed to be undertaken for the benefit of the Agency and/or the City. The Developer acknowledges that the Agency does not have the jurisdictional power or authority to acquire any portion of the County Property that is located outside the municipal boundaries of the City of San Bernardino and, therefore, the Developer will be solely responsible for the acquisition of any County Property located outside of the jurisdiction of the Agency. b. The qualifications and identity of the Developer and its principals are of particular concern to the Agency. The Agency relied on these qualifications and identity in entering into this Agreement with the Developer. During the term of this Agreement, no voluntary or involuntary successor-in-interest of the Developer shall acquire any right or power under this Agreement. The Developer shall not assign all or any part of this Agreement, or any rights hereunder, without the prior written approval of the Agency Executive Director, which the Agency Executive Director may grant or refuse in his or her sole and absolute discretion. c. The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities and individuals either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its partners or officers have been notified or may otherwise have knowledge or information. Upon the occurrence of any significant or material change, whether voluntary or involuntary, in membership, ownership, management or control of the Developer (other than such changes occasioned by the death or incapacity of any individual) that has not been approved in writing by the Agency Executive Director, prior to the time of such change, the Agency may terminate this P:\Clerical Services Dept\Margaret\Agm::ments-Amendments\Agrmls-Amend 2003\03-12-15 Catellus Project Study.DOC 2 Agreement by serving written notice of such termination, referencing this Section, on the Developer. d. This Agreement shall automatically terminate, without further notice or action, and be of no further force or effect twelve (12) months following the Effective Date (defined below), unless prior to that time: (1) the parties execute the Project DDA, as described below, which will include, without limitation, other relevant community redevelopment covenants acceptable to the Agency and such other terms and conditions mutually acceptable to the parties, in which case this Agreement shall terminate on the effective date of the Project DDA; or, (2) the parties each agree to extend the term of this Agreement in writing to a specific date, subject to the Agency first making a finding in its sole discretion that satisfactory progress is being made to complete the activities to be performed by the Developer set forth in Section 3; or (3) a party terminates this Agreement as provided under Section 20 or Section 21, as applicable. 2. The Proiect. Subject to the terms and conditions of this Agreement, the Developer shall take all reasonable actions required or necessary for determining the feasibility of the acquisition and redevelopment of the lands included in the Study Area, either in whole or in part, and for undertaking ninety (90) acres of light industrial development (the "Project"). 3. Effective Date. a. Conditions Precedent to Effective Date. The provisions of this Agreement shall be operative from and after the Effective Date, which shall be the date that Catellus delivers a written notice to the Agency ("Notice to Proceed") that the following three (3) conditions precedent have been met in the sole discretion of the Developer (the "Effective Date"): (1) that the appraisal for the County Property, to be conducted by the County of San Bernardino, sets forth a reasonable purchase price for the County Property which is based upon the actual site restraints, physical conditions and current zoning of the County Property; (2) that the necessary zone changes and general plan amendments can likely be obtained from the City of San Bernardino for the County Property and from the City of Colton for the property adjacent thereto in the City of Colton; and (3) that the Developer is cognizant of the CEQA process that must be adhered to by the City of San Bernardino as the lead agency in connection with any zone P:\Clerical SelVices Dept\Margaret\Agreements-Amcndments\Agrmts-Arnend 2003\03-12-15 Catellus Project Study.DOC 3 change, general plan amendment and development proposal for the County Property, including that the action of the City in approving any zone change or general plan amendment may be subject to proceedings to invalidate such change and/or amendment. In the event the Developer has not delivered the Notice to Proceed to the Agency within 180 days following the approval of this Agreement by the Agency, this Agreement shall automatically terminate without any further action of the parties. The Developer acknowledges and agrees that neither the Agency nor the City have made any representation or statement regarding the probability that any zone change and general plan amendment for the County Property will be approved by either the Planning Commission of the City or the Mayor and Common Council of the City. By the execution and approval of this Agreement, the Developer further acknowledges and agrees that neither the City nor the Agency shall be held liable or responsible in any manner for the fmal discretionary decision as to the eventual consideration of a zone change and general plan amendment for the County Property by either the Planning Commission of the City or the Mayor and Common Council of the City and that this Agreement shall not be construed to have pre-committed, pre-approved or guaranteed the approval by the Planning Commission or the Council for such requested zone changes and general plan amendments. 4. Nel!otjatjon Period. Project Study and Project Study Costs. a. The rights and duties of the parties established by this Agreement shall commence upon the Effective Date. This Agreement will continue in effect until a date which is twelve (12) months from the Effective Date unless such date shall have been first extended as authorized under Section l.d.(2). Such time period during which this Agreement shall be in effect (including any extensions of time approved by the Agency) is referred to as the "Negotiation Period" . b. Within sixty (60) days following the Effective Date, the Agency and the Developer shall initiate the preparation of a feasibility study for the redevelopment of the Project proposed by the Developer (the "Project Study"). The Agency may retain the services, but is under no obligation to do so, of a firm of community redevelopment planning and environmental consultants to assist in the preparation of the various investigations, surveys and reports appropriate in connection with the Project Study and the evaluation of the Project proposed by the Developer. On a best efforts basis, the Agency and Developer shall cause the initial phase of the Project Study as evidenced by the completion of an "Initial Study" as this term is defined under the California Environmental Quality Act ("CEQA") to be completed for the Project within one hundred and twenty (120) days following the Effective Date. The Initial Study may be prepared by either the Agency or the City as the "lead agency" as this term is defmed in CEQA. Thereafter, provided the Developer has completed the studies described in Section 3.h.(A) and (B) in sufficient detail to be mutually acceptable to the Developer and the Agency, the Agency and Developer shall on a best efforts basis, cause a draft environmental impact document for the P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-12-15 Catellus Project Study. DOC 4 Project to be circulated for public comment and review within sixty (60) days thereafter. Subject to the privilege of either party to suspend the Project Study prior to its completion as set forth in Section 19 each of the parties presently believes that the Project Study can be completed, including without limitation, the conduct of a public hearing on a final environmental impact document for the Project, within six (6) months following the Effective Date. c. The Developer may modify the description of the Project at any time; provided however, that substantial modifications of the Project shall: (I) be subject to the acceptance and approval of the Agency which approval shall not be unreasonably withheld, conditioned or delayed; (2) depending on the nature of such a modification, a suitable modification of the environmental and other elements of the Project Study as modified, may also be indicated. The Agency may request that the Developer consider modifications to the description of the Project from time-to-time. Each such modification shall be subject to the reasonable approval ofthe Developer. d. The Agency shall on a best efforts basis during the course of the Project Study consider the specific terms and conditions of redevelopment assistance which the Developer may propose to include in the Project DDA; provided however the Agency reserves the sole and absolute discretion to accept, reject or modify any such proposed term or condition to the Project DDA in its sole discretion. e. Notwithstanding any other provision of this Agreement to the contrary and provided the Agency is not in default, the Agency reserves the sole and absolute discretion to suspend the Project Study and terminate this Agreement at any time, in its sole and absolute discretion subject to the terms of Section 20.b. f. During the course of the Project Study, the Agency shall pay for any "Project Study Costs" and expenses of third party consultants who are engaged by the Agency under written contract to undertake one or more elements of the Project Study. Project Study Costs do not include third party costs incurred by the Developer in connection with the preparation or submission of any information relating to the Project on which any element of the Project Study may be based, including civil engineering expenses, architectural fees, accounting fees and the like. Each party shall bear its own legal fees and costs in connection with the Project Study. g. All third-party consultants retained by the Agency to prepare any study or document as part of the Project Study shall be subject to the sole control and direction of the Agency. The work product of any such person shall be the property of the Agency and the Agency shall have the right to use and republish such work product for any purpose. P:\Clcrical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-12-15 CaleJlus Project Study.DOC 5 h. Subject to the terms and conditions of this Agreement, the Developer and the Agency shall undertake an economic feasibility study of the Project as part of the Project Study consisting of the elements as set forth below: (1) preparation by the Developer in consultation with the Agency of a preliminary financial feasibility study/analysis for the development of the Project on the Study Area, setting forth the plan for acquisition of the County Property and the phasing of Project development, if any, and an estimate of development costs, project income, and a proforma statement of Project capital return including, without limitation, the following: (A) projections of Project income and operating expenses; and, (B) projections of debt and equity that can be drawn from the Project; and, (C) projections of Project cash flow; and, (D) projections of public (City, State, and federal) financial assistance anticipated for the Project; and, (E) projections of overall Project value, revenue, sales and property taxes; and, (F) projections of the costs and benefits to the City and the Agency for all construction, maintenance and operations of all proposed public improvements; and, (G) projections of the costs of additional or increased levels of public services; and, (H) projections of any new public revenues anticipated to be generated by the Project, by phase, if applicable, and upon completion of the Project. An initial draft of a document including the study elements identified in subparagraph (A) through (H) above shall be completed by the Developer and submitted to the Agency within sixty (60) days following the Effective Date. Thereafter the parties shall refine the draft document as submitted by the Developer in accordance with a schedule of refinement work for such studies to be mutually approved by the parties. (2) Prior to the time when the Initial Study is completed by the lead agency, the Developer in consultation with the Agency, shall have prepared a proposed conceptual development plan for the Project, to include, without limiting:proposed land use categories on a parcel-by-parcel basis, including P:\C1erical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03.12.15 CateUus Project Study.DOC 6 proposed zoning and General Plan changes, if any, necessary to accommodate the Project; and (A) proposed time schedule and cost estimates for the development of proposed public and private infrastructure upgrades, proposed publicly owned facilities, public improvements, public infrastructure and private development; and (B) proposed fmancing 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, by phase, if applicable; and (C) proposed financing plan for the acqulSltlOn by the Developer and/or the County Property as necessary for the Project; and (D) a list of potential users or tenants and anticipated lease rates and resale land prices. The conceptual development plan for the Project as described above may be revised from time-to-time in accordance with a schedule of preparation and revisions as may be mutually approved by the parties. i. The Developer shall inform the Agency in wntmg whether based on the information set forth in Section 4.h., the Developer believes that the Project is feasible prior to the time when the Agency shall cause a "Notice of Preparation" or a "Notice of Intention to Adopt a Negative Declaration" as these terms are defined in CEQA, as applicable to be circulated to interested person or responsible agencies for the Project. Thereafter, the Developer and the Agency may proceed to negotiate the final form of an agreement for in which the specific terms for the redevelopment of the Property may be set forth on terms mutually acceptable to the parties (the "Project DDA"). j. The Developer shall submit each of the items of information described in this section to the Agency Executive Director, within the time periods set forth above. Within twenty (20) calendar days of receipt of any such information, the Agency Executive Director shall determine whether such information is satisfactory. If the specific item of information is unsatisfactory to the Agency Executive Director, he or she shall notify the Developer in writing of the reason(s) that the information is unsatisfactory. If the Agency Executive Director does not make a determination regarding any item of information submitted by the Developer under this Section 4, within (10) calendar days of receipt of such information, the information shall be deemed submitted in acceptable form by the Agency. The determinations to be made by the Agency Executive Director under this subsection in no way bind or constitute the approval of the Agency regarding, without limitation, plans, specifications, engineering, architecture, uses, tenants, sale prices, rental rates, the Project or the Project DDA. P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-12-15 Catellus Project Study.DOC 7 5. Oblil!ations ofthe Developer. During the Negotiation Period, the Developer shall proceed diligently and in good faith to perform the following: a. Consider the redevelopment of the Project, including without limitation the selection of tenants and the design of improvement elements as appropriate for the Project; b. Review and provide the Project Study information described in Section 4 and provide comments on draft versions of any CEQA document prepared as part of the Project Study and the Project DDA and, if acceptable to the Developer, submit an executed copy of the final form of the Project DDA to the Agency Executive Director on or before the end of the Negotiation Period (or such later date corresponding to an authorized extension of the Negotiation Period); and c. Consult with the Agency on a regular basis and keep the Agency advised on the progress of the Developer in completing its obligations under this Agreement; and d. In the event that following the Effective Date the Developer may in its sole discretion acquire any of the County Property, the Developer shall not cause the displacement of any residential occupant or tenant in lawful possession on any such parcel of County Property during the Negotiation Period without first obtaining the written permission of the Agency. 6. Al!encv Not to Nel!otiate with Others. a. The Agency, currently, deems the disposition of the County Property and the redevelopment of the County Property for a feasible Project to be appropriate and the Developer appears to be well qualified to undertake the task of planning the details for the acquisition of all of the Property, including the sale of the County Property to the Developer. b. During the Negotiation Period, the Agency shall not negotiate with any other person or entity regarding either the disposition of any of the County Property or the redevelopment of the Project. 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 County Property (in whole or in part) or development of the Project in the Study Area, and from discussing other redevelopment proposals for the Study Area with third persons or entities; provided, however, any person may submit and the Agency may consider any proposal for the disposition and/or redevelopment of any lands adjacent to the Study Area. c. During the Negotiation Period, the Agency may in its sole discretion, elect to acquire any portion of the County 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 County Property as may be offered for sale or which otherwise may become available for acquisition during the Negotiation P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03.12-15 Catellus Project Study.DOC 8 Period and the Agency shall not be deemed to have appropriated or made available any funds therefore. d. 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 Study Area. 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. 7. Al!encv Coo Deration. 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 County Property and Study Area 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, and the redevelopment of the Study Area, including, but not limited to, conceptual plans or studies of vacation, realignment or abandomnent of public property and facilities, the installation and improvement of public improvements and environmental evaluation of the Proj ect. c. Use its best efforts to provide the Developer with limited access to the County Property, and/or the Study Area, during the Negotiation Period, for the purpose of conducting customary due diligence investigations thereon, including enviromnental investigations of the subsurface or any structure thereon, subject to the terms and conditions of a separate environmental investigation and inspection license agreement to be agreed upon by the Agency and the Developer, at some later date, if applicable. d. Use its best efforts to provide Developer with information or copies of studies performed or to be performed relative to the Study Area. 8. Nel!otiation of ProDertv DDA. During the Negotiation Period, the Agency and the Developer shall negotiate diligently and in good faith to prepare and enter into the Project DDA for those portions of the County Property located within the City of San Bernardino. 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 on the County Property, prior to the expiration of the Negotiation Period. P;\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Arnend 2003\03-12-15 Catellus Project Study.DOC 9 9. Consideration for this Al!:reement and Reservation of Ril!:hts. In consideration for the Agency entering into this Agreement, the Developer will undertake its obligations under this Agreement and provide the Agency with copies of all studies and reports and other information generated by the Developer or its consultants regarding the Project. The parties agree that, if this Agreement terminates for any reason, the Agency fails to extend the Negotiation Period, or the Project DDA is not finally approved by the Agency, for any reason, neither party shall be under any further obligation to the other regarding the disposition, acquisition, reuse, redevelopment or development of the Project or the Study Area. 10. Planninl!: and Desil!:n: Related Acknowledl!:ments ofthe Parties. Certain development standards and design controls for the Project may be established between the Developer and the Agency in negotiation of or in the final form of the Project DDA, but it is understood by both parties that the Project and the redevelopment of the Study Area must conform to City of San Bernardino development, design and architectural standards. The Agency shall fully cooperate with the Developer's professional associates in providing information and 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 or the Study Area, itself, by either the Agency or the City. 11. 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 County 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 County Property to the Developer, if terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any business records described in Government Code Section 6254.15, as may be provided by the Developer to the Agency or its consultants, to the maximum extent permitted by law. The Agency shall not provide a copy of any business record protected from disclosure under Government Code Section 6254.15 to a third party, unless the Developer first consents to such disclosure in writing or, unless a court of competent jurisdiction compels disclosure. 12. Developer ACQuires No Interest in Real Property or in the County Property. The Developer hereby acknowledges that it has not acquired and will not acquire, by virtue of the terms of this Agreement any property right or property interest or any legal or equitable interest in the County Property. Furthermore, nothing in this Agreement shall be deemed to be a commitment or understanding by the Agency to assist the Developer to acquire any of the County Property. P:\Clerical Services Depl\Margaret\Agreements-Amendment9\Agrmts-Amend 2003\03-12-15 Catellus Project Study.DOC 10 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 or ancestry in undertaking its obligations under this Agreement. 14. Compliance with Law. The Developer acknowledges that the Property DDA, if mutually agreeable terms are established, is likely to require the Developer (among other things) to carry out the construction of certain improvements in conformity with all applicable laws, including all applicable planning and zoning laws, environmental planning and safety laws and federal and state labor and wage laws. 15. Required Approvals. No Project DDA between the parties shall have any force or effect nor shall the Agency be deemed to be a party to any agreement for the disposition of real or personal property to the Developer, until the terms and conditions of the Project DDA are considered and approved by the governing body of the Agency, following the conclusion of a public hearing, as required by law. 16. Press Releases. The Developer agrees to discuss any press releases it may propose relating to the Property with the Agency Executive Director or his/her designee, prior to publication, to assure accuracy and consistency of the information. 17. Notice. All notices required hereunder shall be presented in person or by FAX and confirmed by First Class certified or registered United States mail with return receipt requested. Notice shall be deemed confirmed by United States mail effective the second business day after deposit with the United States Postal Service. Notice by personal service shall be deemed effective upon delivery. Either party may change their address for receipt of notice by notifying the other party in writing. TO DEVELOPER: Catellus Commercial Group, LLC 4000 Westerly Place Newport Beach, California 92660 Attn: Pat Cavanagh, Senior Vice President (949) 251-7929 P:\Clerical Services Dcpt\Margaret\Agreements-Amendmenls\Agrmts-Amend 2003\03-12-15 Catellus Project Study.DOC 11 TO AGENCY: Redevelopment Agency ofthe City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn: Executive Director (909) 663-1044 18. Acceptance of Aereement bv the Developer. The Developer shall acknowledge its acceptance of this Agreement by delivering three (3) counterpart executed copies of this Agreement signed by at least two (2) authorized officers of the Developer. The delivery by the Developer to the Agency of the executed counterpart copies of this Agreement shall be completed within thirty (30) days following the approval of this Agreement by the governing board of the Agency or thereafter this Agreement shall have no further force and effect with respect to either party. 19. Authoritv. Each signatory to this Agreement represents and warrants that he or she has the authority to execute this Agreement on behalf of the principal whom he or she purports to represent. 20. Optional Termination bv Developer or bv Aeencv. a. Provided the Developer is not in default, the Developer may in its sole and absolute discretion exercise an election to suspend the Project in the Study Area, and this Agreement shall terminate and the parties shall be mutually released from any further obligations hereunder; provided that the Developer gives forty-five (45) days written notice to the Agency. b. Provided the Agency is not in default, the Agency may in its sole and absolute discretion exercise an election to suspend the Project in the Study Area, and this Agreement shall terminate and the parties shall be mutually released from any further obligation hereunder forty- five (45) days following written notice to the Developer. 21. Defaults and Breach - General. Failure or delay by either party to perform any material term or provIsIOn of this Agreement shall constitute a default under this Agreement; provided however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within thirty (30) calendar days after receipt of written notice specifYing such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifYing the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the P:\Clcrical Services Dept\Margaret\Agreemenls-Amendments\Agrmts-Amend 2003\03-12-15 Calenus Project Study. DOC 12 injured party shall have no right to exercise any remedy for a default as set forth herein without delivering the written default notice as specified herein. Any failure to delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with such a default. In the event that a default of either 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. In the event of a breach, the party who is not in default shall be entitled to seek injunctive relief or specific performance against the defaulting party by initiating legal proceedings but damages shall not be sought by any party or awarded to any party. The prevailing party in any such legal proceeding shall be entitled to recover its reasonable attorneys fees, either as part of such legal proceedings or in a separate legal action 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 "attorney's fees." 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) days following the date of service of the notice of termination on the other party. 22. Governing: Law: Venue. The parties hereto acknowledge that this Agreement has been negotiated and entered into in 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. PartialInvaliditv. 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. P;\Clerical Services Dept\Margaret\Agreements-Amendmcnts\Agrmts-Amcnd 2003\03-12-15 Catcllus Project Study.DOC 13 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 not 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 Al!reement. This Agreement (including Exhibits "A" through "B" 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. Time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of and a non-curable (but waivable) default under this Agreement by the party so failing to perform. 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. All exhibits referred to in this Agreement are attached hereto and incorporated herein by this reference. P:\Clerical Services Dept\Mlll'pI'et\Agreements-Amendments\Agrmts-Amend 2003\03-12-15 Catellus Project Study.DOC 14 IN WITNESS WHEREOF, CatelIus Development and the Redevelopment Agency of the City of San Bernardino execute this Redevelopment Project Study and Redevelopment Assistance Agreement on the dates indicated next to each of the signatures of their authorized representatives as appear below. DEVELOPER CatelIus Development, a Dated: By: AGENCY Redevelopment Agency of the City of San Bernardino Date: By: Gary Van Osdel Executive Director APPROVED AS TO FORM: Agency Special Counsel P:\Clerical Services DepI\Margarel\Agreements-Amendmenls\Agrmts-Amend 2003\03-12-15 Catellus Project Study.DOC 15 EXHIBIT "A" County PrODertv P:\CIcrica1 Services Dept.\Margard\AgToemcnts-Alncndux:nts\Agrmts-Amend 2003\03-12-15 Catellus Project Study,DOC CITYLlMlTS r-~' PORTION OF MT. VERNON CORRIDOR RDA PROJEU (g). Not to Scale EXHIBIT "A" COUNTY AREA r EXHIBIT "8" MaD of Study Area P:\C1erical Services Dept\Margaret\Agrt:emcnts-ArrEndments\Agrmls-Arnend 2003\03.12-15 Catellus Project Study.DOC CITY LIMITS PORTION OF MT. VERNON CORRIDOR RDA PROJEIT '-l Not to Scale EXHIBIT "B" STUDY AREA