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HomeMy WebLinkAboutCDC/2007-12 . 1 2 3 4 5 6 7 8 9 10 11 LNR RESOLUTION NO. CDC/2007-12 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 (THE "AGENCY") TO EXECUTE THE EXCLUSIVE RIGHT TO NEGOTIATE AND REDEVELOPMENT PROJECT STUDY AGREEMENT BY AND BETWEEN THE AGENCY AND LNR, SAN BERNARDINO, LLC (THE "DEVELOPER") RELATED TO THE CAROUSEL MALL (CENTRAL CITY REDEVELOPMENT PROJECT AREA) WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") and San Bernardino, LLC ("Developer") own certain property within the Central City 12 Redevelopment Project Area (the "Project Area"), as generally depicted in Exhibit "A" attached to 13 the Exclusive Right to Negotiate and Redevelopment Project Study Agreement by and between the 14 Agency and the Developer ("2007 Agreement") (collectively, the "Site"); and 15 WHEREAS, the Agency and the Developer are interested in exploring the development 16 feasibility of the Site so as to foster the community economic development goals and objectives of 17 the City of San Bernardino (the "City") as it relates to the Redevelopment Plan for the Project 18 Area; and 19 WHEREAS, the Developer is qualified to assist the Agency to undertake the development 20 feasibility for a coordinated and economically sustainable redevelopment project on the Site, which 21 will require specific study, evaluation and planning by the City and the Agency, as applicable, of 22 appropriate and feasible community redevelopment program alternatives; and 23 WHEREAS, in accordance with the provisions of the California Environmental Quality Act 24 ("CEQA"), the 2007 Agreement is exempt from the provisions of CEQA. 25 NOW, TIIEREFORE, TIIE COMMUNITY DEVELOPMENT COMMISSION OF TIIE CITY 26 OF SAN BERNARDINO DOES HEREBY FIND AND DETERM1NE, AS FOLLOWS: 27 Section 1. The Community Development Commission of the City of San Bernardino 28 ("Commission") hereby approves the 2007 Agreement by and between the Agency and the , 1 Developer in the form as presented at the meeting of the Commission at which this Resolution is 2 adopted and hereby authorizes the Executive Director ofthe Agency to execute the 2007 Agreement 3 on behalf of the Agency together with such technical and conforming changes as recommended by 4 the Executive Director of the Agency and approved by the Agency Counsel. 5 Section 2. The Commission hereby finds that the 2007 Agreement is exempt from the 6 CEQA. 7 Section 3. 8 III 9 III 10 III 11 III 12 III 13 III 14 III 15 III 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III The Resolution shall become effective immediately upon its adoption. P.IA"......l~oIR.-cnI".inn.J'no7ln~_07"071_NR ~"n R~;nn_ LLC_CDC Reso.doc 2 , 1 2 3 4 5 6 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 (THE "AGENCY") TO EXECUTE THE EXCLUSIVE RIGHT TO NEGOTIATE AND REDEVELOPMENT PROJECT STUDY AGREEMENT BY AND BETWEEN THE AGENCY AND LNR, SAN BERNARDINO, LLC (THE "DEVELOPER") RELATED TO THE CAROUSEL MALL (CENTRAL CITY REDEVELOPMENT PROJECT AREA) 7 I HEREBY CERTIFY that the foregoing Resolution was du1y adopted by the Community 8 Development Commission of the City of San Bernardino at a i oint rel';ular meeting 9 thereof, held on the 7th day of May , 2007, by the following vote to wit: 10 Commission Members: 11 ESTRADA 12 BAXTER 13 BRINKER 14 DERRY 15 KELLEY 16 JOHNSON 17 MC CAMMACK 18 Abstain Absent Aves --1L Navs -X- x x x -1L x 19 20 21 The foregoing resolution is hereby approved this cf77r day of May ,2007. 22 23 24 . Morris, hairperson ity Development Commission of the City of San Bernardino 25 Approved as to Form: 26 27 By: 28 ~:::Ii!! P:lAllelldas!ResolutioMl2007/0S-07-07 LNR San Bemardino.ILC-CDC Reso,doc 3 ! ~,(\ ,. "J -: "'_'. - J 2 I'.: - " REDEVELOPMENT AGENCY . OF THE cn"\' OF SA..~ BERNARDINO REDEVELOPME1\'T PROJECT STUDY AND REDEVELOPMENT ASSISTA1~CE AGREEMENT (I~NR San Bernardino, LLC: CAROUSEL MAIL) THIS REDEVELOPMENT PROJECT STUDY A.ND REDEVELOPlYfENT ASSISTANCE AGREEMENT is dated as of May 7, 2007 (this "Agreement"), and is entered into by and between LNR San Bernardino, LLC, a California limited liability company (the "Developer"), and the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency"), in light of fue facts set forth in the following recital paragraphs: RECITALS A. Tbe Agency desires to encourage and effe(,,1:uate the redevelopment of certain real property, known generally as the Carousel Mall and comprising approximately forty-four (44) acres, generally bounded by 2nd Stmet to the south, North "E" Street to the east, East 4th Street to the north, and the convergence of West 3'd Street and "G" Street to the west (the "Site'"), that is depicted on the "Study Area Map" attached hereto as Exhibit "A"; and B. Th-~ Site lies v..ithin the Agency's Central City Projects, Redeyelopment Project Area (<he "Project .1.r"a"), aod is subject to me Project Area's governing redevelopment plan (me "Redevelopment Plan"); and C. TIle Site consists of three (3) vacant department stores, retail shop spaces, a parking lot, a common area, and two (2) vacant auto service centers; and D. The Agency ownS tile parking lot and the City has owned and continues to own the common area on the Site, as depicted in Exhibit "B" (collectively, the Agency ownerships of certain. real property and the City ownerships of certain rt'-al property included witbio the REA (as herein deu.t)('Al) are referred to herein fer c-onvenience purposes as the ., Agency Property", ~mbjecl tn th".( ct:rt&in Declaration of Restrictions, Construction, Operation, Reslliction and Eascwe--llt Agret-'ment dakd December 24, 1970, and entert>A1 into by and between: the Agency; John S. Griffith & Co" and ('wci-Twuer Co.: J,C. Penney Company, Inc.; t-..lonwar Property Corporation; The Harris Company: the City of San Bernardino; Upham Development Company; and Connecticut Generall'vlortgage and Realty Investments (the "REA"); and E. Pursu.~ut to that cert:lin Option to Purchase Agreement, executed March 29,2005, by and betvleen Street CaprtaJ Corporation and (1) Central City Company, LLC, Iii) Central City COlJJpkx, 1.LC, and (rll) Curci-Turner Company (collectively, "Central City,"), Stleet Capital Corporation :is the predecessor in interest to the Developer had the option to purchase certain real property anli bwldlllgS comp1ising the Site, including the department store and auto service center formerly occl.pied by Montgomery Ward, and the retail shop spaces (collectively, the l.41~.wo-- Jm~O,i _ L . '.....' './-, /-:; ,\j, -, "Central City Buildings"), which were ov.ned by Central City. The Developer as the successor in interest to Street Capital Corporation exercised the option to purchase the Central City Buildings aud has closed escrow with respect thereto on February 8, 2006. The Site, including the three (3) department storcs, the Central City Buildings, and the two (2) auto service centers are owned by three (3) separate and distinct third parties, as depicted in Exhibit "B" (the "Private Property"). The department store co=only known as the "Harris Building" is owned by EI Corte Ingles S.A., a Spanish company. TIle department store and auto service center formerly occupied by Ie Penney (collectively, the "IC Penney Properties"), is o'\\'Ued by Upham Development Company, a Texa., limited partnership; and F. The Developer proposes to determine the feasibility of developing the Site as a mixed use development comprising up to 750 single-family attached/detached dwelling units and up to 135,000 square feet of commercial/retail space while recognizing and retaining the Project Area's unique architectural fabric and historic building characteristics all as illustrated in the draft Specific Plan (the "Specific Plan'') as filed with the City of San Bernardino (the "City'') in February 2007 (collectively. the "Project"), and to negotiate with the Agency the potential terms of an Owner Participation Agreement or other mutually acceptable Disposition and Development Agreement (the "Project DDA'); and G. The Agency is prepared to consider and study the prOVISiOn of certain redevelopment assistance to the Developer which has not been identified as of this date to facilitate the a.~sembly of the Private Property with the Agency Property into developable parcels ofland so as to foster the community economic development goals and objectives of the Agency and the City, including the elinl.ination and 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, the land \vithin the perimeters of the Site, as depicted in Exhibit "c" which includes a copy of the site plan excerpted from the draft Specific Plan (the" Study Area") for such study; and H. The Developer is qualiii1'd to assist the Agency to undertake the study of specific proposals and plans [01- a coordinated and economically sustainable redevelopment project in the Project l\rea, including the Study Mea, which will require specific study, evaluation and planning by the Cily and Agency, as applicable, of appropriate and feasible commuuity redevelopment program alternatives; and 1. The pr('.decessor in interest to the Developer had previously obtained an exclusive negotiating agreement with the Agency substantially similar to this Agreement in form and content: said prior agreement was dated a~ of July 5, 2005, and expired pursuant to its terms on November 2, 2006; it lS the intent of the Agency and the Developer that this Agreement shall supersede said expired prior agreemeut and shall,update the facts and circumstances which have changed due to the passage of time since the approval and subsequent tenuination of the prior agreement; and J. The Developer and the Agency believe it is appropriate for the Agency, in consult.1.tion with the Developer, to review by Agency staff those studies, reports and investigatioos conduded by the Developer as the Project Study Costs as part of a program for the 141$-00Q -l"!'.3lj;~O.1 2 ~ ",fA '.f. ,!.', ".' L~} L study of feasible redevelopment programs for the Sturly Area, subject to the terms and conditions al; set forth below. NOW THEREFORE, IN CONSIDERATION OF THE J\.fUTUAL COVENANTS AND PROMISES SET FORm HEREIN, ruE DEVELOPER AND THE AGENCY HEREBY AGREE.. AS FOLLOWS: 1. The Negotiation Period and the Term of Agreement. a. The rights and duties of the parties established by this Agreement shall commence following its approval by the governing body of the Agency when it has been fully executed by the parties within the period of time authorized in Section 17 (such date being the "Effective Date"). This Agreement "ill continue in effect until a date which is set forth in subparagraph b. below and as may be extended as provided therein. Such time period during which this Agreexuent shall be in dIcct (including any extensions of time approved by the Agency) is referred to as the "Negotiation Period". b. lms Agreement shall automatically terminate, without further notice or action, and be of no further force or effect as of the close of business on January 31, 2008, unless prior to that time: (1) the parties execute the Project DDA, as described below, which will include, without limitation, other relevant conunumty redevelopment covenants acceptable to the Agency and such other terms and conditions mutually acceptable to the parties, in which case this Agreement shall ter.olinate on the effective date of the Project DDA; or, (2) the parties each agree to extend the term of this Agreexnent in writing for one (1) additional extcnsion period \Jot to exceed one hundred twenty (120) calendar days if(i) it is determined by the Agency Executive Director that satisfactory progress is being made to complete the activities to be perfonTI<:;d by the Developer set forth w. Section3, and (ii) such extended term is approved by the offic:ial action of the governing body of the Agency as an arnendment to tbis Agr~>t.>ffienl; or, (3) 20, as applicable. a pany terminates this Agreement as provided under Section 19 or Section 2. Developer Acknowledgments. a. The Developer hereby acknowledges and agrees that no provlSlon of this Agreement shall be d~en.led to be au. 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 Privatc Property to the Developer, A.ny studies relating to the Study Area, the Agency Property or the Private Property, and the Project 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 b~>nefit of the Agency, or the elly. lAo19.(.*_lj':!t20.i ., v " . 1'. , . ~ :. ,", " _ _, . v / ':: / -~. ~ b. The qualifications and identity of the Developer and its principals are ofpilI1icu1ar concern to the Agency. The Agency relied Oll 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, witho\lt the prior v",itten approval of the Agency Executive Director, which approval shall not be unreasonably withheld, provided 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 Developer. Notwithstanding the foregoing, Developer shall have the right to assign this Agreement and its rights here\Ul.der to an entity, which controls, is controlled by or is under common control \\'ith 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 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 infonnation. Upon the occurrence of any significan.t 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, pdor to the time of such change, the Agency may terminate this Agreement by serving written notice of such termination, referencing this Section, on the Developer. 3. Project Study. a, Tne Developer is determining the feasibility for the redevelopment of the Project proposed by the Developer (the "Project Study"). The Developer has caused the initial phase of the Project Study to occur, by the filing with the City in February 2007 of the draft em'ironmental impact report ("Draft EIR" or "ElR" as applicable) as this term is defined under CEQA. The Agency and the Developer shall use their best etlorh to cause the period for public review of the Draft Em. to commence within DiIlety (90) calendar days, follo\\oing the Effective Date. As used herein, the term "best efforts basis" and "best efforts" whether applicable to the Developer or the Agency or any other person or entity not a party to this As>reement, shall mean that such entity, person or party shall pe1fonn the required action item in a timely and diligent manner and shall be responsible to incur reasonable costs, unless otherwise limited in a particular instance, in an effort to accomplish the intended result but without any guaranty or warranty as to the final outcome or result of any such effort~. The Draft EIR as prepared by the Developer shall be reviewed by the Agency staff for general conformity with t!tis Agreement. The CEQA process was initiated with the distribution of a Notice of Preparation on May 25, 2006, and such CEQA process shall continue with the distribution of the Draft ElR for public re"iew as set forth above. Subject to ~he privilege of the Developer to suspend the Project Study prior to its completion as set forth m Section 19, each of the parties presently believes that the Project Study can be completed, including without LA19..(lQO- :7JII:0_] 4 "."'; ,.."'\'. , . L ,_,,; , " ': ~ ,,\' , )...."".'1 -", - t ~ \Ci. L"-: 6 limitation, the conduct of a public hearing on a final ElR document for the Project, within eight (8) months follov.ing the Effective Date. b. The Developer may modify the description of the Project in non-substantial ways, at any time; provided however, that substantial modifications of the description of the Project shall be subjel't to the approval of the Co=unity Development Conunission (the "Commission") acting;\5 the governing board of the Agency, at its sole discretion. The Agency and the Agency Executive Director may request that the Developer consider modifications to the description of the Project from time-to-time. The final form of each such modification shall be subject to the approval of the Commission on behalf of the Agency and the Developer, each at their sole discretion. c. 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. d. All third-party consultants, if any, retained by the Agency to review any study, report or document prepared by or on behalf of the Developer 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 fOf any purpose. e. [ RESERVED - NO TEXT] f. Commencing as of the Effective Date, the Developer and the Agency shall proceed to negotiate the fulal form of an agreement, in which the specific terms for the redevelopment of the Site may be set forth on terms mutually acceptable to the parties as may be contained in the Project DDA. Nothing contained herein shaH commit either the Developer or the Agency to accept the fInal form of the Project DDA and the Developer recognizes and agrees that no final Project DDA can be executed by the Agency unless and until approved by the governing board of the Agency at its sole and absolute discretion at a public meeting duly noticed under applicable California law for such purpose. g. In each case where the Developer is required to submit an item of i.uformation to the Agency EXC<.,'Utive Director, the Developer shall submit such item of information described in 1his Section to the Agency Exccutive Director, within the time periods set forth above. Within twenty (20) calendar days after receipt of any such information, the Agency Executive Director shall detelIDwe whether such information is satisfactory. If the specific item of iD.formation is unsatisfactory tn the Agenl'Y 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 of receipt of such information, the information shaH be doemed submitted in acceptable form by the Agency. The determinations to lAl"-QOO - ]~31lZ0.1 'i ! \/.4 v '. ". - . i.e",1 ,:; : ~ C. _ L;>t c~.:J~~~.rv ,".'"',c;~ i\JC. L 3 7 7 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 or the Project DDA. 4. Project Study Costs. For the purposes of this Agreement, "Project 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 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 and/or the Agency. Pwject Study Costs shall include third party costs incurred by 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, traffic consultant fees, architectural fees, accounting fees and the like. In addition to the Project 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 sucb party engages. 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, based on staffing unavailability, to review the Project Study. The Developer further recogW.zes that it will be required by the Agency as the "lead agency" under CEQA, to enter into a separate agreement for all additional costs that may be incurred in such "lead agency" capacity to review and process all CEQA documents to be prepared by or on behalf of the Developer as the Project Study Costs. 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, including -without limitation the selection of tenants and the design of improvement elements as appropriate for the Project; and b. Review and provide the Project Study infonnation described in Section 3 and provide all draft versions of any CEQA document required by the City to be prepared by the Developer 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 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 obligatious under this Agreement. Without limiting the effect of the foregoing, the Developer shall submit a written report to the Executive Director of the Agency on or before the conclusion of each ninety (90) day period from aud after the Effective Date of U19.oo()--l'm<:C_1 't) , \1.', U V'_..l,", ,L'-,'.: . . ",'j),H", . - ',;'. ~ : \ ,^' 4.J / A ,:1 - . this Agreement. Such report shall set forth the activities and accomplishments of the Developer iD. furtherance of the processing of the Specific Plan, the EIR, the negotiation of the Project DDA, and the acquisition of other properties, if any, which the Devleoper iD.tends to iD.clude within the Specific Plan. 6_ Agency Not to Negotiate with Others. a The Agency, currently, deems the disposition of the Agency Property and the redevelopment of the Site 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 the entire Site, iD.cluding the sale of the Agency Property to the Developer. b. Dllring the Negotiation Period, and subject to the Agency's compliance Vvith the California Community Redevelopment Law ("CRL") and the Agency's Owner Participation Rules regardiD.g the rights of owners and tenants, the Agency sha11 negotiate exclusively with the Developer with respect to the Site during the Negotiation Period, the Agency shall not negotiate with any other person or entity regardiD.g either the disposition of any of the Agency Property or the redevelopment of the Project on the Site and/or the Study Area. The term "negotiate," as used herein, shall be deemed to preclude the Agency from acceptiD.g any other offer or proposal from a third party to either acquire from the Agency any iD.terest iD. any of the Agency Property (in whole or in part) or redevelop the Site, and from considering other redevelopment proposals for the Site 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 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 mterest located within the Site when such third party is exercising their rights pursuant to the Agency's Owner Participation Rules as required under the eRL. Such exempted transactions from the limitations of this Section shall include the various business tenants presently or hereafter located in the Central City Buildings_ Nothing contained hereiD. shall preclude or limit the ability of the Agency to negotiate with any owner participant for the acquisition of pomons of the Site by such owner participant as may be deemed necessllfY to be undertaken by the Agency in the exercise of the rights of such owner participants under the CRL or for the extiDguishment of the contractual rights of such owner participants under the REA. 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. Nothmg 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 othelWise 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 a~uire 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 Site. As may be further provided in the Project DDA, L419..JOO.. 1~~g2(I.l 7 ....",".' " . 2 ::: ".:;'.',' >.1.- '. n: ~ t..?7 c )' the Agency may be requested, however, to consider in good faith, consistent with any applicable provision of law, any request to the Developer that the Agency exercise its power of eminent domain with regard to any particular parcel or parcels comprising the 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 Agen,,'}' exercise its power of eminent domain unless and until the governing board of the Agency (the "Agency's Board") bas duly considered the evidence before it as to whether the affected property is necessary for a public use and, in the exercise of the Agency's Board's sole discretion, has adopted a resolution of necessity after a duly DOtice public hearing, and ha.~ otherwise complied ",ith the provisions of the Californian Eminent Domain Law, 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 proceeding, 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 Dot 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 Site, except for the Study Area. 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 conceroiJlg its activities, goals and matters of a similar nature, or as required by law to be disclosed upon request. 7. 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 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 plaIls, as may be proposed by the Developer for the Project, and the redevelopment of the Site, including, but not limited to, conceptual plans or studies of vacation, realignment or abandonment of public property and facilities, the installation and improvement of public improvements and environmental evaluation of the Project. c. Use its best efforts to provide the Developer with limited access to those portions of the Site owned by the Agency and the City and referred to herein as the Agency Property, during the Negotiation Period, for the purpose of conducting customary due diligence investigations thereon, including environmental 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. lA'....IXJO_li;.'i::C'.l R , \/4 v, " , I.,' ~ ' ~ .'. !L .',' - \; "'"" I'" e-Cj! 1(; d. Use its best efforts to provide Developer with information or copies of studies performed or to be performed relative to the Project Area. e. Use its best efforts to fo=alize 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, including the development of the Specific Plan as on file with the City, in exchange for the release of the Agency and the City from the REA, under which the City is currently obligated to pay approximately one million dollars ($1,000,000) annually in maintenance and management expenses. f. Use its best efforts to assist the Developer in obtaining the entitlements necessary to develop the Project on the Site but without the incurring of any independent consultant or legal expenses. g, To the extent required by law, the Agency shall use its best efforts to commence the process requrred under the CRL and other applicable law for the agency to provide notices of owner participation rights, as a condition precedent to the ability of the Agency to acquire real property interests through a voluntary acquisition or to consider adopting a resolution of necessity and utilizing its power of eminent domain. Any such acquisitions, including the costs related thereto for appraisals, expert witnesses and legal expenses, shall be with funds provided by the Developer all as may be set forth in a separate written agreement or the Project DDA h. 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, including, without limitation, any zoning changes, adoption of a Specific Plan, General Plan amendments, a Statutory Development Agreement, and all other entitlements necessary for the development of the Project on the Site, suggested by the Developer in its proposed conceptual development plan, referred to in Section 3e(B) above, or at any other time during the Negotiation Period. 8. Negotiation of Project DDA. During the Negotiation Pt-Tiod, the Agency and the Developer shall negotiate diligently and in good faith to prepare and enter into the Project DDA. Both of the parties shall exercise best efforts to wmplete discussions relating to the final terms and conditions of the Project DDA and such other matters, as IIlay be mutually acceptable to the parties for the redevelopment of the Project OIl the Property, 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 stIch negotiations or to execute any final Project DDA. 9. 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 I:eports and other informatioIl gffierated by the Developer or its consultants regarding the Project or the Site. Tne 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 LAH-o)Y.l..17E..0.1 9 , . v 'i,.. L . !':'i -. -".J., .'\":' 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 Site. 10. PlaDn:ing and Design; Related Acknowledgments of the 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 Site must conform to 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 or the Site, 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 Property to the Developer, The parties recoguize that such financial disclosures may contain sensitive infonnation relating to other business transactions of the Developer, that the disclosure of such information to third parties could impose commercially unreasonable andlor anti-competitive burdens OIl the Developer and, correspondingly, diminish the value or fiscal benefit that may accrue to the Agency upon the disposition of the Property to the Developer, if !elms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any of 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. Develope!' shall have the right to re(juest that the City of San Bernardino or the Agency restrict access to documents that may be determined to be exempt from disclosure pursuant to the applicable prOvisions of the Public Records Act and, in that event, Developer shall indemnify, defend (subject to the approval of Developer's legal counsel by the Agency Counsel), and hold harmless, including attorney's 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. The costs, salary and expenses of the City Attorney and members of his office in representing the City and/or the Agency shall be considered as "attorney's fees" for the purposes of this paragraph. 12. Nondiscrimination. The Develop(:]" shall uot discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin, sexual orientatioD, or ancestry in undertaking its obligations under this Agreement. Vl'MOO~ li~imtl 10 ",1.',\; 'I' . " ~ : :, (;j ':j - r.,: : ~ -,; .,,_ '\ ~:. i? ~ 13. Compliance ",ith Applicable Law. The Develop~-r acknowledges that the Project DDA, if mutually agreeable terms are established, is likely to require the Developer (among other things) to carry out the COD.stroction 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. 14. 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 couditions of the Project DDA are considered aud approved by the governing body ofthe Agency, following the conclusion of a public hearing, as required by law. 15. Press Releases. The Developer agrees to discnss any press releases it may propose relating to the Site with the Agency Executive Director or hislher designee, prior to publication, to assure accuracy and consistency of the information. 16. Notices. 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: LNR San Bernardino, LLC Attn: Jim Cottrell, Senior V.P. Attn: J. Patrick Galvin, CPO General Counsel 4350 Yon Karman Avenue, Suite 200 Newport Beach, Califomia 92660 (949) 885-8500 TO AGENCY: Redevelopment Agency of the City of San Bernardino 201 North "E" Street., Suite 301 San Bernardino, California 92401 Attn.: Executive Director (909) 663-1044 lA19..ooo- 1'3SZO.1 11 v . " ~ =.C: = : ;. -', ." - C" 17. 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 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) caleudar days following the approval of this Agreement by the Agency's Board or thereafter this Agreement shall have no further force and effect with respect to either party. 18. Authority. TIlls Agreement may be executed in counterparts, and when fully executed by the parties, each such counterpart shall be deemed to be one 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. 19. 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 Study, and this Agreement shall terminate and the parties shall be mutually released from any further obligations hereunder; provided that the Developer gives thirty (30) calendar days' prior written notice to the Agency and has paid all amounts of Agency expenses that were incurred by the Agency in reliance upon any separate written agreement or agreements, which may be entered into, wherein the DevelopeJ: agrees to reimburse the Agency for specifically budgeted and identified tbird party independent consultants, which the Agency may desire to retain due to the unavailability of staff to review the Project Study, 20, 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 OCCUlTed, shall give written notice of default to the party in default and specifYing the alleged default. Delay in giving such notice shall not constitute a waiver of auy default nor shall it change the time of default; provided, however, the 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 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. LAl~.QO.:)...1,:;g::() \ 12 .......'4 \/ . L.'.: ~ .:::. .. ., = ~ ~,.~ , \J", ,,'-':. C~; < t In the event that a default of either party may remain uncured for more than thirty (30) calendar days following "rritten 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 any other appropriate remedy by initiating legal proceedings. The successful party in any such legal proceeding shall be entitled to recover its reasonable attorney's fees as an element of its damages, either as part of such legal proceedings or in a separate legal action to recover such attorney's fees. The costs, salary and expenses of the City Attorney and members of his office in entorcing 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) calendar days following the date of service of the notice of termination on the other party. 21. (',overning 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. 22. Partiallnvalidity. If any terro, 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 pornon 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. 23. No Intent to Create Third Party Beneficiaries. The parties mteud that the rignts 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 Agl'eemell.t. 24. 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 IAI9-000 - pJi>;O,j 1:1 \; "'-. ~ . c ,'-,', , .'> ~ - ,,\J \. ~> !.. ~ i , , . performed herein shall be deemed to be au extension of the time for performance of any other obligation or act to be perf011lled under this Agreement. 25. Entire Agreement. This Agreement (including all Exhibits 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 i.ustnllTlent. 26. Time of Essence. Except as provided in Section 19 of this Agreement, time is strictly of the essence with respect to each and every term, condition, obligation aud provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions bereofby 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. 27. 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 si.ugular shall include the plural and the masculine shall include the feminine and Vlce versa. This AgreE-ment shall not be consttued 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. 28. Additional'Matters. To the greatest possible extent, the provisions of this Section 28 shall be read consistent with the provisions of Section 1 through Section 27 of this Agreement. However, to the extent that there is any inconsistency between the provisions of this Section 28 and the provisions of Section 1 through Section 27, then the conflicting provisions in. this Section 28 shall supersede and control. a. Since July 5, 2005, the scope of the Project has been refined, such that the Developer now proposes to determine the feasibility of developing the Site as a mixed-use development as further set forth in Recital F., and to negotiate with the Agency the potential terms of the Project DDA. b. The Agency and the City recognize that the Project is a major catalyst for the successful and effective redevelopment of downtown San Bernardino. l-1tCMlOO - 1'1~$:!01 14 \,.'A 'J , L'," - './'-' , : - ~" ~; \r': 1'::-'; " v, - of ' 'r, c. Notwithstanding the provisions of Section 6.e. of this Agreement, the Agency shall use its best efforts to protect any information submitted by the Developer as confidential or proprietary infonnation, as more particularly provided in Section 11 of this Agreement. d. Prior to the termination date of this Agreement, the Agency and the Developer shall diligently and in good faith pursue the following matters to such conclusion as may be acceptable to the Agency WId the Developer in the sole discretion of each such party: (1) certification by the Agency's governing board, as the lead CEQA agency, of the ELR with respec:t to the Project in accordWlce with CEQA, (2) approval by the Mayor and Common Council of the City of the Specific Plan for the Project, (3) approval by the Mayor and Common Council of the City of a Tentative Tract Map encompassing the Project, and (4) approval by the Mayor and Cornmon Council of the City and the governing board of the Agency of the Project DDA for the Project, subject to all public hearing requirements with respect to each of said matters identified as items (1) through (4), inclusive. IN WlTNESS WHEREOF, the undersigned have executed this Agreement on the dates indicated next to each of their signatures as appear below. DEVELOPER LNR SAN BERNARDINO, LLC a California limited liability company By: LNR CPI A&D Holdings, LLC a Delaware limited liability company, its member By: um. Commercial Property Investment Fund Limited Partnersbip a Delaware limited partnersbip, its member Date: ~/"::,O/Ol By: LNR CPIFund OP, LLC ;':nO;::~'" ""2 rom,,",y, n, """", By: 'H~ . ~. Name: . ~NA S. SANDERS Its: VICE PRESIDENT AGENCY Redevelopment Agency of the City of San Bernardino, a public body corporate and politic Date: By: Maggie Pacheco, Executive Director l;,.4l9.0J0- t7Jl!10.1 15 ^ '. . i:j -\ .rI':', "tJi """.' APPROVED AS TO FORM AND LEGAL CONTENT: o-~ru-~ Agency Counsel l;,A.lii_OOO_l'r;S.~O.l Hi ", ,. \':::'.';. L'. 1419.1)(l(J - 173UCl.1 ., c- '" EXHIBIT "A" Map of Study Area 'i:;Y _" ':'t,' ., f' -, ~, i.'..,' ~~ ---.J r' ... @ ~ @ w@ .. ... .' " ". . . ". . 0 ... .. . @.... .. " . .. .. eO .. It -.. · ,. . . .. .. " " @@' . . . . .@. . .... @ @~ .:.....". . ~ . . 13\4- . . . ~-..... . ,. ... ,. .. .' . . .. . . .' e . ~@ 1 . .9.. I ^ ~ I J ,- _.L. \... . Q - M ~. ~ ~ ~. M C1 ~ 't'o. ..t' - - \~ M to ~~ "" ~ G). ~ "'" e ~ f" e " I / !~- - - -" "'< ~ -- //-; -_.~ .~I-:-~~\ \ p, "f'" " \ @. e e ~ co fJ -+".:1 -- . . 1(' ) ~~u o' s:: ..,; 'B '" 6 " ~I ..u e : ~- :I ?;;. ~ ..,.... .:i iii ~. lU U Ii . ~ .:g 0 Q. = Ii :>. .U ... OJ Q. o ,.. .. " i 1;- .. .. .. -.: "-;";", , . LA19-00Q-l7J8l0" ';)'::"'- - -~. - - ~, ~ - '-, \i - ~ ii, .: EXHIBIT "B" Map of Agency Property and Private Property ,,_,,1...,.;' "1:, L'. ,-;",_\; ...-." ". .1 l-*.~ -.J r .... . . ~ - (I) = ~ < ~ .9.. ,r,.,..- '.I . j)' .~. \ -" .. J .....- @ 'l' ;s @ oil.. .. .." . . . . . ... .. .. .. ... lIP . @.. .. .. . . .@.. .. .... . . . . . .. ... . .. .,. . .. .. .. ... . . .. @ ~~ .:....... . ~ . . ~... .. . . \OI'~"'.. . ,. -.. .. ." .' .. .. . . ~ .~~ @w Q "" ~ ~ "l'- ,e~ f, "- I "- / 1..- - " "< '--~--- ,../, _H .0. ~.- -~ \. ~_ I",d ' \ . "\ p, .... " , @ -~@ ~@' ~@ e <9 t~7 2 ~ 1\"". - .- _ ..L- - @ ~ ~, ft) . --. "; V L4190ooo_I138..::0_1 - - ,~, - /-')": / ~' -. 'I EXHIBIT "C" Site Plan from the Specific Plan if I 'I, , I , d:J ;. - .' _j~l:Ja1IS:l, ~ .:Ilf I 'I"" ..',1 Ld ,.~i ,;_...,._.__n_... r~lNJtS~ f~.... ~ ~... ~ CJ J;';9 rl:iJ CDC/2007-12 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT (LNR San Bernardino, LLC: CAROUSEL MALL) THIS REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE AGREEMENT is dated as of May 7, 2007 (this "Agreement"), and is entered into by and between LNR San Bernardino, LLC, a California limited liability company (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 A. The Agency desires to encourage and effectuate the redevelopment of certain real property, known generally as the Carousel Mall and comprising approximately forty-four (44) acres, generally bounded by 2nd Street to the south, North "E" Street to the east, East 4th Street to the north, and the convergence of West 3rd Street and "G" Street to the west (the "Site"), that is depicted on the "Study Area Map" attached hereto as Exhibit "A"; and B. The Site lies within the Agency's Central City Projects, Redevelopment Project Area (the "Project Area"), and is subject to the Project Area's governing redevelopment plan (the "Redevelopment Plan"); and C. The Site consists of three (3) vacant department stores, retail shop spaces, a parking lot, a common area, and two (2) vacant auto service centers; and D. The Agency owns the parking lot and the City has owned and continues to own the common area on the Site, as depicted in Exhibit "B" (collectively, the Agency ownerships of certain real property and the City ownerships of certain real property included within the REA (as herein defined) are referred to herein for convenience purposes as the "Agency Property", subject to that certain Declaration of Restrictions, Construction, Operation, Restriction and Easement Agreement dated December 24, 1970, and entered into by and between: the Agency; John S. Griffith & Co., and Curci-Turner Co.; J.C. Penney Company, Inc.; Monwar Property Corporation; The Harris Company; the City of San Bernardino; Upham Development Company; and Connecticut General Mortgage and Realty Investments (the "REA"); and E. Pursuant to that certain Option to Purchase Agreement, executed March 29,2005, by and between Street Capital Corporation and (i) Central City Company, LLC, (ii) Central City Complex, LLC, and (iii) Curci-Turner Company (collectively, "Central City,"), Street Capital Corporation as the predecessor in interest to the Developer had the option to purchase certain real property and buildings comprising the Site, including the department store and auto service center formerly occupied by Montgomery Ward, and the retail shop spaces (collectively, the L419..ooo-I73820.1 "Central City Buildings"), which were owned by Central City. The Developer as the successor in interest to Street Capital Corporation exercised the option to purchase the Central City Buildings and has closed escrow with respect thereto on February 8, 2006. The Site, including the three (3) department stores, the Central City Buildings, and the two (2) auto service centers are owned by three (3) separate and distinct third parties, as depicted in Exhibit "B" (the "Private Property"). The department store commonly known as the "Harris Building" is owned by El Corte Ingles S.A., a Spanish company. The department store and auto service center formerly occupied by JC Penney (collectively, the "JC Penney Properties"), is owned by Upham Development Company, a Texas limited partnership; and F. The Developer proposes to determine the feasibility of developing the Site as a mixed use development comprising up to 750 single-family attached/detached dwelling units and up to 135,000 square feet of commercial/retail space while recognizing and retaining the Project Area's unique architectural fabric and historic building characteristics all as illustrated in the draft Specific Plan (the "Specific Plan") as filed with the City of San Bernardino (the "City") in February 2007 (collectively, the "Project"), and to negotiate with the Agency the potential terms of an Owner Participation Agreement or other mutually acceptable Disposition and Development Agreement (the "Project DDA"); and G. The Agency is prepared to consider and study the proVISIon of certain redevelopment assistance to the Developer which has not been identified as of this date to facilitate the assembly of the Private Property with the Agency Property into developable parcels ofland so as to foster the community economic development goals and objectives of the Agency and the City, including the elinlination and spreading ofbligilt, as the same relates to the Project Area, and the Agency has designated the area to be included for such study purposes, the land within the perimeters of the Site, as depicted in Exhibit "c" which includes a copy of the site plan excerpted from the draft Specific Plan (the "Study Area") for such study; and H. 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 Project Area, including the Study Area, which will require specific study, evaluation and plamting by the City and Agency, as applicable, of appropriate and feasible community redevelopment program alternatives; and I. The predecessor in interest to the Developer had previously obtained an exclusive negotiating agreement with the Agency substantially similar to this Agreement in form and content; said prior agreement was dated as of July 5, 2005, and expired pursuant to its terms on November 2, 2006; it is the intent of the Agency and the Developer that this Agreement shall supersede said expired prior agreement and shal1.update the facts and circunlStances which have changed due to the passage of time since the approval and subsequent termination of the prior agreement; and J. The Developer and the Agency believe it is appropriate for the Agency, in consultation with the Developer, to review by Agency staff those studies, reports and investigations conducted by the Developer as the Project Study Costs as part of a program for the lAl9-000_173820.1 7. study of feasible redevelopment programs for the Study Area, 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: 1. The Negotiation Period and the Term of Agreement. a. The rights and duties of the parties established by this Agreement shall commence following its approval by the governing body of the Agency when it 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 set forth in subparagraph b. below and as may be extended as provided therein. 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 as of the close of business on January 31,2008, 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 for one (1) additional extension period not to exceed one hundred twenty (120) calendar days if (i) it is determined by the Agency Executive Director that satisfactory progress is being made to complete the activities to be performed by the Developer set forth in SectionJ, and (ii) such extended term is approved by the official action of the governing body of the Agency as an amendment to this Agreement; or, (3) 20, as applicable. a party terminates this Agreement as provided under Section 19 or Section 2. Developer Acknowledgments. a. The Developer hereby acknowledges and agrees that no provlSlon 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 Study Area, the Agency Property or the Private Property, and the Project 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. LAI9-OOO-173820.1 ~ 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 approval shall not be unreasonably withheld, provided 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 Developer. Notwithstanding the foregoing, 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 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 Agreement by serving written notice of such termination, referencing this Section, on the Developer. 3. Project Study. a The Developer is determining the feasibility for the redevelopment of the Project proposed by the Developer (the "Project Study"). The Developer has caused the initial phase of the Project Study to occur, by the filing with the City in February 2007 of the draft environmental impact report ("Draft EIR" or "EIR" as applicable) as this term is defined under CEQA. The Agency and the Developer shall use their best efforts to cause the period for public review of the Draft EIR to commence within ninety (90) calendar days, following the Effective Date. As used herein, the term "best efforts basis" and "best efforts" whether applicable to the Developer or the Agency or any other person or entity not a party to this Agreement, shall mean that such entity, person or party shall perform the required action item in a timely and diligent manner and shall be responsible to incur reasonable costs, unless otherwise limited in a particular instance, in an effort to accomplish the intended result but without any guaranty or warranty as to the final outcome or result of any such efforts. The Draft EIR as prepared by the Developer shall be reviewed by the Agency staff for general conformity with this Agreement. The CEQA process was initiated with the distribution of a Notice of Preparation on May 25, 2006, and such CEQA process shall continue with the distribution of the Draft EIR for public review as set forth above. Subject to the privilege of the Developer 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 LAI9-OOO-173820.1 4 limitation, the conduct of a public hearing on a final EIR document for the Project, within eight (8) months following the Effective Date. b. The Developer may modify the description of the Project in non-substantial ways, at any time; provided however, that substantial modifications of the description of the Project shall be subject to the approval of the Community Development Commission (the "Commission") acting as the governing board of the Agency, at its sole discretion. The Agency and the Agency Executive Director may request that the Developer consider modifications to the description of the Project from time-to-time. The final form of each such modification shall be subject to the approval of the Commission on behalf of the Agency and the Developer, each at their sole discretion. c. 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. d. All third-party consultants, if any, retained by the Agency to review any study, report or document prepared by or on behalf of the Developer 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. e. [ RESERVED - NO TEXT ] f. Commencing as of the Effective Date, the Developer and the Agency shall proceed to negotiate the final form of an agreement, in which the specific terms for the redevelopment of the Site may be set forth on terms mutually acceptable to the parties as may be contained in the Project DDA. Nothing contained herein shall commit either the Developer or the Agency to accept the final form of the Project DDA and the Developer recognizes and agrees that no final Project DDA can be executed by the Agency unless and until approved by the governing board of the Agency at its sole and absolute discretion at a public meeting duly noticed under applicable California law for such purpose. g. In each case where the Developer is required to submit an item of information to the Agency Executive Director, the Developer shall submit such item of information described in this Section to the Agency Executive Director, within the time periods set forth above. Within twenty (20) 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 of receipt of such information, the information shall be deemed submitted in acceptable form by the Agency. The determinations to 1A19-OOO-173820.1 <; 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 or the Project DDA. 4. Project Study Costs. For the purposes of this Agreement, "Project 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 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 and/or the Agency. Project Study Costs shall include third party costs incurred by 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, traffic consultant fees, architectural fees, accounting fees and the like. In addition to the Project 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. 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, based on staffing unavailability, to review the Project Study. The Developer further recognizes that it will be required by the Agency as the "lead agency" under CEQA, to enter into a separate agreement for all additional costs that may be incurred in such "lead agency" capacity to review and process all CEQA documents to be prepared by or on behalf of the Developer as the Project Study Costs. 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, including without limitation the selection of tenants and the design of improvement elements as appropriate for the Project; and b. Review and provide the Project Study information described in Section 3 and provide all draft versions of any CEQA document required by the City to be prepared by the Developer 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 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. Without limiting the effect of the foregoing, the Developer shall submit a written report to the Executive Director of the Agency on or before the conclusion of each ninety (90) day period from and after the Effective Date of lA19..ooo -173820.1 .'" this Agreement. Such report shall set forth the activities and accomplishments of the Developer in furtherance of the processing of the Specific Plan, the EIR, the negotiation of the Project DDA, and the acquisition of other properties, if any, which the Devleoper intends to include within the Specific Plan. 6. Agency Not to Negotiate with Others. a. The Agency, currently, deems the disposition of the Agency Property and the redevelopment of the Site 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 the entire Site, including the sale of the Agency Property to the Developer. b. During the Negotiation Period, and subject to the Agency's compliance with the California Community Redevelopment Law ("CRL") and the Agency's Owner Participation Rules regarding the rights of owners and tenants, the Agency shall negotiate exclusively with the Developer with respect to the 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 on the Site and/or the Study Area. 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 Site, and from considering other redevelopment proposals for the Site 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 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 Site when such third party is exercising their rights pursuant to the Agency's Owner Participation Rules as required under the CRL. Such exempted transactions from the limitations of this Section shall include the various business tenants presently or hereafter located in the Central City Buildings. Nothing contained herein shall preclude or limit the ability of the Agency to negotiate with any owner participant for the acquisition of portions of the Site by such owner participant as may be deemed necessary to be undertaken by the Agency in the exercise of the rights of such owner participants under the CRL or for the extinguishment of the contractual rights of such owner participants under the REA. 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 Site. As may be further provided in the Project DDA, lA19-OOO-1738l0.1 7 the Agency may be requested, however, to consider in good faith, consistent with any applicable provision of law, any request to the Developer that the Agency exercise its power of eminent domain with regard to any particular parcel or parcels comprising the 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 and, in the exercise of the Agency's Board's sole discretion, has adopted a resolution of necessity after a duly notice public hearing, and has otherwise complied with the provisions of the Californian Eminent Domain Law, 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 proceeding, 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 Site, except for the Study Area. 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. 7. 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 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, and the redevelopment of the Site, including, but not limited to, conceptual plans or studies of vacation, realignment or abandonment of public property and facilities, the installation and improvement of public improvements and environmental evaluation of the Project. c. Use its best efforts to provide the Developer with limited access to those portions of the Site owned by the Agency and the City and referred to herein as the Agency Property, during the Negotiation Period, for the purpose of conducting customary due diligence investigations thereon, including environmental 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. LAI9-OOO_173820.\ II d. Use its best efforts to provide 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, including the development of the Specific Plan as on file with the City, in exchange for the release of the Agency and the City from the REA, under which the City is currently obligated to pay approximately one million dollars ($1,000,000) annually in maintenance and management expenses. f. Use its best efforts to assist the Developer in obtaining the entitlements necessary to develop the Project on the Site but without the incurring of any independent consultant or legal expenses. g. To the extent required by law, the Agency shall use its best efforts to commence the process required under the CRL and other applicable law for the agency to provide notices of owner participation rights, as a condition precedent to the ability of the Agency to acquire real property interests through a voluntary acquisition or to consider adopting a resolution of necessity and utilizing its power of eminent domain. Any such acquisitions, including the costs related thereto for appraisals, expert witnesses and legal expenses, shall be with funds provided by the Developer all as may be set forth in a separate written agreement or the Project DDA h. 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, including, without limitation, any zoning changes, adoption of a Specific Plan, General Plan amendments, a Statutory Development Agreement, and all other entitlements necessary for the development of the Project on the Site, suggested by the Developer in its proposed conceptual development plan, referred to in Section 3e(B) above, or at any other time during the Negotiation Period. 8. Negotiation of Project 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. 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 Property, 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. 9. 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 information generated by the Developer or its consultants regarding the Project or the Site. 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 L419-000 - 173820.1 n " 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 Site. 10. Planning and Design; Related Acknowledgments of the 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 Site must conform to 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 or the Site, 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 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 Property to the Developer, if terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any of 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. Developer shall have the right to request that the City of San Bernardino or the Agency restrict access to documents that may be determined to be exempt from disclosure pursuant to the applicable provisions of the Public Records Act and, in that event, Developer shall indemnify, defend (subject to the approval of Developer's legal counsel by the Agency Counsel), and hold harm1ess, including attorney's fees, the City of San Bernardino and the Agency from any action, lawsuit, or other proceeding iuitiated to obtain access to documents that may be determined to be exempt from disclosure pursuant to the applicable provisions of the Public Records Act. The costs, salary and expenses of the City Attorney and members of his office in representing the City and/or the Agency shall be considered as "attorney's fees" for the purposes of this paragraph. 12. 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. LAI9..ooo_173820.1 1/\ 13. Compliance with Applicable Law. The Developer acknowledges that the Project 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. 14. 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. 15. Press Releases. The Developer agrees to discuss any press releases it may propose relating to the Site with the Agency Executive Director or his/her designee, prior to publication, to assure accuracy and consistency of the information. 16. Notices. 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: LNR San Bernardino, LLC Attn: Jim Cottrell, Senior V.P. Attn: J. Patrick Galvin, CPG General Counsel 4350 Yon Karman Avenue, Suite 200 Newport Beach, California 92660 (949) 885-8500 TO AGENCY: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn.: Executive Director (909) 663-1044 LAI9-OOO-173820.1 11 17. 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 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) calendar days following the approval of this Agreement by the Agency's Board or thereafter this Agreement shall have no further force and effect with respect to either party. 18. Authority. This Agreement may be executed in counterparts, and when fully executed by the parties, each such counterpart shall be deemed to be one 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. 19. 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 Study, and this Agreement shall terminate and the parties shall be mutually released from any further obligations hereunder; provided that the Developer gives thirty (30) calendar days' prior written notice to the Agency and has paid all amounts of Agency expenses that were incurred by the Agency in reliance upon any separate written agreement or agreements, which may be entered into, wherein the Developer agrees to reimburse the Agency for specifically budgeted and identified third party independent consultants, which the Agency may desire to retain due to the unavailability of staff to review the Project Study. 20. 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 and 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 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 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. LAI9..ooo-173820.1 1') 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 any other appropriate remedy by initiating legal proceedings. The successful party in any such legal proceeding shall be entitled to recover its reasonable attorney's fees as an element of its damages, either as part of such legal proceedings or in a separate legal action to recover such attomey's fees. The costs, salary and expenses of the City Attomey 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) calendar days following the date of service of the notice of termination on the other party. 21. 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. 22. 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. 23. 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. 24. 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 lAI9-tXlO-173820.1 n 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. 25. Entire Agreement. This Agreement (including all Exhibits 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. 26. Time of Essence. Except as provided in Section 19 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 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. 27. 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. 28. Additional Matters. To the greatest possible extent, the provisions of this Section 28 shall be read consistent with the provisions of Section 1 through Section 27 of this Agreement. However, to the extent that there is any inconsistency between the provisions of this Section 28 and the provisions of Section 1 through Section 27, then the conflicting provisions in this Section 28 shall supersede and control. a. Since July 5, 2005, the scope of the Project has been refined, such that the Developer now proposes to determine the feasibility of developing the Site as a mixed-use development as further set forth in Recital F., and to negotiate with the Agency the potential terms of the Project DDA. b. The Agency and the City recognize that the Project is a major catalyst for the successful and effective redevelopment of downtown San Bernardino. LAI9-OOO-173820.1 14 c. Notwithstanding the provisions of Section 6.e. of this Agreement, the Agency shall use its best efforts to protect any information submitted by the Developer as confidential or proprietary information, as more particularly provided in Section 11 of this Agreement. d. Prior to the termination date of this Agreement, the Agency and the Developer shall diligently and in good faith pursue the following matters to such conclusion as may be acceptable to the Agency and the Developer in the sole discretion of each such party: (1) certification by the Agency's governing board, as the lead CEQA agency, of the EIR with respect to the Project in accordance with CEQA, (2) approval by the Mayor and Common Council of the City of the Specific Plan for the Project, (3) approval by the Mayor and Common Council of the City of a Tentative Tract Map encompassing the Project, and (4) approval by the Mayor and Common Council of the City and the governing board of the Agency of the Project DDA for the Project, subject to all public hearing requirements with respect to each of said matters identified as items (1) through (4), inclusive. IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates indicated next to each of their signatures as appear below. DEVELOPER LNR SAN BERNARDINO, LLC a California limited liability company By: LNR CPI A&D Holdings, LLC a Delaware limited liability company, its member By: LNR Commercial Property Investment Fund Limited Partnership a Delaware limited partnership, its member Date: 4/"":;,0/01 By: LNR CPI Fund GP, LLC a Delaware limited liability company, its general -~ By. 'H~ I~.. Name: :.\NAS.sANDERS Its: VICE PRESIDENT AGENCY Date: ,11 k 1 ! f Redevelopment Agency of the City of San Bernardino, a public y corp By: IA19-OOO-173820.\ 1'1 APPROVED AS TO FORM AND LEGAL CONTENT: ~ v~p7 Agency Counsel lAI9-OOO-173820.1 Iii EXHIBIT " A" Map of Study Area lAI9..ooo-173S20.1 ~~ -J )-J ..-LI ~ 'l' ~ @ . . . . .. :~. .y. . .... .. . " . @ @:-::.".... ~ . . 1i!t\4- . . . \OI....'~. . . .. . .. .. . .. '. . ~ "~~ c:t "tOo ;to ~ (!)~ .. .. . " " . 0 . . .- ..~ . . \.:}.. .. . . . -. .0 · . ... . . 0 . .. . . . .~@ ~@) - ~@ o . . . ! e e. e @. e <:> @. J J \... .- _.a... ~ ~. C'I) - :i ~ ~ >. .~ ... .. I J g .-M -:: 'flB :: RS E-I- : ~ ~".... III ..... ::I 5 J.; '" Ii ... ~ ~ . 8 '.~ go r;J >. <J " .. ~ --. . ' EXHIBIT "B" Map of Agency Property and Private Property lAI9-OOO-173820.1 ~~ --.J rJ .. -' .:. .. . . . . . - . .- . . . . . -A..- .\,;) . .. - . .' . -. . . ... . . . . .. . .. ~ '1' ~ - Q j. tI) . @@ c:a . . ~ 't'o. .... - .~ f') to ~ ... @. ~ ~ .@@ e e @@' -@ @:":........ ~..~.. . . \t)/_I~. . . -.. . ........ e. e l~ ~~D 8 ..., ..... .. 1l i: :: IS E-c' D e .~ III ;:;. .. IX! ....r == ~ J. ~ fIl ., & .. I>: .. 0 Ii!: .Q <> '..' ... ~ => -l '" . .~, .. -- " >. .... ... .. go J;; j ~ " .. ~ , , EXHIBIT "C" Site Plan from the Specific Plan lAI9-OOO-173820.1 . . . , i' " I I I I a ..LJ...... ... ~ r;- II I lei 'I rl.'\ I iii' "':'..,-4, . I'~-."""'" , ",., ,!L~~-; ~. ~. A~!fi::'~' ~ CJ P"l G::::J