HomeMy WebLinkAboutR30-Economic Development Agency
CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
FROM: Emil A. Marzullo
Interim Executive Director
SUBJECT:
Consideration and adoption of Amendment No.1
to Exclusive Right to Negotiate Agreement
("ERN") by and between the Redevelopment
Agency of the City of San Bernardino
("Agency") and Panattoni Development
Company, Inc. ("Developer")
DATE: April 28, 2011
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Svnoesis of Previous Commission/Council/Committee Action(s):
On March 7, 2011, the Agency approved an ERN with Panattoni for the potential redevelopment of the Carousel Mall property
located at 295 Carousel Mal~
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Recommended Motion(s):
(Communitv Development Commission)
Resolution of the Community Development Commission of the City of San Bernardino
approving and authorizing the Interim Executive Director of the Redevelopment Agency of the
City of San Bernardino ("Agency") to execute Amendment No. I to the Exclusive Right to
Negotiate Agreement ("ERN") by and between the Redevelopment Agency of the City of San
Bernardino ("Agency") and Panattoni Development Company, Inc. ("Developer") to revise the
terms and schedule for Developer performance.
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Contact Person(s):
Emil A. Marzullo
Phone:
(909) 663-1044
Project Area(s):
Supporting Data Attached:
Central City
Redevelopment Project Area
Ward(s):
I"
o Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letter(s)
FUNDING REQUIREMENTS:
Amount: $
-0-
Source:
-0-
Budget Authority:
No funding impact
.
c:::;~ ! ...
Signature: Z
Emil A. Marzullo, Interim Executive Director
Fiscal Review~ WA/U ~Li
Lori Panzino- Tillery, Inte m Chief Financial Officer
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Commission/Council Notes:
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P:\AgendasIComm Dev Commission\CDC 2011105-16-11 Panattoni - Assignment and ERN Agreement Amendment NO.1 SRdoc COMMISSION MEETING AGENDA
Meeting Date: 05/16/2011
Agenda Item Number: J2:?i)
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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CONSIDERATION AND ADOPTION OF AMENDMENT NO.1
TO EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT ("ERN") BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY")
AND PANATTONI DEVELOPMENT COMPANY, INC. ("DEVELOPER")
BACKGROUND/CURRENT ISSUE:
In January 2010, Panattoni Development Company, Inc. ("Developer") entered into a Purchase and
Sale Agreement ("PSA") with Center Bank for the purchase of the promissory note held by Center
Bank as the lender and secured with deeds of trust on the certain portions of the Carousel Mall.
Panattoni had offered the Agency the opportunity to acquire the assets pursuant to the PSA and such
transaction was approved by the Agency on May 3, 2010. The Agency ultimately acquired title to the
property on February 15,2011 under a Trustee Foreclosure Sale.
An Exclusive Right to Negotiate Agreement ("ERN") with the Developer was executed on March 7,
2011 in conjunction with the Agency acquisition of the property. The ERN provides for 180 day
negotiation period from a March 7, 2011 effective date. In addition, the ERN obligates the Developer
to submit a proposed scope of work for the development of the property within 60 calendar days from
the effective date, which submittal date is May 7, 2011.
Since approval of the ERN, the Developer and Agency staff have been working diligently to allow for
the Developer to perform in accordance with the ERN. One of the specific steps recently taken was
the Agency's employment of the firm AECOM to complete a master planning effort of the overall
site. This effort is being done to ensure that specific uses proposed by the Developer will be properly
integrated within the Carousel Mall site as well as the larger downtown area. As the timeframe for this
master planning process will extend beyond the May 7 deadline for the Developer to submit a proposal
and thus compress the remaining time until the 180 day termination date, staff is recommending an
Amendment to allow for the 60 day period for submittal of a scope of work and the overall 180
termination date to begin from the date the Agency delivers a Master Plan of the Carousel Mall site to
the developer. If no Master Plan is delivered, the amendment will expire in one year, i.e. May 16,
2012. In order to proceed in this manner, an Amendment to the ERN is being recommended:
ENVIRONMENTAL IMPACT:
This does not meet the definition of a "project" under Section 15378 of the California Environmental
Quality Act ("CEQA"), which states that a "Project" means the whole of an action, which has a
potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment.
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PlAgendas\CommDevCommissionlCDC 20[1105-16-]] Pananoni-Assignment and ERN Agreement Amendment No_ 1 SKdoc COMMISSION MEETING AGENDA
Meeting Date: 05/16/2011
Agenda Item Nnmber: ~
Economic Development Agency Staff Report
Panattoni - Assignment and ERN Agreement Amendment No. I
Page 2
FISCAL IMPACT:
No City General Fund fiscal impact.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
Emil A. Marzullo, InterIm Executive Director
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P:\AgendasIComm Dev CommissionlCDC 201 ]\05-16-11 Panattoni - Assignment and ERN Agreement Amendment NO.1 SR.doc COMMISSION MEETING AGENDA
Meeting Date: 05/16/2011
Agenda Item Number: ~
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE AMENDMENT NO.1 TO THE EXCLUSIVE
RIGHT TO NEGOTIATE AGREEMENT ("ERN") BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO ("AGENCY") AND PANATTONI DEVELOPMENT
COMPANY, INC. ("DEVELOPER") TO REVISE THE TERMS AND
SCHEDULE FOR DEVELOPER PERFORMANCE.
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a
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public body, corporate and politic existing under the laws of the State of California, California
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Community Redevelopment Law, Health and Safety Code Section 33000, et seq. (the "CRL"), and
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is charged with the mission of redeveloping blighted and underutilized land; and
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"Commission") is the governing body for the Agency; and
WHEREAS, the Community Development Commission of the City of San Bernardino (the
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potential redevelopment of the Carousel Mall site located at 295 Carousel Mall, in the City of San
WHEREAS, on March 7, 2011, the Agency executed an ERN with the Developer for the
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Bernardino, California (the "Property"); and
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effective date; and
WHEREAS, the existing ERN provides for a 180 day termination date from a March 7, 2011
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and
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"180 days following the submittal ofa Master Site Plan of the Carousel Mall Site from the Agency";
WHEREAS, the developer has requested an Amendment to the existing termination date to:
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WHEREAS, Agency staff supports the requested Amendment to improve the likelihood that
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a potential development proposal by the development shall reflect the Agency's goals for
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redevelopment of the property.
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
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CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
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P:\AgendasIResolutionslResolutions\201 ]\05-]6-] I Pananoni Amendment No. I to ERN CDC Reso docx
1 FOLLOWS:
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Section 1.
3 correct.
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Section 2.
The information set forth in the above recitals of this Resolution is true and
The Commission hereby approves said Amendment No. I by and between the
5 Agency and the Developer in the form as attached hereto as Exhibit "A," and hereby authorizes the
6 Interim Executive Director to execute said Amendment No.1 with the Developer on behalf of the
7 Agency together with such technical and conforming changes as may be recommended by the
8 Interim Executive Director and approved by the Agency Counsel and the City Attorney. The
9 Interim Executive Director of the Agency or such other designated representative of the Agency is
10 further authorized to do any and all things and take any and all actions as may be deemed necessary
11 or advisable to effectuate the purposes of the Agreement, including making non-substantive
12 modifications to the Agreement.
This Resolution shall take effect from and after its date of adoption by this
13 Section 3.
14 Commission.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE AMENDMENT NO.1 TO THE EXCLUSIVE
RIGHT TO NEGOTIATE AGREEMENT ("ERN") BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO ("AGENCY") AND PANATTONI DEVELOPMENT
COMPANY, INC. ("DEVELOPER") TO REVISE THE TERMS AND
SCHEDULE FOR DEVELOPER PERFORMANCE.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
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Development Commission of the City of San Bernardino at a
9 meeting thereof, held on the day of
10 Commission Members: Aves Navs
11 MARQUEZ
12 VACANT
13 BRINKER
14 SHORETT
15 KELLEY
16 JOHNSON
17 MC CAMMACK
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21 The foregoing Resolution is hereby approved this
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25 Approved as to Form:
26 BY:C~lf4
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Agen y unsel
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,2011, by the following vote to wit:
Abstain
Absent
Secretary
day of
,2011.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
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P:\Agendas\Resolutions\Resolutions\2011\05-16-1] Panattoni Amendment No. I to ERN CDC Resodocx
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EXHIBIT" A"
Amendment No.1 to the Exclusive Right to Negotiate Agreement
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RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, CA 92401
FIRST AMENDMENT TO THE
REDEVELOPMENT AGENCY OF THE CITY SAN BERNARDINO EXCLUSIVE RIGHT
TO NEGOTIATE AGREEMENT
BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
PANAHONI DEVELOPMENT COMPANY, INC.
DATED MAY 16, 2011
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P:\Agendas\Agenda Attad1ments\Agenda Attachments\Agrmts-Amend 2011\05-16-11 Panattoni Amendment No.1 to the 2011 ERN.docx
AMENDMENT NO.1 TO THE EXECLUSIVE RIGHT TO NEGOTIATE AGREEMENT
BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND PANATTONI
DEVELOPMENT COMPANY, INC.
THIS AMENDMENT NO. 1 TO THE EXECLUSIVE RIGHT TO NEGOTIATE
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO (the "AGENCY") AND PANATTONI DEVELOPMENT
COMPANY, INC. ~the "DEVELOPER") DATED MARCH 7, 2011 (this "Amendment No.
1") is made this 16 h day of May, 2011, by and between the Agency and the Developer.
RECITALS
WHEREAS, the Agency and the Developer entered into that certain Exclusive
Right to Negotiate Agreement dated March 7, 2011 (the "Original ERN"); and
WHEREAS, the Agency and Developer desire to amend the terms of the Original
ERN, pursuant to the terms and conditions as set forth below in order to revise the
terms and schedule for Developers performance.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
Section 1. Section 1.d of the Original ERN is amended to read as follows:
1.d This Agreement shall automatically terminate, without further notice or action,
and be of no further force and effect (i) the latter of one-hundred-eighty (180) days
following the submittal of a Master Site Plan of the Carousel Mall site from the Agency,
or (ii) immediately upon the effectiveness of a Development Management Consultant
with the Developer, unless:
(1) The parties each agree at their sole discretion to extend the term of this
Agreement in writing to a specific date, subject to the Interim Executive Director of the
Agency first making a finding based upon written documentation and other facts
presented to verify that satisfactory progress is being made to complete the activities to
be performed by the Developer set forth in Section 5; or
(2) A party terminates this Agreement as provided under Section 18 or
section 19, as applicable.
Notwithstanding the above, if no Master Plan is delivered, this Amendment shall
terminate in one (1) year on May 16, 2012, unless terminated earlier if the Master Plan
is delivered but in any event such termination shall occur not later than May 16, 2012.
Section 2. Section 3.c of the Original ERN is amended to read as follows:
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P:\Agendss\Agenda Attachments\Agenda Attachmenls\Agrmts-Amend 2011\05-16-11 Panattoni Amendment NO.1 to the 2011 ERN,docx
3.c Within sixty (60) calendar days following submittal of a Master Site Plan of the
Carousel Mall site from the Agency, the Developer shall submit to the Agency a
proposed scope of work for the development of the property (the "Proposal").
Section 3. All of the other terms of the Original ERN shall remain in effect.
SIGNATURES APPEAR ON NEXT PAGE
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P:\Agendas\Agenda Attachments\Agenda Attacl1menls\Agrmts-Amend 2011\05-16-11 Panattoni Amendment No 1 10 the 2011 ERNdoex
IN WITNESS WHEREOF, the undersigned have executed Amendment NO.1 as
of the date first above written.
DEVELOPER:
PANATTONI DEVELOPMENT COMPANY, INC.,
a California corporation
By:
Date:
Mark D. Payne
President
AGENCY:
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
By:
Emil A. Marzullo
Interim Executive Director
Date:
APPROVED AS TO FORM:
V~
. A c. ounsel
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P:\Agendas\Agenda Altachments\Agenda Attachments\Agrmts-Amend 2011\05-16-11 Panattoni Amendment NO.1 to the 2011 ERN.docx
STATE OF CALIFORNIA )
COUNTY OF )
On the _ day of , 2011 before me, personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity and that by his signature on the instrument the person or entity upon behalf of
which the person acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(signature)
(seal)
STATE OF CALIFORNIA
COUNTY OF
)
)
On the _ day of , 2011 before me, personally
appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity and that by his signature on the instrument the person or entity upon behalf of
which the person acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(signature)
(seal)
P:\Agendas\Agenda Attachmenls\Agenda Attachments\Agrmts-Amend 2011\05-16-11 Panattoni Amendment No.1 to lhe 2011 ERN_docx
EXHIBIT A-1
AMENDED AND RESTATED REQUIRED BUILDING STANDARDS
TO REPLACE EXHIBIT A-1 OF THE ORIGINAL DDA
Agency Approval of the DDA
June 2, 2003
Current Residential Codes, Regulations and Design Guidelines of the City of San
Bernardino as the same may exist as of such time when building permits are issued by
the City of San Bernardino for the private development and infrastructure comprising the
Project pursuant to the DDA.
P:\Agendas\Agenda Atlachments\Agenda Attachments\Agrmts-Amend 2011\05-16-11 Panattoni Amendment NO.1 to the 2011 ERN,docx
EXHIBIT B
AMENDED AND RESTATED SCHEDULE OF PERFORMANCE
TO REPLACE EXHIBIT G OF THE ORIGINAL DDA AND EXHIBIT B OF THE
CLARIFICATION
(Days shall be calendar days, and all dates herein are subject to change due to force
majeure in accordance with Section 6.05 of the DDA)
Agency Approval of the DDA
June 2, 2003
The Developer shall perform the following after receipt of the relevant government
approvals and permits:
1. After the date of approval of Amendment No. 3 to the DDA, the Developer shall
commence construction of the Project (as approved) within the later to occur of
either (i) sixty (60) days after the execution of the Amendment No.3 to the DDA,
or (ii) receipt of approval of building plans from the City of San Bernardino.
2. Complete construction of the Project on or before the ih anniversary after the
execution of the Amendment NO.3 to the DDA.
P:\Agendas\Agenda Attachments\Agenda Attachmenls\Agrmts-Amend 2011\05-16-11 Panattoni Amendment NO.1 to the 2011 ERN.doex