HomeMy WebLinkAboutR35- Economic Development ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Ronald E.Winkler,Director SUBJECT: Amendment No. 1 to Disposition and
Development Agreement—California
Blo-Mass,Inc.
DATE: February 29,2000 ORIu lj JA L
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Svrumsis of Previous Commission/Council/Committee Action(s):
On October 18, 1999,the Mayor and Common Council adopted Resolution No. 1999-263 and the Commission adopted
Resolution No.CDC 1999-37 approving a disposition and development agreement for the California Bio-Mass project.
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Recommended Motion(s):
(Community Development Commission)
MOTION: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSIONAPPROVING
AMENDMENT NO. I TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
(CALIFORNIA BIO-MASS,INC.)AND EXTENDING THE COMPLETION OF THE DUE
DILIGENCE PERIOD TO A NEW DATE.
Contact Person(s): Gary Van Osdel/Ron Winkler Phone: 663-1044
Project Area(s) Northwest Ward(s): Six(6)
Supporting Data Attached: ®Staff Report®Resolution(s)OAgreement(s)/Contract(s)OMap(s)❑Letter/Memo
FUNDING REQUIREMENTS Amount: $ N/A Source: N/A
Budget Authority: N/A
SIGNATURE:
ary Osde ,9xicutivepirector p6nald E.W der,Director
Eco mic Development#gency
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Commission/Council Notes:
GVO:SMM:Iag:Amendment#1 COMMISSION MEETING AGENDA
Meeting Date: 03/06/2000
Agenda Item Number: R3S
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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Amendment No. 1 —California Bio-Mass,Inc.
BACKGROUND
On October 18, 1999,the Council/Commission conducted a joint public hearing for the
disposition of approximately 10.28 acres of agency owned property to California Bio-Mass, Inc.
Said property is located on the west side of Industrial Parkway,between the Cable Creek and
Devil's Creek flood control channels (northerly of University Parkway). California Bio-Mass,
Inc. is a firm that deals in the processing of organic waste material. These materials are
converted into soil products for agriculture,horticulture and landscape use. The Disposition and
Development Agreement(DDA)provides for the sale of the agency owned 10.28-acre parcel for
a sales price of$441,000. California Bio-Mass, Inc. is proposing the construction of a facility for
the collection,transfer, and marketing of green waste and other organic materials. The
materials collected at the transfer facility include curbside green waste, wood materials, food
waste and commercial landscape waste. All materials will be transferred to another site for
processing. Finished materials(mulch and other soil amendments) will be brought back to the
facility for bagging. The project includes up to 60,000 square feet of warehouse and office
space.
CURRENT ISSUE
The DDA provides a period of 120 days from the opening of escrow for the developer to
complete certain due diligence investigations, and to obtain development approvals from the City
for the improvement of the project. California Bio-Mass, Inc. has proceeded with their project in
accordance with the terms of the Agreement, however, application for a Conditional Use Permit
was scheduled to be reviewed by the Planning Commission on February 22, 2000, but was
continued to March 21,2000.
In accordance with the DDA, a 30-day extension was granted extending the due diligence period
through March 31, 2000. Should the decision of the Planning Commission be appealed to the
City Council, Amendment No. 1 authorizes additional time through August 1, 2000, which
would give the developer time to obtain the necessary development approvals. In the event the
actions of the City Council are challenged, the proposed amendment further provides for an
additional extension of time by mutual agreement.
FISCAL IMPACT
None.
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GVO:SMM:Iag:Amendment#1 COMMISSION MEETING AGENDA
Meeting Date: 03/06/2000
Agenda Item Number:
RECOMMENDATION
Staff recommends that the Community Development Commission adopt the attached resolution
approving Amendment No. 1 to the Disposition and Development Agreement(California Bio-
Mass,Inc.)which provides for the extension of the completion of the due diligence period to a
new date.
Ronald E. Nxinkler,Director
Development Department
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GVO:SMM:Iag:Amendment#1 COMMISSION MEETING AGENDA
Meeting Date: 03/062000
Agenda Item Number: R 3 S
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1 - -- RESOLUTIOIT N . L�
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION APPROVING AMENDMENT NO. 1 TO THE
3 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
(CALIFORNIA BIO MASS, INC. ) AND EXTENDING THE
4 COMPLETION OF THE DUE DILIGENCE PERIOD TO A
NEW DATE.
5
6
WHEREAS, the Redevelopment Agency of the City of San
7
Bernardino (the "Agency") entered into that certain 1999
8
Disposition and Development Agreement (California Bio Mass,
9
Inc. ) (the "Agreement") with California Bio Mass, Inc. , a California
10
corporation (the "Developer") , which relates to the sale and
11
disposition by the Agency of certain lands to the Developer in
12
consideration for the payment by the Developer of the sum of
13
$441, 000.00, subject to the terms and conditions set forth in the
14
Agreement; and
15
16
WHEREAS, despite its diligent efforts, the Developer has
17
not been able to complete certain "Due Diligence Investigations" of
18
the Property, as these terms are defined in the Agreement, which
19
relate to certain development project approvals; and
20
21
WHEREAS, accordingly, the parties believe that an
22
extension of the time in which the Developer may complete (or waive
23
the completion) of its Due Diligence Investigations, as relates to
24
the Property, is indicated at this time as provided hereinbelow;
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SBEO/0001/DOC/3616 ' 'n
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING
AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
2 (CALIFORNIA BIO MASS, INC. ) AND EXTENDING THE COMPLETION OF THE DUE
DILIGENCE PERIOD TO A NEW DATE.
3
NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY
4
THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO,
5
AS FOLLOWS:
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7
Section 1 . The facts set forth in the Recitals of
8
this Resolution are true and correct.
9
10
Section 2 . Based upon the record submitted at the
11
meeting at which this Resolution was approved by the Commission, as
12
the governing body of the Agency, the Commission hereby finds and
13
determines that the terms of Amendment No. 1 to the 1999
14
Disposition and Development Agreement (California Bio Mass, Inc. )
15
("Amendment No. 1") are acceptable to the Commission. The
16
Commission is informed by the Developer that the terms of Amendment
17
No. 1 are acceptable to it .
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Section 3 . The Commission hereby approves and accepts
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Amendment No. 1, as attached hereto as Attachment No. 1 . , and
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incorporated herein by this reference. The Chairperson of the
22
23 Commission and the Executive Director of the Agency are hereby
authorized and directed to execute Amendment No. 1 on behalf of the
24
Agency.
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING
AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
2 (CALIFORNIA BIO MASS, INC. ) AND EXTENDING THE COMPLETION OF THE DUE
DILIGENCE PERIOD TO A NEW DATE.
3
9 I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the , Community Development Commission of the City of
5
San Bernardino at a meeting
6
thereof, held on the day of 2000, by the
7
following vote, to wit:
8
9 Commission AYES NAYS ABSTAIN ABSENT
ESTRADA
10 LIEN
MCGINNIS
11 SCHNETZ
SUAREZ
12 ANDERSON
13 MILLER
14
Secretary
15
16 The foregoing Resolution is hereby approved this
17 day of 2000 .
18
19 Judith Valles, Chairperson
Community Development Commission
20 of the City of San Bernardino
21 !
Approve / o fo an 1 content :
22
By:
23 Agency Counsel
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING
AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
2 (CALIFORNIA BID MASS, INC. ) AND EXTENDING THE COMPLETION OF THE DUE
DILIGENCE PERIOD TO A NEW DATE.
3
ATTACHMENT NO. 1
4
5 AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
(CALIFORNIA BIO MASS, INC. )
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CDC 2000-5
AMENDMENT NO. 1 TO
THE 1999 DISPOSITION AND .DEVELOPMENT AGREEMENT
(CALIFORNIA BIO MASS, INC. )
THIS AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT .
AGREEMENT (the "Amendment No. 1") is dated as of March 6, 2000, by
and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
a public body corporate and politic (the "Agency") and DAVID L.
HARDY AND MICHAEL J. HARDY, tenants in common, doing business as
CALIFORNIA BIO MASS, INC. , a California corporation (the
"Developer") . The Agency and Developer hereby agree as follows:
--RECITALS--
1 . The Developer and the Agency have previously entered into
that certain 1999 Disposition and Development Agreement (California
Bio Mass, Inc. ) (the "Agreement") which relates to the sale and
disposition by the Agency of certain lands to the Developer in
consideration for the payment by the Developer of the sum of
$441, 000 . 00, subject to the terms and conditions set forth in. the
Agreement.
2 . Despite its diligent efforts, the Developer has not been
able to complete certain "Due Diligence Investigations" of the
Property, as these terms are defined in the Agreement, relating to
certain development project approvals .
3 . Accordingly, the parties believe that an extension of the
time in which the Developer may complete (or waive the completion)
of its Due Diligence Investigations, as relate to the Property, is
indicated, at this time, as provided hereinbelow.
NOW THEREFOR IN CONSIDERATION OF THE PROMISES OF THE PARTIES
THE DEVELOPER AND THE AGENCY HEREBY AGREE AS FOLLOWS:
Section 1 .
The text of the Agreement is incorporated in full in this
Amendment No. 1 by this reference. Unless the usage of a specific
term or phrase as set forth in this Amendment No. 1 may otherwise
require, the meaning of all defined words as used herein shall be
as provided in the Agreement.
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Section 2 .
As of the date of the approval of this Amendment No. 1 by the
governing board of the Agency and the full execution of this
Amendment No. 1 by the parties, there is no breach under the
Agreement, and both the Developer and the Agency declare that to
the best knowledge of each of them, there are no facts which with
the giving of notice and the passage of time would constitute a
default under the Agreement.
Section 3 .
(a) As of the date of approval of this Amendment No.l, by the
governing board of the Agency, the Developer has accepted the
condition of title to the Property as provided in Section 2 . 13 of
the Agreement.
(b) As of the date of approval of this Amendment No. 1 by the
governing board of the Agency, the Developer has completed its
investigation of the matters covered in Section 2 . 09 (b) of the
Agreement as relates to the Property, and subject to the matters
covered in Section 2 .09 (c) as relates to certain development
project approvals for the Project, the Developer represents and
warrants to the Agency that the Developer is prepared to deliver
its Due Diligence Approval Certificate to the Agency subject only
to the provisions of Section 2 . 15 (c) and Section 2 . 15 (d) of the
Agreement, as amended by this Amendment No. 1.
Section 4 .
Section 2 .03 (b) of the Agreement is hereby amended to read as
follows :
" (b) In the event that the Developer has not delivered its Due
Diligence Approval Certificate to the Agency and the Escrow
Holder by the applicable date indicated in Section 2 . 15 (c) or
Section 2 . 15 (d) , then in such event this Agreement shall
terminate upon written notice to the Escrow Holder from either
the Agency or the Developer, whereupon the Deposit shall be
returned by the Escrow Holder to the Developer (less an amount
equal to the customary and reasonable escrow cancellation
charges payable to the Escrow Holder) without further or
separate instruction to the Escrow Holder, and the parties
shall each be relieved and discharged from all further
responsibility or liability under this Agreement. "
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CDC 2000-5
Section 5 .
Upon the approval of this Amendment No. 1 by the governing
board of the Agency and the full execution of this Amendment No. 1
by both of the parties hereto, no further extensions of time for
the completion of the Due Diligence Period shall be authorized by
the Executive Director under the provisions of Section 2 . 15 (b) of
the Agreement.
Section 6.
Section 2 . 15 of the Agreement is hereby amended to add a new
subsection " (c) " to read as follows :
" (c) Upon the approval of Amendment No. 1 to this Agreement by
the governing board of the Agency and the full execution of
Amendment No. 1 to this Agreement by both of the parties, the
Due Diligence Period of the Developer with respect to the
matters included in Section 2.09(d) of this Agreement shall be
extended to the first of the following dates to occur:
(i) Subject to (ii) and (iii) , below, the close of the
business day on the fifteenth (15th) day following the
close of the public hearing and final action of the City
Planning Commission for its consideration and final
action on Conditional Use Permit No. 99-17; or
(ii) Subject to (iii) , below, in the event that any
third-party may submit an appeal as provided in San
Bernardino Municipal Code Section 19.52 .100 of the final
action of the City Planning Commission with respect to
Conditional Use Permit No. 99-17, then in such event the
Due Diligence Period shall be further extended to a date
which is one hundred (100) days following the close of
the public hearing of the City Council and its final
action in consideration of such appeal; or
(iii) August 1, 2000. "
Section 7 .
Section 2 . 15 of the Agreement is hereby amended to add a new
subsection " (d) " to read as follows:
" (d) Notwithstanding the provisions of Section 2 .15 (c) , in the
event that on or before July 31, 2000, a third party may
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CDC 2000-5
initiate legal proceedings in a court of competent
jurisdiction to challenge or set aside the final action by the
City Council as provided in Section 2 . 15 (c) (ii) , then in such
event the Developer and the Agency may in the sole discretion
of each of them, jointly approve a further extension of the
Due Diligence Period to a date which is mutually acceptable to
the Developer and the Agency. The provisions of this Section
2 . 15 (d) shall be applicable to the consideration of any such
further extension of the Due Diligence Period upon the written
request of the Developer to the Agency which references this
Section 2 . 15 (d) . The Agency shall provide the Developer with
its response to such a request for a further extension of the
Due Diligence Period within thirty (30) days following its
receipt; provided however that if the Agency has not responded
to a request of the Developer under this Section 2 . 15 (d)
within thirty (30) days for any reason, the Developer shall be
conclusively deemed to have rejected the condition of the
Property, and either party may thereafter terminate this
Agreement as provided in Section 2 .03 (b) . "
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THE AMENDMENT NO. 1 may be executed in counterpart and when
fully executed by the parties each counterpart shall be deemed to
be one original Amendment No. 1 to the Agreement; provided however
that this Amendment No. 1 to the Agreement shall have been approved
by majority vote of the governing board of the Agency and fully
executed by the parties by a date no later than March 21, 2000 .
DEVELOPER
David L. Hardy and Michael
J. Hardy, as tenants in
common, doing business as
California Bio Mass, Inc. ,
a California corporation
Date: By:
David L. Hardy
Date: By:
Michael J. Hardy
AGENCY
Redevelopment Agency of the
City o Son Bernardino
Date: !J8 08' gedd By:
U ith Valles
Ch it of the Community
D velopment Commission
Date: By:
Gary Van Osdel
Executive Director
APPROVED AS TO FORM:
Sabo a3 - i - �LLP
11�
Agency Special Counsel
[All Signatures Must Be Notarized]
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