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HomeMy WebLinkAbout06.A- Community Development 6.A RESOLUTION(ID# 1327) DOC ID: 1327 C CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Public Hearing From: Margo Wheeler M/CC Meeting Date: 11/21/2011 Prepared by: Shirley Robinson, (909) 384- 5057 Dept: Community Development Ward(s): 3 Subject: A Resolution of the Mayor and Common Council of the City of San Bernardino Approving First Amendment to Development Agreement No. 91-01 Between the City of San Bernardino and the Developer of the Inland Center Mall, Located at 500 South Inland Center Drive. Financial Impact: Account Budgeted Amount: None. Account No.N/A Account Description: «Inert Account Description Balance as of: «Inert Date>> Balance after approval of this item: «Inert Amount>> Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred,but not yet processed. w The hearing remains open from October 17,2011. Motion: Close public hearing and adopt resolution. Synopsis of Previous Council Action: April 1, 1996 -The Mayor and Common Council approved Development Agreement No. 91-01 (Resolution No. 96-84) and certified an Environmental Impact Report (SCH #94032045) which granted the developer the right to expand the Inland Center Mall. November 3, 1997 - The Mayor and Common Council upheld the Planning Commission's denial of an appeal of the approval of Development Permit 2 No. 97-13 to initiate Phase I of the expansion of the Inland Center Mall. September 6,2011 -The Applicant requested a continuance to September 9, 2011. September 19, 2011 - The Applicant requested a continuance to October 17, 2011. Background: On June 22, 2011, the Planning Commission recommended that the Mayor and Common Council approve Development Agreement Amendment (DA)No. 08-01 to extend and ..nand the Updated: 11/17/2011 by Mayra Ochiqui C Packet Pg. 72 1327 Development Agreement enacted on April 1, 1996, for a phased expansion of the Inland Center Mall, requiring completion of Phase I in 2026 and commencement of the final Phase II by 2031. Proposed amendments include substitution of current Development Code parking standards for the more stringent requirement In the existing Agreement, and incorporation of minor modifications to the project site caused by the recent widening of 1-215. The subject site is a 61-acre regional mall located at 500 South Inland Center Drive in the CR-1, Commercial Regional Malls land use district. The applicant/representative requests that the Mayor and Common Council approve Development Agreement Amendment No. 08-01 as recommended by the Planning Commission at their meeting of June 22, 2011. The Planning Commission voted unanimously in favor of the proposed development agreement amendment. Commissioners Eble, Heasley, Jimenez, Machen, Mulvihill and Rawls voted in favor of the motion and Commissioners Coute and Dun were absent. Due to current economic conditions, expansion for the Mall as anticipated in Development Agreement No. 91-01 has been challenging. The applicant/representative requests that the completion dates for Phases I and II be extended and that minor clarification and updates be added to simplify certain sections of the agreement, to enhance processing of further expansion of the Mall. The Planning Commission staff report (Attachment 1) contains a more detailed analysis of DA 08-01. California Environmental Quality Act(CEQA) Compliance: �^ An Environmental Impact Report (SCH #94032045) was prepared to analyze all potential impacts related to approval of Development Agreement No 91-01 in compliance with CEQA requirements and Section 19.20.030 (6) of the Development Code. Findings of Fact and a Statement of Overriding Considerations were adopted in accordance with guidelines for the implementation of CEQA. All future development described in the subject agreement will be required to incorporate applicable mitigation measures from the EIR. Financial Impact: None. Recommendation: That the hearing be closed and that the resolution be adopted. Attachment 1: Planning Commission Staff Report Dated June 22,2011 Resolution City Attorney Review: Supporting Documents: Updated: 11/17/2011 by Mayra Ochiqui C Packet Pg. 73 1327 r- RESO-final (PDF) .. InlandCenterMall DA Amend OstoichLtr 11-16-11 (PDF) InlandCenterMall First AmendDevAgmt RED 11-16-11 (DOC) InlandCenterMall DevAgmtAmendCLEAN 11-16-11 (DOC) 1327 DA No. 91-01 Inland Center Mall (TXT) InlandCenterMall DevAgmt Exh I PublicImprovemts (PDF) Updated: 11/17/2011 by Mayra Ochiqui C PacketPg. 74 6.A.a 1 RESOLUTION NO. z 3 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING FIRST AMENDMENT TO a DEVELOPMENT AGREEMENT NO. 91-01 BETWEEN THE CITY OF SAN 5 BERNARDINO AND THE DEVELOPER OF THE INLAND CENTER MALL, LOCATED AT 500 SOUTH INLAND CENTER DRIVE. 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 8 OF SAN BERNARDINO AS FOLLOWS: 9 10 SECTION 1. Recitals. 11 WHEREAS, WM Inland LP has requested approval of an amendment to Development Agreement No. 91-01 for a phased expansion of the Inland Center Mall; and 12 S 13 WHEREAS, the proposed agreement amendment is referred to herein as Development Agreement Amendment No. 08-01 and is also referred to herein as First Amendment to z6 14 Cis th Development Agreement for e Inland Center Mall; and o 16 WHEREAS, the Inland Center Mall consists of approximately 61 acres located at 500 M South Inland Center Drive; and 17 r WHEREAS, on April 1, 1996, the Mayor and Common Council approved Development p 18 Agreement No. 91-01 by Resolution No. 96-84 which provided the developer of the Inland W 19 zo Center Mall the right to expand the Inland Center Mall and develop the project site in accordance E with the provisions established in the Development Agreement; and = u 21 0 zz WHEREAS, an Environmental Impact Report (State Clearinghouse No. 94032045) was a 23 prepared for Development Agreement No. 91-01, pursuant to Section 15050 of the California za Environmental Quality Act(CEQA) Guidelines; and 25 WHEREAS, the Planning Commission of the City of San Bernardino held a noticed 26 public hearing on June 22, 2011, to consider Development Agreement Amendment No. 08-01 27 and recommended approval to the Mayor and Common Council; and 28 1 Packet Pg. 75 I WHEREAS, the Mayor and Common Council held a noticed public hearing on July 18, 2 2011, to consider the proposed Development Agreement Amendment No. 08-01, including the 3 Planning Commission recommendation and the Planning Division Staff Report dated June 22, 4 2011. 5 NOW, THEREFORE, BE IT RESOLVED, FOUND AND DETERMINED BY THE 6 MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS 7 FOLLOWS: 8 SECTION 2. Findings: 9 A. Development Agreement Amendment No. 08-01 is internally consistent with the v to General Plan in that it meets General Plan Policy 4.5.2 in that it maintains and enhances U 11 commercial regional cores and economically sound community-serving commercial a m 12 concentrations by attracting new regional outlets, maintaining the existing regional retail base, 0 13 and stabilizing the future regional retail base. 6 14 B. Development Agreement Amendment No. 08-01 is consistent with Development a o ]s Code Chapter 19.40 in that, in conjunction with Development Agreement No. 91-01, it contains N 16 the mandatory contents for development agreements, including and not limited to the duration of 17 the agreement, the permitted uses of the property, and the density or intensity of use(s) as w 18 O described in Section 19.40.040 of the Development Code. w 19 C. The proposed amendment will promote the public interest, health, safety, d 20 convenience and welfare of the City in that expansion of the Inland Center Mall will create U 21 temporary construction jobs and permanent J ob opportunities in the City, and generate revenues Fq a 22 and property taxes for the City. 23 SECTION 3. Development Agreement Amendment No. 08-01: 24 Development Agreement Amendment No. 08-01, also referred to as the First Amendment 25 to Development Agreement for the Inland Center Mall, attached hereto and incorporated herein 26 as Exhibit A, and is hereby approved. The City Manager is hereby authorized and directed to 27 execute the First Amendment to Development Agreement for the Inland Center Mall on behalf of 28 the City of San Bernardino. 2 Packet Pg. 76 6.A.a 1 SECTION 4. Compliance with California Environmental Ouality Act: 2 An Environmental Impact Report (EIR) (SCH #94032045) was prepared to analyze the 3 environmental impacts of the expansion of the Inland Center Mall as proposed under 4 Development Agreement No. 91-01. The Mayor and Common Council certified the EIR, 5 adopted Findings of Fact, a Statement of Overriding Considerations and a Mitigation 6 Monitoring/Reporting Program (MM/RP) on April 1, 1996. Development Agreement 7 Amendment No. 08-01 does not alter the scope of the approved expansion plan, provides only 8 minor modifications to the project site, and does not require further environmental analysis or 9 documentation pursuant to Sections 15162 through 15164 of the State CEQA Guidelines. d 10 SECTION 5. Notice of Determination d 11 The Planning Division is hereby directed to file a Notice of Determination with the c R 12 County Clerk of the Board of Supervisors of the County of San Bernardino, certifying the City's —` 0 13 compliance with the California Environmental Quality Act. 0 14 Z 15 n N 16 A 17 � 18 � w 19 C d 20 � t U 21 Q 22 23 24 25 26 27 28 Packet Pg. 77 1 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE 2 CITY OF SAN BERNARDINO APPROVING FIRST AMENDMENT TO 3 DEVELOPMENT AGREEMENT NO. 91-01 BETWEEN THE CITY OF SAN BERNARDINO AND THE DEVELOPER OF THE INLAND CENTER MALL, 4 LOCATED AT 500 SOUTH INLAND CENTER DRIVE. s 6 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof,held 8 on the day of 2011,by the following vote, to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT g MARQUEZ 10 r d VACANT t1 � 12 BRINKER c — SHORETT ° 13 `- m 1a KELLEY 6 z JOHNSON o 15 16 MC CAMMACK 17 w 18 Rachel Clark, City Clerk v6i w 19 The foregoing resolution is hereby approved this day of 2011. 20 ;_ s U 21 M Patrick J. Morris, Mayor a 22 City of San Bernardino Approved as to form: 23 24 2s JAMES F. PENMAN, City Attorney 26 27 By. 28 4 PacketPg. 78 G R ES HAM SAVAGE Mark.Ostoich®GreshamSavage.com - San Bernardino Office .T -�,.x h_ ,, AT Y,_- v (909)890-4499 fax(909)890-9890 November 16,2011 m Honorable Patrick J.Morris,Mayor `m Members of the Common Council m City of San Bernardino v 300 North"D"Street San Bernardino,California 92418 0 Re: First Amendment to Development Agreement for Inland Center 0 z Honorable Mayor and Council Members: c Enclosed is a copy of a proposed revised First Amendment to Development M Agreement, which has been approved b WM Inland LP on behalf of Inland Center gt' PP Y and Emil Marzullo on behalf of the EDA. The enclosed copy of the First Amendment compares the revised First Amendment to the last draft you saw. Inland Center is in agreement with the revised First Amendment and respectfully requests your favorable consideration of it at the November 21 meeting. We are pleased that we have been able to satisfactorily conclude the terms of this First N Amendment with the EDA and wish the EDA the best in its efforts to site a First Run 0 v Theater at the Downtown Cinema. d E I will attend the November 21 meeting and will be happy to answer any questions you a may have about the First Amendment. R Very truly yours, v c m c Mark A. Ostoich, of GRESHAM SAVAGE NOLAN&TILDEN, Z A Professional Corporation =° a MAO/pmj Enclosure ;�i11ir1�1? Y.IVLRS1Uk 3750 University Avenue,Suite 250 • Riverside,California 92501 S,%N BFRN,%RDIKO 550 East Hospitality Lane,Suite 300 • San Bernardino,California 92408 GreshannSavage.com W"0.000- Packet Pg. 79 6.A.c RECORDING REQUESTED BY: GRESHAM SAVAGE NOLAN&TILDEN AND WHEN RECORDED,MAIL TO: Gresham Savage Nolan&Tilden z 550 East Hospitality Lane,Suite 300 2 San Bernardino,CA 92408 Attn: Mark A.Ostoich,Esq. c N U (THIS SPACE FOR RECORDER'S USE ONLY) -Q C W C O FIRST AMENDMENT TO DEVELOPMENT AGREEMENT m FOR THE INLAND CENTER MALL o z a 0 Between N M THE CITY OF SAN BERNARDINO, a Municipal Corporation and WM INLAND LP, a Delaware limited partnership w W y E rn a m 0 c d E a N IL d G tU U C C C 4) Fvq Amm t N"jognml Ap ml-1310 08 RED E W936W0-7?780.1 U R a r~ Packet 578 07 6.A.c FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR THE INLAND CENTER MALL This First Amendment to Development Agreement for the Inland Center Mall ("First Amendment") is entered into effective 20 , between the City of San _ Bernardino, a municipal corporation ("City") and WM Inland LP, a Delaware limited Fa partnership,doing business as Inland Center("Developer"). d A. Effective May 1, 1996, City and Developer's predecessor-in-interest, Mano r Management Company, Inc., a Delaware corporation ("Mano"), entered into a Development tj Agreement regarding anticipated development at the Inland Center Mall ("Development a Agreement"). The Development Agreement was enacted on April 1, 1996, by Resolution No. m 96-84. 5 B. Developer is the successor-in-interest of Mano and has received from Mano the c transfer of all of Mano's rights and obligations under the Development Agreement. °D 6 C. Since 1996, market conditions have adversely affected regional malls throughout Z the United States. Such market conditions include,without limitation,the consolidation of major p tenants,leading to the departure of traditional major tenants from the marketplace and changing r consumer patterns, leading to a preference for life-style oriented developments that combine M retail, restaurant and entertainment uses. Despite reasonable efforts, such market conditions _. have prevented Mano and Developer from meeting certain milestone dates for development, as envisioned by City and Developer at the time the Development Agreement was enacted. D. In addition, the California Department of Transportation ("Caltrans") recently widened Interstate 215 by constructing two additional lanes immediately adjacent to the Inland p Center Mall("Interstate 215 Improvements"),on property previously containing a 15' landscape w buffer immediately adjacent to the freeway,and parking spaces in the parking lot. Construction K of the Interstate 215 Improvements prevents Developer's ability to comply with certain E rn provisions of the Development Agreement related to landscape buffering adjacent to the Q Interstate 215, and with the 25' landscape buffer required by the Freeway Overlay zone for > properties adjacent to the freeway. c m E. Developer continues to desire to carry out the intent of the Development E Agreement in a manner which is responsive to market conditions as they exist from time to time. Q To that end, Developer has requested certain amendments to the Development Agreement, as more particularly set forth in this First Amendment,and the City is agreeable to the same. u= m F. On 20 the City Council adopted Resolution No. � ("Enacting Resolution"), which enacted this First Amendment and the v Enacting Resolution became effective on the date of its adoption. y U G. By adopting the Enacting Resolution,the City Council reaffirms the Development Agreement as amended by this First Amendment. Hereafter,each reference to the Development c c Fv A .d.t W Devc11.Ag .113 b 08 RED E W9WOW-777817.1 U R Q Packet P9, 81 6.A.c Agreement shall be deemed to be a reference to the Development Agreement,as amended by this First Amendment. IN CONSIDERATION of the mutual covenants and conditions contained in this First Amendment,the parties agree as follows: OPERATIVE PROVISIONS 1. Phasing. = m (a) Paragraph 2(t) of the Development Agreement is deleted in its entirety (and particularly, the "Expected Completion Date" provisions of Paragraph 2(f)) and the c following is substituted in its place: ro U a "Developer intends that the Development of the Inland Center Mall will m be phased as follows: � Phase Improvements ° m I Construct New Anchor 1 with approximately 140,000 a square feet of gross building area. Construct New Anchor 2 Z with approximately 160,000 square feet of gross building Q area. Construct additional lower level retail shopping mall improvements with approximately 3,700 square feet of N gross building area, additional first level retail shopping mall improvements with approximately 7,400 square feet of `- gross building area. Construct additional second level retail shopping mall improvements with approximately 142,505 square feet of gross building area. Construct new non-retail improvements with approximately 75,000 square feet of © gross building area. Construct three adjacent parking w structures accommodating approximately 2,220 autos. E II Construct New Anchor 3, with approximately 240,000 °7 Q square feet of gross building area. Construct additional > d second level retail shopping mall improvements with 0 approximately 16,000 square feet of gross building area. c Construct new non-retail improvements with approximately a) 25,000 square feet of gross building area. Construct an Q adjacent parking structure accommodating approximately w 800 autos. From time to time, and as circumstances a warrant, Developer intends to update the description of _ Phase II to account for market demand, subject to approval requirements stated in "Operative Provisions" in `0 subparagraph 3(a)of the Development Agreement. m U v c Notwithstanding the foregoing, if by May 1, 2026, Developer fails to m obtain a certificate of occupancy from the City(or the equivalent approval c by the City, if the City no longer issues certificates of occupancy at that 2 d Fi AmmAmm[W Rv]Wp t A®e M-13 b 08 RED E t W59US00 7778I7.1 � a PacketPg. 82 6.A.c time),with respect to the construction of the improvements in Phase I or if by May 1, 2031, Developer fails to obtain a building permit with respect to the improvements in Phase II, then at the election of the City,the City may require Developer to agree to an amendment of this Agreement to provide that, during the remainder of the term of this Agreement, the Development of the Inland Center Mall will be governed by the land use provisions of the City's Development Code (Title 19 of the Municipal panted: Code),as they exist at the time of actual Development, Consistent with the foregoing, the 20-year term of this Agreement as set forth in oaragrenh 1,is extended to and including April 30,2036." `m c (b) Notwithstanding any contrary provision in the Development Agreement, tj including in Exhibit "D" of the Development Agreement, Developer may phase the a Development of the Inland Center Mall in a manner that, in Developer's sole discretion, m responds to applicable market conditions. 5 2. Parking. Paragraph 6(g)of the Development Agreement is deleted in its entirety o and the following is substituted in its place: 6 "Developer will be required to provide onsite parking at a ratio of 4 parking Z spaces for each 1,000 square feet of gross leaseable area which is occupied from O time to time in the buildings, in connection with Developer's use of the Inland r Center Mall as contemplated in the Development Agreement." N M r 3. Annexation. In the event Developer acquires the land which is depicted as "2.6 acres" in Exhibit "P' of the Development Agreement, such land will, as of the date of Developer's acquisition(as documented by recordation of a deed conveying title to such land to Developer), automatically be deemed annexed into the Development Agreement and, from and _ after such date,will be subject to all of the provisions of the Development Agreement. p w 4. Downtown Cinema. City and Developer agree that Developer and its successors and assigns presently have the legal right to develop and operate a cinema/theater complex at the E Inland Center Mall,as it may be contemplated from time to time(including all legal parcels and Q all parking areas presently comprising the Inland Center Mall),with no limitation on the number y of screens within the cinema/theater complex. Such legal right is based on land use entitlements p a applicable to the Inland Center Mall as of May 1. 1996,which land use entitlements were vested = m by this Agreement as of its effective date of May 1. 1996. E Q City and Developer acknowledge and agree that such vested land use entitlements regulate land use at the Inland Center Mall, notwithstanding the subsequently approved LL amendment to City's Development Code, adopted July 5 2011,pursuant to Ordinance No MC- 1356 ("2011 Development Code Amendment') and, therefore,supersede and preempt the 2011 2 Development Code Amendment. The 2011 Devclo inent Code Amendment limits the location v of cinema/theater complexes to three screens or less in areas of the City other than within the c m downtown Main Street Overlay District, as that term is used in the 2011 Development Code U v Amendment. e m c 3 Fire)Ammdmmt a Oevelapmem AWee�nme-13 b OS RED E W9 —777817.1 L U to Q rrel• Packet Pg. 83 Notwithstanding the legal right of Develoner and its successors and assigns to develop and operate a cinema/theater complex at the Inland Center Mall, with no limitation on the number of screens within the cinema/theater complex, Developer agrees that it will refrain from doing so unless and until the occurrence or failure, as the case may be, of any of the following: (a) if the present negotiations between the San Bernardino Economic Development Agency or the San Bernardino Economic Development Corporation and Regal _ Entertainment Group or another operator of First Run Theaters, as First Run Theater is defined below ("First Run Theater Operator") which are intended to facilitate the First Run Theater Operator's take over, refurbishment and operation of a cinema/theater complex as a "First Run Theater"at the cinema/theater complex presently located at the northwest comer of E Street and d Fourth Street in San Bernardino t"Downtown Cinema').are not consummated by September 30, U 2012, or First Run Theater operations have not commenced at the Downtown Cinema by Jute 30.2013. c As used herein, a "First Run Theater' means a first-class, multiplex c theater containing at least four(4)screens and having stadium-stvle seating,that runs exclusively mainstream first-run films from any major, nationally recognized film company and/or O° distributor.during the initial new release period of each film' G z i a (b) If after First Run Theater operations have commenced at the Downtown Cinema. such First Rini Theater operations are downsraded so they are no longer a First Run r. N Theater ooemtion; ry (c) If after First Run Theater operations have commenced at the Downtown Cinema_ all operations cease. However, cessation of operations for a period not exceeding six consecutive months for remodeling Purooses shall not be deemed a cessation of operations under this clause(c),provided that First Run Theater operations recommence at the Downtown Cinema within such six consecutive month period; O W On the occurrence or failure as the case may be of anv of the conditions described in clauses (a) through (c) above, Developer's agreement to refrain from developing and/or operating a cinema/theater complex at the Inland Center Mall shall immediately and a automatically terminate and Developer and its successors and assigns shall thereafter be free to develop and/or operate a cinema complex at Inland Center Mall, with no limitation on the 2 number of screens within the cinema/theater complex, pursuant to Developer's vested right y described above. E a As specific consideration for Developer's agreements in this paragraph, U) Developer will have no further obligations under paragraphs 5, 6 and 7 of Exhibit "I" of the a Development Aareement 5. No Default. As of the Effective Date of this First Amendment, City and Developer acknowledge and agree that neither party is in default of any provision of the c m Development Agreement. c 6. Unnecessary Provisions. Paragraphs 35 and 36 of the Development Agreement cc are no longer necessary and are deleted in their entirety. c c 4 d First Am o—t to Oeve OMMt Agmment-13 to 08 RFD E R'W6M-777817.1 U R N_ a Packet Pg:84 ?- 6.A.c 7. Defined Terms. Except as otherwise defined in this First Amendment, all capitalized terms in this First Amendment will have the same meanings as are ascribed to those terms in the Development Agreement. 8. Address for Notices and Other Communications to Developer. Developer's address for notice under the Development Agreement is changed to the following: WM Inland LP c/o Macerich Company c 401 Wilshire Boulevard,Suite 700 Santa Monica,California 90401 v Attn: Chief Legal Officer U 9. Incorporation of Recitals. The Recitals in this First Amendment are material and are incorporated herein by reference. c 10. Development Agreement Continues in Full Force and Effect. In any case where a specific section in the Development Agreement is amended by this First Amendment,the parties ° intend to also amend any other provision in the Development Agreement which is related to the Q' same subject matter. Accordingly, in the event of any conflict between any provision of this Z First Amendment and any provision in the Development Agreement,the conflicting provision in ¢ this First Amendment shall supersede and control. Except as amended by this First Amendment, all of the provisions of the Development Agreement will continue in full force and effect. n N M [SIGNATURES FOLLOW] In w E rn a v a C Ol E Q N LL v C d U v c m C C 5 Firs)A .dm t W D elop Ag wt-13 b08 MD E Wwo N.-'m817A U R Q Packet Pg. 85 6.A.c CITY City of San Bernardino,a municipal corporation By: Charles McNeely City Manager m L d ATTEST: m U By: c Rachel Clark t6 C City Clerk 0 rn APPROVED AS TO FORM: o z 0 r By: N, James F.Penman City Attorney _ E rn Q v [ADDITIONAL SIGNATURE FOLLOW] C d E a N L LL A L d C d U c m c 6 °' First Anm tto Dc Wtnoat Agrsmcot-13 to 08 RED E wsw.aoo-men. L u N Q V Packet Pg. 86 6.A.c DEVELOPER WM INLAND LP, a Delaware limited partnership By: Walton Inland GP,L.L.C., a Delaware limited liability company, its general partner By: Walton Inland Holdings IV,L.P., 2 a Delaware limited partnership, its sole member c m By: Walton Inland Holdings IV GP,L.L.C., U a Delaware limited liability company, a C its general partner c By: Walton REIT Holdings IV,L.L.C., a Delaware limited liability company, its sole member w By: Walton REIT IV,L.L.C., ° a Delaware limited liability company, Z its managing member O By: Walton Street Real Estate Fund IV,L.P., N a Delaware limited partnership, M its managing member By: Walton Street Managers IV,L.P., a Delaware limited partnership, 1D its general partner By: WSC Managers IV,Inc., w a Delaware corporation, Its general partner E rn Q By: Name: Title: C m E a LL t6 C) C 0) U a C R C C 7 Firs)Ammdmrnl W Dcv1a nt Age W-131008 RED E W950A'p--ID817.1 u t0 a Packet Pg. 87 6.A.c STATE OF ) COUNTY OF ) On _,20_,before me, ,a Notary Public in and for said County and State,personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in R his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or entity upon behalf of which the person(s)acted,executed the instrument. v I certify under PENALTY OF PERJURY under the laws of the State of California,that the U foregoing paragraph is true and correct. C WITNESS my hand and official seal. 0 (Seal) o Notary Public Z 0 r N M r STATE OF ) COUNTY OF ) w On 20.before me, a E Notary Public,in and for said County and State,personally appeared M who proved to me on the > basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the p within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or entity upon behalf of which the person(s)acted,executed the instrument E I certify under PENALTY OF PERJURY under the laws of the State of California,that the LL N foregoing paragraph is true and correct. WITNESS my hand and official seal v c (Seal) v Notary Public m c c v FiMg ftd t Nn1WMMt Apr -1]b M RFD E U R Packet Pg. 88 6.A.d RECORDING REQUESTED BY: GRESHAM SAVAGE NOLAN&TILDEN AND WHEN RECORDED,MAIL TO: = R Gresham Savage Nolan& Tilden `w 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408 v Attn: Mark A. Ostoich,Esq. m (THIS SPACE FOR RECORDER'S USE ONLY) o rn O Z Q FIRST AMENDMENT TO DEVELOPMENT AGREEMENT r FOR THE INLAND CENTER MALL M o- Between Z THE CITY OF SAN BERNARDINO, a Municipal Corporation 2 c and E WM INLAND LP, E a Delaware limited partnership a 0 R d C N U c R S c m E s U R Q Firer Am mt to Development Agreement 13 WM-000-.777455.1 Packet Pg. 89 6.A.d FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR THE INLAND CENTER MALL This First Amendment to Development Agreement for the Inland Center Mall ("First = m Amendment") is entered into effective 20 between the City of San Bernardino, a municipal corporation ("City") and WM Inland LP, a Delaware limited partnership, doing business as Inland Center("Developer"). v A. Effective May 1, 1996, City and Developer's predecessor-in-interest, Mano Management Company, Inc., a Delaware corporation ("Mano"), entered into a Development Agreement regarding anticipated development at the Inland Center Mall ("Development o Agreement"). The Development Agreement was enacted on April 1, 1996, by Resolution No. 96-84. z6 4 B. Developer is the successor-in-interest of Mano and has received from Mano the transfer of all of Mano's rights and obligations under the Development Agreement. N M r C. Since 1996, market conditions have adversely affected regional malls throughout the United States. Such market conditions include,without limitation, the consolidation of major tenants, leading to the departure of traditional major tenants from the marketplace and changing consumer patterns, leading to a preference for life-style oriented developments that combine Z retail, restaurant and entertainment uses. Despite reasonable efforts, such market conditions w have prevented Mano and Developer from meeting certain milestone dates for development, as U envisioned by City and Developer at the time the Development Agreement was enacted. d D. In addition, the California Department of Transportation ("Caltrans") recently a widened Interstate 215 by constructing two additional lanes immediately adjacent to the Inland E Center Mall ("Interstate 215 Improvements"), on property previously containing a 15' landscape a buffer immediately adjacent to the freeway, and parking spaces in the parking lot. Construction o of the Interstate 215 Improvements prevents Developer's ability to comply with certain , provisions of the Development Agreement related to landscape buffering adjacent to the Interstate 215, and with the 25' landscape buffer required by the Freeway Overlay zone for properties adjacent to the freeway. c E. Developer continues to desire to carry out the intent of the Development c Agreement in a manner which is responsive to market conditions as they exist from time to time. c To that end, Developer has requested certain amendments to the Development Agreement, as more particularly set forth in this First Amendment, and the City is agreeable to the same. m F. On 20� the City Council adopted Resolution No. ("Enacting Resolution"), which enacted this First Amendment and the Enacting Resolution became effective on the date of its adoption. G. By adopting the Enacting Resolution, the City Council reaffirms the Development CAgreement as amended by this First Amendment. Hereafter, each reference to the Development 1 First Amendment to Development Agreement-13 WWO-000--777455.t Packet Pg. 90 Agreement shall be deemed to be a reference to the Development Agreement, as amended by this �.. First Amendment. IN CONSIDERATION of the mutual covenants and conditions contained in this First Amendment, the parties agree as follows: OPERATIVE PROVISIONS = m 1. Phasine. d C v (a) Paragraph 2(f) of the Development Agreement is deleted in its entirety (and particularly, the "Expected Completion Date" provisions of Paragraph 2(fl) and the following is substituted in its place: 5 0 "Developer intends that the Development of the Inland Center Mall will be phased as follows: o z Phase Improvements o I Construct New Anchor 1 with approximately 140,000 M square feet of gross building area. Construct New Anchor 2 with approximately 160,000 square feet of gross building area. Construct additional lower level retail shopping mall improvements with approximately 3,700 square feet of gross building area, additional first level retail shopping z ``- mall improvements with approximately 7,400 square feet of W gross building area. Construct additional second level retail U shopping mall improvements with approximately 142,505 0 square feet of gross building area. Construct new non-retail 5 improvements with approximately 75,000 square feet of E gross building area. Construct three adjacent parking a structures accommodating approximately 2,220 autos. 0 11 Construct New Anchor 3, with approximately 240,000 E square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 16,000 square feet of gross building area. Construct new non-retail improvements with approximately 25,000 square feet of gross building area. Construct an adjacent parking structure accommodating approximately 800 autos. From time to time, and as circumstances E warrant, Developer intends to update the description of a Phase II to account for market demand, subject to approval a requirements stated in "Operative Provisions" in subparagraph 3(a) of the Development Agreement. Notwithstanding the foregoing, if by May 1, 2026, Developer fails to obtain a certificate of occupancy from the City (or the equivalent approval by the City, if the City no longer issues certificates of occupancy at that 2 Fist Amendment to Development Agreement-13 WW-M--Mass.t Packet Pg. 91 time), with respect to the construction of the improvements in Phase I or if by May 1, 2031, Developer fails to obtain a building permit with respect to the improvements in Phase II, then at the election of the City, the City may require Developer to agree to an amendment of this Agreement to provide that, during the remainder of the term of this Agreement, the Development of the Inland Center Mall will be governed by the land use provisions of the City's Development Code (Title 19 of the Municipal Code), as they exist at the time of actual Development. m Consistent with the foregoing, the 20-year term of this Agreement as set forth in paragraph 1, is extended to and including April 30, 2036." (b) Notwithstanding any contrary provision in the Development Agreement, S including in Exhibit "D" of the Development Agreement, Developer may phase the o Development of the Inland Center Mall in a manner that, in Developer's sole discretion, responds to applicable market conditions. Z a 2. Parking. Paragraph 6(g) of the Development Agreement is deleted in its entirety °. and the following is substituted in its place: M "Developer will be required to provide onsite parking at a ratio of 4 parking spaces for each 1,000 square feet of gross leaseable area which is occupied from time to time in the buildings, in connection with Developer's use of the Inland Center Mall as contemplated in the Development Agreement." z a 3. Annexation. In the event Developer acquires the land which is depicted as "2.6 acres" in Exhibit "J" of the Development Agreement, such land will, as of the date of Developer's acquisition (as documented by recordation of a deed conveying title to such land to Developer), automatically be deemed annexed into the Development Agreement and, from and $ after such date,will be subject to all of the provisions of the Development Agreement. E a 4. Downtown Cinema. City and Developer agree that Developer and its successors o and assigns presently have the legal right to develop and operate a cinema/theater complex at the Inland Center Mall, as it may be contemplated from time to time (including all legal parcels and all parking areas presently comprising the Inland Center Mall), with no limitation on the number of screens within the cinema/theater complex. Such legal right is based on land use entitlements applicable to the Inland Center Mall as of May 1, 1996, which land use entitlements were vested m by this Agreement as of its effective date of May 1, 1996. c City and Developer acknowledge and agree that such vested land use entitlements v regulate land use at the Inland Center Mall, notwithstanding the subsequently approved amendment to City's Development Code, adopted July 5, 2011, pursuant to Ordinance No. MC- Y 1356 ("2011 Development Code Amendment") and, therefore, supersede and pre the 2011 a Development Code Amendment. The 2011 Development Code Amendment limits the location of cinema/theater complexes to three screens or less in areas of the City other than within the downtown Main Street Overlay District, as that term is used in the 2011 Development Code Amendment. 3 Fink Amendment m Development Agreement-13 W"0-000--777455.t Packet Pg. 92 Notwithstanding the legal right of Developer and its successors and assigns to develop and operate a cinema/theater complex at the Inland Center Mall, with no limitation on the number of screens within the cinema/theater complex, Developer agrees that it will refrain from doing so unless and until the occurrence or failure, as the case may be, of any of the following: (a) If the present negotiations between the San Bernardino Economic m Development Agency or the San Bernardino Economic Development Corporation and Regal Entertainment Group or another operator of First Run Theaters, as First Run Theater is defined below ("First Run Theater Operator"), which are intended to facilitate the First Run Theater Operator's take over, refurbishment and operation of a cinema/theater complex as a "First Run Theater" at the cinema/theater complex presently located at the northwest comer of E Street and m Fourth Street in San Bernardino ("Downtown Cinema"), are not consummated by September 30, c 2012, or First Run Theater operations have not commenced at the Downtown Cinema by June ° 30, 2013. 6 Z As used herein, a "First Run Theater" means a first-class, multiplex o theater containing at least four(4) screens and having stadium-style searing, that runs exclusively mainstream first-run films from any major, nationally recognized film company and/or M distributor, during the initial new release period of each film; (b) If after First Run Theater operations have commenced at the Downtown IL I Cinema, such First Run Theater operations are downgraded so they are no longer a First Run Theater operation; Z �..,. w (c) If after First Run Theater operations have commenced at the Downtown Cinema, all operations cease. However, cessation of operations for a period not exceeding six consecutive months for remodeling purposes shall not be deemed a cessation of operations under E this clause (c), provided that First Run Theater operations recommence at the Downtown Cinema within such six consecutive month period; E a On the occurrence or failure, as the case may be, of any of the conditions o described in clauses (a) through (c) above, Developer's agreement to refrain from developing m and/or operating a cinema/theater complex at the Inland Center Mall shall immediately and automatically terminate and Developer and its successors and assigns shall thereafter be free to develop and/or operate a cinema complex at Inland Center Mall, with no limitation on the number of screens within the cinema/theater complex, pursuant to Developer's vested right r m described above. r G As specific consideration for Developer's agreements in this paragraph, E Developer will have no further obligations under paragraphs 5, 6 and 7 of Exhibit "I" of the s U Development Agreement. a 5. No Default. As of the Effective Date of this First Amendment, City and Developer acknowledge and agree that neither party is in default of any provision of the Development Agreement. (� 6. Unnecessary Provisions. Paragraphs 35 and 36 of the Development Agreement ``- are no longer necessary and are deleted in their entirety. 4 First Amendment to Development Agreement-13 W99O1 --777455.1 7. Defined Terms. Except as otherwise defined in this First Amendment, all capitalized terms in this First Amendment will have the same meanings as are ascribed to those terms in the Development Agreement. 8. Address for Notices and Other Communications to Developer. Developer's address for notice under the Development Agreement is changed to the following: WM Inland LP c/o Macerich Company 401 Wilshire Boulevard, Suite 700 Santa Monica, California 90401 Attn: Chief Legal Officer o 9. Incorporation of Recitals. The Recitals in this First Amendment are material and o are incorporated herein by reference. o 6 10. Development Agreement Continues in Full Force and Effect. In any case where a a specific section in the Development Agreement is amended by this First Amendment, the parties intend to also amend any other provision in the Development Agreement which is related to the N same subject matter. Accordingly, in the event of any conflict between any provision of this First Amendment and any provision in the Development Agreement, the conflicting provision mi this First Amendment shall supersede and control. Except as amended by this First Amendment, all of the provisions of the Development Agreement will continue in full force and effect. C z a w J [SIGNATURES FOLLOW] v c v E a E rn a d 0 v r C R G C lU E r U m a 5 FiM Amendment to Development Agreements 13 W99Om o..77455.1 Packet Pg.94 CITY City of San Bernardino, a municipal corporation By: Charles McNeely City Manager = R m c v U v c ATTEST: c By. o Rachel Clark 0 City Clerk z Q 0 APPROVED AS TO FORM: N M r V By Q James F. Penman w City Attorney 0 v C N E Q E rn Q v R d [ADDITIONAL SIGNATURE FOLLOW] ,3 G (6 C r C d E L U t6 Q �w 6 First Amendment to Development Agreement-13 WW-M--M455.i Packet Pg. 95 6.A.d DEVELOPER WM INLAND LP, a Delaware limited partnership By: Walton Inland GP, L.L.C., a Delaware limited liability company, its general partner d By: Walton Inland Holdings IV, L.P., a Delaware limited partnership, U its sole member r By: Walton Inland Holdings IV GP, L.L.C., a Delaware limited liability company, its general partner 0 By: Walton REIT Holdings IV, L.L.C., z a Delaware limited liability company, o its sole member r N By: Walton REIT IV, L.L.C., a Delaware limited liability company, its managing member By: Walton Street Real Estate Fund IV,L.P., _ a Delaware limited partnership, z �. its managing member w J By: Walton Street Managers IV, L.P., 0 a Delaware limited partnership, its general partner E E By: WSC Managers IV, Inc., ° Q a Delaware corporation, o Its general partner — m By: c Name: U Title: m S c v E L U R Q 7 First Amerdmenl to Development Agreement-13 wmo-ooO--77/455.1 Packet Pg. 96 1 STATE OF COUNTY OF— I On _ 20.before me, a Notary Public, in and for said County and State,personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the L within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or entity upon behalf of which the person(s) 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. ° g g P SmP WITNESS my hand and official seal. z° a (Seal) °. Notary Public N M r C Z Q W J U STATE OF ) c N COUNTY OF ) E m On 20. before me, a a v Notary Public,in and for said County and State,personally appeared ° who proved to me on the M basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the `m within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument a the person(s), or entity upon behalf of which the person(s) acted,executed the instrument. 2 I certify under PENALTY OF PERJURY under the laws of the State of California, that the foregoing paragraph is true and correct. E z U WITNESS my hand and official seal. a (Seal) Notary Public Feet Amepdmept b De elopmem Agreement-13 WM-taro--777455.1 Packet Pg. 97 6.A.e 1654.txt At the request of Mark ostoich, attorney for Inland Center Mall , added Letter, Redlined and clean version of Oev. Agmt. Amend. from Henry Empeno, City Atty. Ofc. C; L d C d U c R C r O r O Z a 0 N M r is L d M d U C R C r O r z Z a 0 n N M Y C d E t U a Page 1 Packet Pg. 98 6.A.f m v c m U v c m c 0 m 0 z a 0 N M N E v > O Q E PUBLIC IMPROVEMENTS Q x x w E m v 0 m m m U c m c c d E L U R a EXHIBIT "I" PacketPg. 99 6.A.f PUBLIC IMPROVEMENTS t. Prior to issuance of Certificate of Occupancy for Phase I of the project, the developer shall provide the following improvements at the intersection of inland Center Drive at Mill/"E" Streets as follows: d U a) Re-stripe "E" Street north and south of Mill Street to provide an additional left-tum lane on the nort hbound approach. c b) West of "E" Street, remove the median island on Mill Street and widen r both the north side and south side by 3 feet, achieved by narrowing the d sidewalks and re-striping Mill Street east and west of "E" Street to Z provide for eastbound approach lanes as follows: a left-turn lane, a a through lane, a shared through-right turn lane to southbound "E" Street, o and a right-turn lane which serves both southbound Inland Center Drive and "E" Street. C° y c) Widen Inland Center Drive by 3 feet minimum on the north side and by E 1 foot minimum on the south side, and re-stripe for westbound to provide a shared Zane ° Mill Street & northbound "E" Street a through lane for E northbound "E" Street only, a lane for eastbound Mill Street only, and a shared lane for eastbound Mill S " Street and southbound E" Street. � a Upgrade existing intersection signing for the new lane configuration, t X e) Existing traffic signal heads shall be laced in their r w the new traffic lane configuration. This may require the odification of E existing mast arm signal head placement or by replacing signal poles and d a Providing longer mast arms to achieve the proper alignment. Should the development of Phase I occur in sub-phases,P this measure shall nt d implemented prior to issuance of Certificate of Occupancy for the first component that is completed. � v U 2. Prior to issuance of Certificate of Occupancy for P c developer shall provide the following improvements for tthe intersection of Orange c Show Road and "E" Street as follows: v E a) Widen "E" Street north of Orange Show Road on the west side by 1 foot L U minimum and re-stripe "E" Street north and south of Orange Show Road a to provide dual left-turn lands on both the northbound and southbound approaches. EXHIBIT "I" Page 1 of 3 Packet Pg. 100 b) Widen Orange Show Road cast of 'E" Street by 6 feet on the north side and 4 feet on the south side to provide for westbound approach lanes as - follows: two left-tum lanes, two through lanes, and a right-turn lane. C) Widen Orange Show Road west of "E" Street by 2 feet on the south side d and re-stripe to provide for westbound approach lanes as follows: two U left-turn lanes (the inner, eastbound through lane g east of the 1-215 `m off-ramp would become a forced left-turn lane at "E" Street), a through 5 lane and a shared through/right-turn lane. 0 d) Modify the traffic signal for eight phase operation. 6 0 z e) Existing traffic signal heads shall be placed in their proper alignment to 0 the new traffic lane configuration. This may require the modification of existing mast arm signal head placement or by replacing signal poles and providing longer mast arms to achieve the proper alignment. Should the development of Phase I occur in sub-phases, this measure shall be E implemented prior to issuance of Certificate of Occupancy for the first component N that is completed, o CL E 3. Prior to issuance of Cerdficate of Occupancy for Phase I of the project, the 3 developer shall upgrade and modify and improve the following traffic signals: s EL a) "E' Street/Central Avenue = X W b) 'E" Street/Benedict Street E rn C) Inland Center Drive/Adel] Street 0 d) Inland Center Drive/'G" Street m The following features shall be incorporated rporated into the design of the above signals: U c Interconnection/coordination along "E" Street from Orange Show m Road to Mill Street, along Inland Center Drive from I-215 to Mill c Street & 'E" Street. c m E (2) Replacement of non-standard signal poles and mast arms with standard poles, mast arms, and signals (incorporate Protective/Permissive signal phasing hen a 8 possible). EXHIBIT all Page 2of3 Packet Pg. 10, 6.A.f (3) Removal of existing median poles/islands from all signalized intersections modified by the project. (4) Add detection loops on all phases of all signals, R 4. Prior to issuance of Certificate of Occupancy for Phase I of the project, the 2 developer shall develop landscape ` P pe median along Inland Center Drive. he median improvements shall prohibit left-turns outbound from the project at the a Mail Driveway (North) and Inland Center Drive and the Mall Driveway (South) c and Inland Center Drive. _ 0 5. Prior to issuance of Certificate of Occupancy for Phase 1, the applicant shall make arrangements with the City of San Bernardino Department of Public Works, City z Engineer to participate in the costs of freeway mitigation due to the project o �' p a impacts, unless alternative funding sources are identified. The amount of the Freeway mitigation shall be determined after acceptance of the Traffic Impact M Analysis by the City and SANBAG, 6. Prior to issuance of Certificate of Occupancy for Phase 11 of the project, the developer shall contribute an amount equal to 5% of the cost to midgatelimprove >o the intersection of Mount Vemon Avenue and Mill Street, as identified in the traffic stud This ° ® Y• equates ;o a fair-share cash contribution of$4,t)OO,Op each E phase. a 7 Prior to issuance of Certificate of Occupancy for Phase II of the project, the a developer shall contribute an amount equal to 5% of the cost to midgate/improve w the intersection of Hunts Lane and Redlands Boulevard, as identified in the traffic x study. This equates to a fair-share cash contribution of$9,000.00, each phase, rn a 0 d C d U v c m E c N E L U R Q EXHIBIT "I' Page 3 of 3 Packet Pg. 102