HomeMy WebLinkAbout2016-174 1 RESOLUTION NO. 2016-174
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF: 1)
3 THE FIRST AMENDMENT TO THE EXCLUSIVE NEGOTIATION AGREEMENT
4 (ENA) AND 2) THE THEATER SQUARE DEVELOPMENT SERVICES
AGREEMENT (DSA) WITH AECOM TECHNICAL SERVICES, INC. AND THE
5 FRANSEN COMPANY, INC. FOR THE REDEVELOPMENT OF CERTAIN REAL
PROPERTY COMPRISING APPROXIMATELY 48.5 ACRES, COMMONLY
6 KNOWN AS CAROUSEL MALL AND REGAL THEATERS, LOCATED
7 GENERALLY AT 300 AND 450 NORTH "E" STREET AND AT THE NORTHWEST
CORNER OF FOURTH STREET AND "E" STREET, SAN BERNARDINO,
8 CALIFORNIA
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10 WHEREAS, on November 2, 2015, Mayor and Common Council approved an
11 Exclusive Negotiation Agreement with AECOM Technical Services, Inc. and the Fransen
12 Company, Inc. (AECOM/Fransen) with the intent to redevelop the Carousel Mall and Theater
13 Square sites;
14 WHEREAS, on December 31, 2015, the California State Department of Finance
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16 approved the Long Range Property Management Plan (LRPMP) for the Successor Agency to
17 the Redevelopment Agency of the City of San Bernardino;
18 WHEREAS, the Carousel Mall site is listed as site #20 on the LRPMP and Theater
19 Square is listed as site 421 on the LRPMP. Furthermore, both sites were approved as hold for
20 future development;
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22 WHEREAS, the City and AECOM/Fransen have negotiated in good faith and made
23 significant progress toward the future development of the overall sites;
24 WHEREAS, it is in the best interests of the City, and its residents for the City to
25 execute the First Amendment to the ENA and to execute the Theater Square (DSA).
26 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
27
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
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I SECTION 1. The Mayor and Common Council find that the above-stated Recitals
2 are true and hereby adopt and incorporate them herein.
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4 SECTION 2. The Mayor and Common Council hereby approve the First Amendment
5 to the Exclusive Negotiation Agreement (ENA) approved on November 2, 2015, and
6 authorize and direct the City Manager to take such steps and sign such documents as
7 necessary to Execute the First Amendment to the ENA, including but not limited to the
8 making of clerical or non-substantive revisions to the ENA as may be necessary to effectuate
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its intent.
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11 SECTION 3. The Major and Common Council hereby approve the Development
12
Services Agreement (DSA), and authorize and direct the City Manager to take such steps and
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14 sign such documents as necessary to Execute the DSA, including but not limited to the
15 making of clerical or non-substantive revisions to the DSA as may be necessary to effectuate
16 its intent.
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18 SECTION 4. —Compliance with the California Environmental Quality Act.
19 Approval of the First Amendment to the ENA and approval of the DSA is not considered a
20 project under the California Environmental Quality Act (CEQA), pursuant to CEQA
21 Guidelines Section 15378(a).
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SECTION 5. Severability: If any section, subsection, subdivision, sentence, or
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24 clause or phrase in this Resolution or any part thereof is for any reason held to be
25 unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision
26 shall not affect the validity or effectiveness of the remaining portions of this Resolution or any
27 part thereof. The Mayor and Common Council hereby declares that it would have adopted
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1 each section irrespective of the fact that any one or more subsections, subdivisions, sentences,
2 clauses, or phrases be declared unconstitutional, invalid, or ineffective.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF: 1)
2 THE FIRST AMENDMENT TO THE EXCLUSIVE NEGOTIATION AGREEMENT
(ENA) AND 2) THE THEATER SQUARE DEVELOPMENT SERVICES
3 AGREEMENT (DSA) WITH AECOM TECHNICAL SERVICES, INC. AND THE
4 FRANSEN COMPANY, INC. FOR THE REDEVELOPMENT OF CERTAIN REAL
PROPERTY COMPRISING APPROXIMATELY 48.5 ACRES, COMMONLY
5 KNOWN AS CAROUSEL MALL AND REGAL THEATERS, LOCATED
GENERALLY AT 300 AND 450 NORTH "E" STREET AND AT THE NORTHWEST
6 CORNER OF FOURTH STREET AND "E" STREET, SAN BERNARDINO,
7 CALIFORNIA
8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
9 and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
10 15t" day of August, 2016, by the following vote to wit:
11
Council Members: AYES NAYS ABSTAIN ABSENT_
12 MARQUEZ x
13 BARRIOS x
14 VALDIVIA x --
15 SHORETT x
16 NICKEL x
17
RICHARD x
MULVIHILL x
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19 Georgeann Hanna CM�j City Cl--1-
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21 The foregoing Resolution is hereby approved this day of August, 2016.
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23 Lt,,t� L1414
2
24 R. CAREY D IS, Mayor
Approved as to form: City of San B rnardino
25 Gary D. Saenz, City Attorney
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27 By:
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2016-174
SEP 2 12016
8..!
THEATER SQUARE DEVELOPMENT SERVICES AGREEMENT
among
AECOM TECHNICAL SERVICES,INC.
and
THE FRANSEN COMPANY,INC.
and
THE CITY OF SAN BERNARDINO
Effective Date: August 15,2016
16214.001-3044102v11
2016-174
THEATER SQUARE DEVELOPMENT SERVICES AGREEMENT
This THEATER SQUARE DEVELOPMENT SERVICES AGREEMENT (this
"Agreement") is dated as of the Effective Date, and is entered among THE CITY OF SAN
BERNARDINO, a California charter city (the "City"), on the one hand, and AECOM TECHNICAL
SERVICES, INC., a California corporation ("AECOM") (an affiliate of AECOM, a Delaware
corporation formerly known as AECOM Technology Corporation and/or AECOM Technologies),
and THE FRANSEN COMPANY, INC., a California corporation ("Fransen," and together with
AECOM, "AECOM/Fransen"), on the other hand. The City and AECOM/Fransen are sometimes
referred herein collectively as the"Parties", and each individually as a"Party."
RECITALS
A. The City owns or will own certain real property, comprising approximately 5.5 acres
located on the northwest corner of Fourth Street and E Street known as "Theater Square" as
depicted on the "Map of Theater Square" (herein so called) attached hereto as Exhibit "A". A
portion of Theater Square has been leased to Regal Cinemas, Inc. and is improved with a motion
picture Theater (such portion and improvements, collectively, the "Regal Cinemas") operated by
Regal Cinemas, Inc. Theater Square also contains the "Development Properties", comprising the
"Former Theater Space" (located in the same building as the Regal Cinemas) and the "Pad Site,"
as such terms are defined below and shown on the Map of Theater Square.
B. AECOM/Fransen has proposed to: (i)prepare a "Strategic Plan" (as defined below),
detailing the proposed development of Theater Square; (ii) assist the City in the disposition of Regal
Cinemas; and (iii) assist the City in the disposition to and development of the Development
Properties by unaffiliated parties (collectively, the "Project") in accordance with the "Schedule of
Performance"(as defined below).
C. Subject to the approval by the City of the Strategic Plan and subject to the obtaining
of such approvals as may be needed hereafter from the Common Council and/or the Planning
Commission of the City in connection with land use entitlements, the City intends to cooperate in
pursuing arrangements for the disposition of (i)the Regal Cinemas and (ii) the Development
Properties, all in a manner consistent with the approved Strategic Plan and in accordance with all
applicable laws.
AGREEMENT
1. Definitions.
"AECOM/Fransen Internal Costs" is defined in Section 2.2(b).
"Amended Draft Strategic Plan" is defined in Section 3.
"Comprehensive Business Plan" means a plan which delineates in detail the proposed plan
for disposition and development of Theater Square, and which includes the following: detailed
estimated Project Costs, revenues, responsibilities, capital requirements, and capital sources.
"Development Fee" means an amount equal to 33% of the Net Disposition Proceeds of the
sale, lease or other disposition of the Development Properties.
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2016-174
"Development Properties" means those properties composed of the Former Theater Space
and Pad Site, as shown on the Map of Theater Square.
"Draft Strategic Plan" means a draft of the Strategic Plan as more particularly described in
Section 2 hereof.
"Effective Date" means the date that AECOM/Fransen and the City have duly executed this
Agreement.
"Finder's Fee" means an amount equal to four percent (4%) of Net Disposition Proceeds
with respect to the sale of the Regal Cinemas. Notwithstanding anything herein to the contrary,
AECOM/Fransen shall be responsible for any commissions and/or fees due Third Party Brokers in
connection with the sale of the Regal Cinemas.
"Former Theater Space" is that area located within the building containing the Regal
Cinemas as shown on the Map of Theater Square.
"Gross Disposition Proceeds" means all consideration payable with respect to the sale of the
Regal Cinemas and/or sale, lease or other disposition of any of the Development Properties.
"Initial Submittal Date" is on or before sixty(60)days from the Effective Date.
"Map of Theater Square" is defined in Recital A and attached hereto as Exhibit A.
"Net Disposition Proceeds" means Gross Disposition Proceeds from the sale of the Regal
Cinemas and/or sale, lease or other disposition of all or any portion of Development Properties less
applicable Normal and Customary Costs of Disposition for such transaction.
"Normal and Customary Costs of Disposition" means such costs that are incurred in
connection with the disposition of the Regal Cinemas and/or all or any portion of the Development
Properties, including without limitation, transaction-related legal costs and other consulting costs,
tenant improvement allowance and landlord-required tenant improvement work, title and other
closing costs, and survey costs. Fees paid to Third Party Brokers in connection with the applicable
Development Property will be included in the Normal and Customary Costs of Disposition of the
applicable Development Property. Normal and Customary Costs of Disposition will also include
third party costs incurred by the City for tenant design criteria, architecture, and engineering but only
if related to the buildout of space. Any such costs shall be approved in the reasonable satisfaction of
the City.
"Ongoing Development Requirements" means the substantial completion and opening of
full service or fast casual dining restaurants occupying at least 2,500 square feet within the Former
Theater Space, as described in Section 1.03(1)of the Regal Cinema Lease.
"Pad Site" means the approximately 16,000 square feet of vacant land as shown on the Map
of Theater Square.
"Project" is defined in Recital B.
"Regal Cinemas" is defined in Recital A.
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"Regal Cinemas Lease" means that certain lease between the San Bernardino Economic
Development Corporation and Regal Cinemas, Inc., dated as of January 4, 2012; a copy of the Regal
Cinemas Lease is on file with the City as a public record.
"Report(s)" is defined in Section 5.1.
"Schedule of Performance" means the schedule to be included in the Strategic Plan setting
forth the timing and deadlines for the implementation of the Strategic Plan.
"Strategic Plan" or "Approved Strategic Plan" means a comprehensive plan for the
disposition, development and use of Theater Square, including the disposition of Regal Cinemas,the
disposition, development and use of the Development Properties, and such other contents as are
required for a Draft Strategic Plan or Strategic Plan under Section 2 hereof.
"Strategic Plan Approval Deadline" means the date which is ninety (90) days after the
initial submission of the Draft Strategic Plan by AECOM/Fransen.
"Theater Square" is defined in Recital A.
"Third Party Brokers" means licensed real estate brokers, agents or finders unrelated to any
Party hereto engaged by either the City or AECOM/Fransen in connection with the sale of the Regal
Cinemas and/or Development Parcels.
2. Strategic Plan.
2.1 Preparation and Submittal of Draft Strategic Plan. AECOM/Fransen shall
prepare, at its cost and expense, and submit to the City by the Initial Submittal Date a Strategic Plan
setting forth in detail: (i) a site plan, including conceptual design guidelines, (ii)the proposed land
use designations for Theater Square; (iii)proposed types of users by category, which may include
examples of specific users; (iv)parking; (v)ingress and egress; (vi) a proposal for the management
of Theater Square; (vii)a proposal for the methodology to market and sell the Regal Cinemas; (viii) a
proposal for the leasing by the City to end users for the operation of full service or fast casual dining
restaurants of not less than 2,500 square feet within the Former Theater Space in satisfaction of the
Ongoing Development Requirements; (ix) a proposal for the sale and/or leasing of the balance of the
Former Theater Space and the Pad Site; (x)a Comprehensive Business Plan for the development of
Theater Square; (xi) provisions under which AECOM/Fransen defends, indemnifies, and holds
harmless the City and its representatives, officials, officers, employees, agents, and volunteers from
claims, losses, suits or damages arising from inaccurate or misleading statements or materials
delivered by AECOM/Fransen to third parties in connection with the disposition and/or development
of Theater Square; (xii) provisions under which AECOM/Fransen obtains or causes the procurement
of insurance for the benefit of the City and its representatives, officials, officers, employees, agents,
and volunteers (naming the City and its representatives, officials, officers, employees, agents, and
volunteers as additional insureds)with respect to claims, losses, suits or damages arising from acts or
omissions of private parties in connection with the disposition and/or development of Theater
Square; (xiii) a proposed term sheet describing covenants, conditions, restrictions and reciprocal
easements for Theater Square (which shall incorporate as applicable the requirements in the Regal
Cinemas Lease); (xiv) acknowledgment by ground lessees and purchasers of property that any
acquisition of property within Theater Square shall be on a "where is, as is" basis with no
representations or warranties as to condition, fitness, suitability or otherwise by the City; (xv) a plan
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for signage within Theater Square; (xvi) identification of other necessary studies; (xvii) analysis of
existing entitlement conditions and any changes thereto necessary to accommodate the
Comprehensive Business Plan; (xviii) a plan for demolition of those structures within Theater
Square, if any, that are not proposed to be used, sold or leased under the Draft Strategic Plan;
(xix) identification of target restaurants and retail users (pricing or lease rates for the Development
Properties, including all components thereof, which may be expressed as fixed numbers or under a
formula provided that the formula is specific, verifiable, fair and reasonable); (xx) summary of
anticipated third party expenses, including engineering, planning, architectural,construction services,
and development management necessary for implementation of the Comprehensive Business Plan
and the proposed source of payment thereof by the City; (xxi) preparation of a detailed project pro
forma showing anticipated costs and disposition revenues; (xxii) a plan and proposal for procuring
necessary physical site assessments; (xxiii) a plan for retaining existing surface parking or
augmenting as necessary; (xxiv) the proposed financial relationship, if any, between Theater Square
and the Carousel Mall;and(xxv)a proposed Schedule of Performance.
2.2 Role of AECOM/Fransen in Implementation of the Strategic Plan.
(a) Subject to approval by the City, AECOM/Fransen will oversee,
manage and direct activities associated with the sale of Regal Cinemas and the sale and/or lease of
the Development Properties by the City in accordance with the Strategic Plan. AECOM/Fransen will
administer and negotiate terms of purchase agreements and/or leases on behalf of the City under
direction of the City Manager or his designee. In consideration of AECOM/Fransen's successful
accomplishment of the disposition of Regal Cinemas in accordance with this subsection 2.2(a), upon
closing of the disposition of Regal Cinemas out of the closing escrow, the City will pay
AECOM/Fransen the Finder's Fee. In consideration of AECOM/Fransen's successful
accomplishment of the disposition of any portion of the Development Properties in accordance with
this subsection 2.2(a), upon closing of the disposition of any portion of the Development Properties,
the City will pay AECOM/Fransen the Development Fee associated with such disposition.
(b) The sale or lease of the Development Properties will be accomplished
in accordance with the Strategic Plan. AECOM/Fransen shall lead negotiations subject to ongoing
consultation with and approval by the City Manager. As part of its efforts, AECOM/Fransen is to
provide, and bear the cost of, each of(i) all of AECOM/Fransen's activities in connection with the
preparation and obtaining approval of the Draft Strategic Plan; (ii) all planning, (iii)marketing
research; (iv)the preparation of marketing materials and marketing of property; (v) project
management by AECOM/Fransen; (vi)accounting; and (vii) legal fees of AECOIVI/Fransen
("AECOMIFransen Internal Costs"). In addition, AECOM/Fransen shall use its reasonable efforts
to arrange for tenants and/or purchasers to pay for: (y)transactional costs of entities other than
AECOM/Fransen and the City; and (z) subject to such tenant improvement allowances as may be
approved by the City as a Project Cost, costs of improvements to property required by purchasers or
lessees as a condition of their leases or purchases.
Notwithstanding (a) and (b) above, no sale of the Regal Cinema may occur
unless and until the Ongoing Development Requirements have been fulfilled, unless otherwise
agreed by the City, acting in its sole and absolute discretion.
(c) AECOM/Fransen shall manage and coordinate the sale or long-term
ground lease by the City of the Pad Site. The Pad Site will be sold and/or leased to developers/users
in an "as is" condition. AECOM/Fransen shall lead all purchase and sale negotiations on behalf of
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itself and the City in coordination with City staff and consultants. If requested and set forth by
AECOM/Fransen in the Strategic Plan this process may involve the retention of Third Party Brokers
(subject to approval by the City Manager). Any commissions for Third Party Brokers with respect to
the sale of the Regal Cinema shall be the obligation of AECOM/Fransen, subject to the last sentence
of this paragraph. Any commissions for Third Parry Brokers identified in the Strategic Plan and/or
retained by the City with respect to the sale, lease, or other disposition of the Development
Properties, shall be the obligation of the City. Any Commissions for Third Party Brokers retained by
the City who are neither included in the Strategic Plan nor otherwise approved by AECOM/Fransen
shall be the obligation of the City.
(d) AECOM/Fransen shall propose in the Draft Strategic Plan any public
improvements anticipated to be required as a condition of approval to any required land use
entitlements for the Project (including potential design and construction of a public park adjoining
restaurant pads at 4th and E Streets).
A draft Strategic Plan including all of the elements described in this Section 2
that is in detail sufficient for meaningful consideration and review in the sound judgment of the City
shall constitute a "Draft Strategic Plan." AECOM/Fransen shall submit to the City an initial Draft
Strategic Plan on or before the Initial Submittal Date. AECOM/Fransen agrees and acknowledges
that any disposition of property of the City is subject to review and discretionary approval of the
City. AECt and limitation City Charter acknowledges that any property of the City is
property be disposed of at a price that s
requirement and hmitat h'
not less than fair market value.
3. City Review of Draft Strategic Plan. The City agrees that upon receipt of the Draft
Strategic Plan, it will review such plan acting in its sole and absolute discretion. Following such
review, and after discussions with taxing agencies, the City will provide written input to
AECOM/Fransen concerning the Draft Strategic Plan. After the City has provided such input, the
City and AECOM/Fransen will meet and consult concerning the provisions of the Draft Strategic
Plan, the initial evaluation by the City, and input, if any, received from such taxing agencies and
other public agencies, and will seek to implement such modifications as are necessary or appropriate
to the Draft Strategic Plan. Following receipt of such written input and meeting with City
representatives, AECOM/Fransen shall submit an amended draft Strategic Plan ("Amended Draft
Strategic Plan"). Upon receipt of the Amended Draft Strategic Plan,the City will repeat the process
described above, with the goal of approving the Strategic Plan. if the City determines that the Draft
Strategic Plan, as submitted, or an Amended Draft Strategic Plan is satisfactory in its sole and
absolute discretion of the City as a Strategic Plan for development of Theater Square, the Common
Council of the City may then approve such plan which, upon such approval, shall constitute the
"Approved Strategic Plan."
The Approved Strategic Plan must be approved by the Strategic Plan Approval Deadline. If
no Approved Strategic Plan has been approved by the Strategic Plan Approval Deadline,
this
Agreement shall automatically cease to be of any force and effect and the City shall have no
obligations to AECOM/Fransen in connection with this Agreement with respect to the subject matter
hereof or as to any instruments delivered to the City, except that, AECOM/Fransen shall be entitled
to receive a Finder's Fee with respect to any closed transaction for the sale of the Regal Cinemas
and/or a Development Fee with respect to any closed transaction for sale or lease of an interest in the
Development Properties, in either such case entered into by the City prior to the second (2nd)
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anniversary of such termination with any acquirer or end user from whom the City has received a
written proposal or letter of intent for such transaction prior to such termination.
4. Assignment Prohibited. AECOM/Fransen may not assign or delegate any of its consent of the respective rights or obligations under this Agreement t in tsp sole nabsolute discr t on�
which may be granted or denied y City acting
Notwithstanding the foregoing prohibition on assignment, with at least ten (10) days' prior written
notice to the City Manager, AECOM may assign its rights and obligations to an entity over which
AECOM retains majority control, provided AECOM first submits to the City a report nc al
substantiating evidence of AECOM Parent's majority control and the entity's assets,
capability, and applicable experience. Upon any permitted assignment hereunder, AECOM and the
assignee shall execute and deliver to the City such documentation as the City may reasonably
require. When the City receives all such documentation, the assignee shall thereafter be deemed to
be "AECOM," and, along with Fransen, "AECOM/Fransen", under this Agreement for all purposes.
In addition, AECOM may delegate any consulting, engineering,
Plan to r any entity that or
s owned by and under
obligations hereunder or under the App roved Strategic
the control of AECOM Parent.
5. Plans Reports, Studies and Investigations.
5.1 Proprietary Rights. If this Agreement terminates for any reason, without an
Approved Strategic Plan, or following approval of an Approved Strategic Plan if this Agreement is
terminated prior to disposition of both the Regal Cinemas and the Development Properties, the City
may retain all copies of any plans, reports, studies, and/or investigations (collectively, the"Reports";
individually a "Report") respecting Theater Square, if any, that AECOM/Fransen prepares and
submits to the City hereunder concerning the Project.. All Reports will be delivered to the City free
of all claims or interest of AECOM/Fransen. For all such Reports delivered to or coming into the
City's possession,the City may demand and AECOM/Fransen shall transfer to the City,without cost,
all right,title, interest, and ownership rights that AECOM/Fransen has or may have to any or all such
Reports, and will notify the City of known third party rights, if any, in any Report, such as copyright
, trademark, or other use limitations retained by persons other than AECOM/Fransen (that are not
otherwise identified in the Report). The City shall be permitted to rely on and utilize the Reports in
connection with the development and/or sale, lease or disposition of the applicable part of Theater
Square.
5.2 Use of Reports. The City may use, grant, license, or otherwise dispose of the
Reports to any person or entity for the Project or any other purpose. Any City use or the City's
transferee's use of any Report in completed or uncompleted form for other projects or for this
Project, with an entity other than AECOM/Fransen, will be at the City's risk and without liability or
legal exposure to AECOM/Fransen.
6. Indemnity. AECOM/Fransen shall indemnify, defend, and hold the City and its
representatives, officials, officers, employees, agents, and volunteers harmless from any losses,
liabilities, claims, causes of action, injuries, or expenses including, without limitation, reasonable
attorneys' fees and costs arising from, relating to, or in any way connected with (a) the performance
by AECOM/Fransen of any of its obligations under this Agreement or (b) any Report or Reports,
except that the indemnity provided for in this subsection 6(b) shall not apply where the City, or a
transferee of the City, uses a Report in any form for another project or for the Project with an entity
not affiliated with AECOM/Fransen. The limitation on liability set forth in Section 14.6 below shall
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not limit AECOM/Fransen's indemnity obligations under this Section 6 with respect to liability for
third party claims against the City, its representatives, officials, officers, employees, agents, and
volunteers for punitive (but only to the extent directly attributable to the actions of
AECOM/Fransen), indirect, special,and/or consequential damages.
7. Additional AECOM/Fransen Responsibilities. Without limiting any other provision
of this Agreement, AECOM/Fransen shall, during the period of time this Agreement remains in
effect,do the following at its sole cost and expense, in furtherance of the negotiation process:
7.1 Meetings. AECOM/Fransen shall meet at least two (2) times per month with
the City's staff and representatives to review and understand the planning and design criteria
applicable to Theater Square,and in drafting the Approved Strategic Plan.
7.2 Reports. AECOM/Fransen shall make oral and written progress reports to the
City and/or its staff as the City Manager may reasonably request not more than twice per calendar
month.
7.3 Rights of Entrv. Before entering upon any property within Theater Square,
whether for site assessment or other due diligence, AECOM/Fransen shall first obtain a right of entry
from the City(in a form reasonably acceptable to the City) or the applicable property owner, and any
tenant. AECOM/Fransen may ask the City to use its best efforts to help AECOM/Fransen obtain a
right of entry upon private property.
7.4 Environmental Resorts/Studies. AECOM/Fransen shall promptly provide the
City with copies of any environmental reports and any other studies of the physical condition of
Theater Square, if any, that AECOM/Fransen causes to be prepared, or otherwise obtains with
respect to Theater Square or the Project (which shall be deemed to be "Reports" in accordance with
Section 5.1 above).
8. Term. The term of this Agreement will expire on the third (3rd) anniversary of the
City's approval of the Approved Strategic Plan. In addition, AECOM/Fransen shall have the right to
terminate this Agreement upon sixty (60) days' written notice if the City fails to pay AECOM/
Fransen within thirty (30) days following written notice any amounts then due to AECOM/Fransen
hereunder. Either party may terminate this Agreement if the City rejects more than three (3)
proposed disposition transactions presented by AECOM/Fransen or if AECOM/Fransen proposes but
the City rejects a revised Strategic Plan proposing changes to the Approved Strategic Plan intended
by AECOM/Fransen to account for weakened or otherwise changed market conditions that have
occurred after the City's approval of the Approved Strategic Plan. AECOM/Fransen shall have the
right to terminate this Agreement upon thirty (30) days' written notice to the City but in so doing,
and notwithstanding anything herein to the contrary, waives all rights hereunder, including without
limitation, all claims for a Finder's Fee or Development Fee not earned hereunder prior to delivery of
such notice. Upon expiration of the term or earlier termination of this Agreement in accordance with
the provisions hereof, this Agreement shall automatically cease to be of any force and effect and the
City shall have no obligations to AECOM/Fransen in connection with this Agreement with respect to
the subject matter hereof or as to any instruments delivered to the City, except that AECOM/Fransen
shall be entitled to receive a Finder's Fee with respect to any closed transaction for the sale of the
Regal Cinemas and/or a Development Fee with respect to any closed transaction for sale or lease of
an interest in the Development Properties, in either such case entered into by the City prior to the
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And The Fransen Company
410 Campus Drive, Suite 200
Newport Beach, California 92660
Attention: Mr. John Fransen
With a copy to: Liner LLP
1100 Glendon Avenue, Suite 1400
Los Angeles, California 90024
Attention: Michael J. Kiely, Esq.
And Crosbie Gliner Schiffinan Southard& Swanson,LLP
12750 High Bluff Drive, Suite 250
San Diego, California 92130
Attention: Craig Swanson,Esq. and Dana Schiffman,Esq.
Any such notice shall be deemed received upon delivery, if delivered personally, by
facsimile, or by e-mail, one day after delivery to the courier if delivered by courier, and three days
after deposit into the United States Mail if delivered by registered or certified mail.
13. Agreement Limitations. The City is not, by entering into this Agreement, committing
itself to or agreeing to undertake: (a) land acquisition, (b) land disposition to AECOM/Fransen,
(c) land use approvals, or(d)any other act or activities requiring the subsequent independent exercise
of discretion by the City or any agency or department thereof. This Agreement does not constitute an
agreement by the City to exercise control over property within Theater Square. This Agreement is
merely an agreement to review Reports according to the terms hereof, with all final discretion and
approval to be exercised exclusively by the City's Common Council as to any Approved Strategic
Plan, and all proceedings and decisions in connection therewith.
14. Miscellaneous provisions.
14.1 Governing Law and Venue. California law governs this Agreement and its
provisions will be construed according to California laws. Venue for filing any action to enforce or
interpret this Agreement will be San Bernardino,California.
14.2 Headings. The section headings in this Agreement are for convenience only
and do not explain, modify, or add to the meaning of this Agreement.
14.3 Severability. The provisions of this Agreement are severable. The invalidity
or unenforceability of any provision in this Agreement will not affect the other provisions.
14.4 City Manager to Act for City. Except to the extent otherwise required under
the City Charter, City ordinances or applicable statutes or as otherwise set forth in this Agreement,
the City Manager or a City employee designated by the City Manager may act on behalf of the City
for the purposes of this Agreement.
14.5 Joint and Several Liability. Each of AECOM and Fransen shall be jointly and
severally liable and responsible for performance by AECOM/Fransen under this Agreement.
14.6 Limitation on Liability. Except to the extent required to fulfill a defense,
indemnity and hold harmless obligation as set forth in Section 6, or as may be described in the
16214.001-3044102v11 9
2016-174
Strategic Plan, neither AECOM/Fransen nor the City will be liable to the other for any punitive,
indirect, special or consequential damages hereunder.
14.7 Relationship of AECOM/Fransen and City. AECOM/Fransen and each of
AECOM Parent and Fransen, are independent contractors and are not agents of the City.
AECOIVI/Fransen, AECOM Parent and Fransen are not partners of or joint-venturers with the City.
14.8 Interpretation. This Agreement is the result of the combined efforts of the
Parties. Should any provision be found ambiguous,the ambiguity will not be resolved by construing
this Agreement in favor or against any Party, but by construing the terms according to their generally
accepted meaning.
14.9 Precedence of Documents. If the body of this Agreement and any Exhibit or
Attachment conflict, the terms in the body of this Agreement will control. Any term or condition in
any Exhibit or Attachment that purports to modify the allocation of risk between the Parties is void.
14.10 Successors and Assigns. Subject to the limitation on assignment, this
Agreement is binding upon, and will inure to the benefit of all Parties, and their respective successors
and assigns.
14.11 Counterparts. The Parties may sign this Agreement in counterparts, each of
which when signed and delivered will be deemed an original, and all of which together will
constitute one instrument.
16214.001-3044102v11 10
2016-174
IN WITNESS WHEREOF, the Parties have executed and acknowledged this Agreement on
the dates and in the year set forth below.
THE CITY OF SAN BERNARDINO,
a California charter city
By:
Name: Mark Scott
Title: City Manager
Dated:
APPROVED AS TO FORM
GARY D. SAENZ,
City of San Bernardino
City Attorney
B .
Name �ale,np,Crier
e; City Attorney
16214.001-3044102v 11 S-1
2016-174
AECOM/FRANSEN:
AECOM TECHNICAL SERVICES, INC.,
a California co tion
By:
Name: t7
Title:
Dated: / , 2016
THE FRANSEN COMPANY, INC.,
a California corporation
By:
Name: Jo n Fransen
Title: President
Dated: 2016
16214.001-3044102v I 1 S-2
2016-174
EXHIBIT"A"
MAP OF THEATER SQUARE
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THEATRE SQUARE DEVELOPMENT SERVICES AGREEMENT August 2016
16214.001-3044102v11 A-1
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EXHIBIT `B"
DIAGRAM OF THE FORMER THEATER SPACE
[to come]
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