HomeMy WebLinkAbout2017-2281
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RESOLUTION NO. 2017-228
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING THE FIRST AMENDMENT TO THE
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (ARDEN GUTHRIE) WITH
MARK DEVELOPMENT, INC., AND APPROVING CERTAIN RELATED ACTIONS
WHEREAS, pursuant to Health and Safety Code (the "HSC") § 34172 (a) (1), the
I Redevelopment Agency of the City of San Bernardino was dissolved on February 1, 2012; and
WHEREAS, consistent with the provisions of the HSC, on January 9, 2012 the Mayor
and City Council of the City of San Bernardino elected to serve in the capacity of the Successor
Agency to the Redevelopment Agency of the City of San Bernardino (the "Successor Agency");
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WHEREAS, per Resolution No. 2017-081, effective May 1, 2017, the City and
Developer entered into the Exclusive Right to Negotiate Agreement (Arden Guthrie) (the
"Agreement") with respect certain real property located in the North Arden Guthrie Area of the
City of San Bernardino and comprising approximately 17.43 acres, generally bounded by
Highland Avenue, Arden Avenue, 20th Street and Guthrie Avenue, as more particularly described
within the Agreement (the "Property"); and
WHEREAS, the Successor Agency is the current owner of the Property; and
WHEREAS, the City is currently seeking to acquire from or otherwise arrange with the
Successor Agency for disposition and development of the Property consistent with the City's
Contract with respect to the Property with the United States Department of Housing and Urban
Housing Development regarding the Property (the "HUD Contract"); and
WHEREAS, the Property is vacant with all building structures and infrastructure having
been previously demolished; and
WHEREAS, the Developer and City contemplate a commercial development with such
uses as may be agreed upon by the Developer and City (the "Project"); and
WHEREAS, the Developer proposes acquiring the property for fair market value and
developing the Project pursuant to a Disposition and Development Agreement (the "DDA")
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I which will include compliance with the HUD Contract, a copy of which has been provided to the
1 Developer; and
WHEREAS, in connection with the preparation of the DDA and prior to consideration of
the approval of such DDA, the City will prepare and circulate, or cause the preparation and
I circulation of an initial study (the "Initial Study") in accordance with the California
I Environmental Quality Act of 1970, as amended (the "CEQA") and pursuant to the HUD
Contract, comply with the applicable provisions of the National Environmental Policy Act (the
81 1 "NEPA"); and
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WHEREAS, based upon information famished by the Developer to the City together
I with further investigations conducted by the City, the Developer is qualified to assist the City in
undertaking the economically sustainable commercial development on the Property, consistent
with the HUD Contract, which will include the planning for and development of a specific study,
evaluation and planning by the Developer and City of appropriate and feasible development
alternatives; and
WHEREAS, the Developer has met those of its obligations under the Agreement, the
performance of which was required to occur prior to the approval of the First Amendment to
Exclusive Right to Negotiate Agreement (Arden Guthrie), with respect to submitting to the City:
i) a feasibility study identifying potential uses on the Property (by June 1, 2017); and ii) a
Preliminary Development Concept Package (by August 1, 2017) (collectively, the "Developer
Reports"); and
WHEREAS, the City has provided the Developer comments regarding the Developer
Reports that will necessitate the Developer to conduct further actions and to submit one or more
Revised Preliminary Development Concept Packages; and
WHEREAS, for the purpose of responding to the City's comments with respect to the
Developer Reports, on November 1, 2017, the Developer submitted a letter requesting an
amendment to the Agreement to provide the Developer additional time to prepare one or more
Revised Preliminary Development Concept Packages and to meet certain other obligations that
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are required of the Developer subsequent to the City's approval of the Revised Preliminary
Development Concept Packages; and
WHEREAS, approval of this resolution will approve the First Amendment to Exclusive
Right to Negotiate Agreement (Arden Guthrie) with Mark Development, Inc., a copy which is
attached hereto as Exhibit "A"; and
WHEREAS, this Resolution has been reviewed with respect to applicability of the
California Environmental Quality Act (the "CEQA"), the State CEQA Guidelines (California Code
of Regulations, Title 14, § 15000 et seq., hereafter the "CEQA Guidelines"), and the City's
environmental guidelines; and
WHEREAS, this Resolution does not constitute a "project" for purposes of CEQA, as that
term is defined by CEQA Guidelines § 15378, because this Resolution constitutes general policy
and procedure making and organizational or administrative activity that will not result in a direct or
indirect physical change in the environment, per § 15378 (b) (2) and (5) of the CEQA Guidelines;
and
WHEREAS, all of the prerequisites with respect to the approval of this Resolution have
I been met.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
Section 1. The foregoing recitals are true and correct and are a substantive part of this li
Resolution.
Section 2. The First Amendment to Exclusive Right to Negotiate Agreement (Arden
Guthrie), attached hereto as Exhibit "A", is approved.
Section 3. The City Manager, or designee, is authorized and directed to execute the First
Amendment to Exclusive Right to Negotiate Agreement (Arden Guthrie), and to take such other
actions and execute such other documents as are necessary to fulfill the intent of this Resolution.
Section 4. This Resolution is not a "project" for purposes of CEQA, as that term is
defined by Guidelines § 15378, because this Resolution is an organizational or administrative
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activity that will not result in a direct or indirect physical change in the environment, per § 15378
(b) (5) of the Guidelines.
Section 5. This resolution shall take effect upon its adoption and execution in the
manner as required by the City's Municipal Code.
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING THE FIRST AMENDMENT TO THE EXCLUSIVE RIGHT
TO NEGOTIATE AGREEMENT (ARDEN GUTHRIE) WITH MARK DEVELOPMENT,
INC., AND APPROVING CERTAIN RELATED ACTIONS
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 15th day
of November 2017, by the following vote, to wit:
Council Members: AYES NAYS
MARQUEZ X
BARRIOS X
VALDIVIA X(S)
SHORETT X
NICKEL X
RICHARD X
MULVIHILL X(M)
ABSTAIN ABSENT
George anna, CM , ity Clerk
The foregoing Resolution is hereby approved this 15th day of November 2017.
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C ti
Approved as to form:
Gary D. Saenz, City Attorney
By:
R. Carey Davy, Mayor
City of San j9emardino
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EXHIBIT "A" !
FIRST AMENDMENT TO
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (ARDEN GUTHRIE)
WITH
MARK DEVELOPMENT, INC.
(See Attachment)
FIRST AMENDMENT TO
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
(ARDEN GUTHRIE)
This FIRST AMENDMENT TO EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
(ARDEN GUTHRIE) (the "First Amendment") is made as of the 15th day of November 2017, by and
between the City of San Bernardino, a California charter city (the "City"), and Mark Development, Inc., a
California corporation ("Developer"). Collectively, the City and Developer are referred to herein as the
"Parties" and individually the Parties may be referred to as a "Party".
RECITALS
WHEREAS, effective May 1, 2017, the City and Developer entered into the Exclusive Right to
Negotiate Agreement (Arden Guthrie) (the "Agreement") with respect certain real property located in the
North Arden Guthrie Area of the City of San Bernardino and comprising approximately 17.43 acres,
generally bounded by Highland Avenue, Arden Avenue, 201h Street and Guthrie Avenue, as more
particularly described within the Agreement (the "Property"); and
WHEREAS, the Successor Agency to the City of San Bernardino Redevelopment Agency (the
"Successor Agency") is the current owner of the Property; and
WHEREAS, the City is currently seeking to acquire from or otherwise arrange with the Successor
Agency for disposition and development of the Property consistent with the City's Contract with respect to
the Property with the United States Department of Housing and Urban Housing Development regarding the
Property (the "HUD Contract"); and
WHEREAS, the Property is vacant with all building structures and infrastructure having been
previously demolished; and
WHEREAS, the Developer and City contemplate a commercial development with such uses as
may be agreed upon by the Developer and City (the "Project"); and
WHEREAS, the Developer proposes acquiring the property for fair market value and developing
the Project pursuant to a Disposition and Development Agreement (the "DDA") which will include
compliance with the HUD Contract, a copy of which has been provided to the Developer; and
WHEREAS, in connection with the preparation of the DDA and prior to consideration of the
approval of such DDA, the City will prepare and circulate, or cause the preparation and circulation of an
initial study (the "Initial Study") in accordance with the California Environmental Quality Act of 1970, as
amended (the "CEQA") and pursuant to the HUD Contract, comply with the applicable provisions of the
National Environmental Policy Act (the "NEPA"); and
WHEREAS, based upon information furnished by the Developer to the City together with further
investigations conducted by the City, the Developer is qualified to assist the City in undertaking the
economically sustainable commercial development on the Property, consistent with the HUD Contract,
which will include the planning for and development of a specific study, evaluation and planning by the
Developer and City of appropriate and feasible development alternatives; and
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WHEREAS, the Developer has met those of its obligations under the Agreement, the performance
of which was required to occur prior to the approval of this First Amendment, with respect to submitting to
the City: i) a feasibility study identifying potential uses on the Property (by June 1, 2017); and ii) a
Preliminary Development Concept Package (by August 1, 2017) (collectively, the "Developer Reports");
and
WHEREAS, the City has provided the Developer comments regarding the Developer Reports that
will necessitate the Developer to conduct further actions and to submit one or more Revised Preliminary
Development Concept Packages; and
WHEREAS, therefore, an amendment to the Agreement is warranted to provide the Developer
additional time to prepare one or more Revised Preliminary Development Concept Packages and to meet
certain other obligations that are required of the Developer subsequent to the City's approval of the Revised
Preliminary Development Concept Packages; and
WHEREAS, it now becomes necessary to amend said Agreement and the Parties are desirous of
such amendment.
NOW, THEREFORE, in consideration of the mutual undertakings herein, the Parties amend the
Agreement as follows:
1. Paragraph a. of Section 1, The Negotiation Period and the Term of Agreement; Prior Non -Refundable
Deposit, is amended in its entirety as follows:
a. "The rights and duties of the parties established by this Agreement shall commence as of May 1,
2017 (the "Effective Date"). This Agreement will continue in effect until November 30, 2018, at which
time this Agreement shall automatically terminate unless earlier terminated or extended pursuant to
Section 4.a., or otherwise extended by the Parties. The time period during which this Agreement shall
be in effect (including any extensions of time approved by the City) is referred to as the "Negotiation
Period."
2. Section 4, Exclusive Agreement to Negotiate, is amended in its entirety, as follows:
a "Required Actions.
(1) On or before June 1, 2017, the Developer shall submit a feasibility study
identifying potential uses on the Property including, without limitation, retail, hospitality and/or mixed uses
(as noted within the above Recitals, the Developer has met the obligations described in Section 4 a. (1).
(2) On or before August 1, 2017, Developer shall submit to the City a
"Preliminary Development Concept Package," consisting of the following:
(a) A development proposal generally describing the anticipated use:
(i) if retail, a list of prospective tenants;
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potential hotels and brands.
(ii) if hospitality or mixed use, a list of prospective tenants and
(b) Identification of the architect proposed to be used by the Developer;
(c) Proposed site plan;
(d) A statement describing the proposed method of financing, including
construction and permanent financing and identity of the person(s) or companies providing debt financing
or equity.
(e) A list of financial references;
(f) A comprehensive construction and operating pro forma which
identifies all sources and uses of funds for the construction and operation of the Project;
(g) A schedule of performance.
(h) As noted within the above Recitals, the Developer has met the
obligations described in Section 4 a. (2).
(3) Based on comments received from the City, on or before February 15, 2018,
Developer shall submit to the City a Revised Preliminary Development Concept Package.
(4) On or before March 15, 2018, the City shall either: i) approve; ii)
disapprove; or iii) provide further comments to the Developer with respect to the Revised Preliminary
Development Concept Package.
(5) If the City approves the Revised Preliminary Development Concept
Package, then no later than the sooner occurrence of June 30, 2018, or ninety (90) days from the date that the
Developer has received written notice that the City has approved the Revised Preliminary Development
Package, Developer shall submit to the City a "Final Development Concept Package," consisting of the
following:
(a) Updated information, current as of the date of submittal of the Final
Development Concept Package, as to each item set forth under subsection 2 of this Section 4 and addressing
such other and additional matters as may arise during negotiations;
(i) if retail, specific tenants, including letters of interest;
(ii) if hospitality and mixed use, a list of specific tenants and
specific brands, including written commitments from each.
(b) Proposed final identification of sources of financing, with a
description of the terms and conditions of such financing;
(c) A schedule of performance.
(6) If the City disapproves the Revised Preliminary Development Concept
Package, then the Agreement shall terminate.
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(7) If the City provides the Developer with further comments on the Revised
Preliminary Development Concept Package, then within sixty (60) days of receipt of the City's comments,
the Developer shall provide the City with further revisions to the Revised Preliminary Development
Concept Package.
(8) The City shall have thirty (30) days from receiptof the revisions to the
Revised Preliminary Development Concept Package to review and consider the revisions to the Revised
Preliminary Development Concept Package.
(9) If the City disapproves the revisions to the Revised Preliminary
Development Concept Package, then the Agreement shall terminate.
(10) If the City approves the revisions to the Revised Preliminary Development
Concept Package, then no later than ninety (90) days from the date that the Developer has received written
notice that the City has approved the revisions to the Revised Preliminary Development Package, Developer
shall submit to the City a "Final Development Concept Package," consisting of the information described in
Section 4 a. (5) above.
(11) The City shall have thirty (30) days from its receipt to review and comment
on the Final Development Concept Package.
(12) If the City provides the Developer with comments with respect to the Final
Development Concept Package that requires amendment to the Final Development Concept Package, then
the Agreement shall be extended for a period of time that the Parties agree is commercially reasonable given
the nature of the City's comments. In no event shall an extension to this Agreement for this purpose exceed
ninety (90) days from the date that the City provides the Developer its written comments with respect to the
Final Development Concept Package.
(13) If the City approves the Final Development Concept Package, then the
Negotiation Period shall be extended for a period of one -hundred twenty (120) days from the date that the
City has provided the Developer written notice that it has approved the Final Development Concept Package
(the "Outside Date") during which the Parties shall negotiate a DDA and establish fair market value of the
Property.
(14) The Developer shall bear all cost for its performance under this Agreement.
(15) During the term of this Agreement, the City will negotiate exclusively with
Developer, except as to potential users, concerning disposition, use, and development of the Property. If a
DDA is approved by the Parties, it shall supersede this Negotiation Agreement.
(a) Agreement to Negotiate. The City (by and through its staff and
consultants) and Developer agree that for the term of the Negotiation Period (whether said period expires or
is earlier terminated by the provisions herein) each Party shall negotiate diligently and in good faith to carry
out its obligations under this Agreement. The Developer acknowledges that the Successor Agency holds
title to the Property. The Developer expressly agrees and acknowledges that its rights pursuant to this
Agreement are subject to and based upon: i) City's ability to lawfully acquire the Property form the
Successor Agency, and ii) compliance by the Developer with this Agreement, including without limitation
the making of all submittals required pursuant to this Agreement, in conformity with this Agreement.
ME
(b) Sul2plemental Progress Reports. In addition to the information
required in this Section 4, for so long as this Agreement remains in effect Developer agrees to make weekly
oral progress reports and monthly written reports, which may be submitted via e-mail, to the City Manager,
or her designee, advising the City with respect to Developer's progress under this Agreement."
Except as expressly amended by this First Amendment, all other provisions of the Agreement shall
remain the same.
NOW THEREFORE, the Parties have executed this First Amendment as of the date and year first
set forth above.
CITY:
APPROVED AS TO FORM:
By:
,a . Saenz, City Attorney
CITY OF SAN BERNARDINO, a California charter city
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By:
Andrea M. Miller, City Manager
ATTEST:
Georgeann na, CMC, 6ty Clerk
DEVELOPER:
MARK DEVELOPMENT, INC., a Coyfornia corporation
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Sandoval
