HomeMy WebLinkAbout2018-2511
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RESOLUTION NO. 2018-251
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING AN EXCLUSIVE RIGHT TO NEGOTIATE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ICO REAL ESTATE
GROUP, INC. FOR THE 5TH STREET GATEWAY PROPERTY, AND AUTHORIZING
CERTAIN RELATED ACTIONS
WHEREAS, pursuant to Health and Safety Code (the "HSC") § 34172 (a) (1), the
Redevelopment Agency of the City of San Bernardino was dissolved on February 1, 2012; and
WHEREAS, consistent with the provisions of the HSC, the Mayor and City Council of the
I City of San Bernardino previously elected to serve in the capacity of the Successor Agency to the
Redevelopment Agency of the City of San Bernardino (the "Successor Agency"); and
WHEREAS, the Oversight Board to the Successor Agency (the "Oversight Board") was
established pursuant to HSC § 34179 to assist in the wind -down of the dissolved redevelopment
agency; and
WHEREAS, on December 22, 2015, the Successor Agency received its Finding of
I Completion (the "FOC") from the California Department of Finance (the "DOF") pursuant to HSC
§ 34179.7; and
WHEREAS, after receiving an FOC, HSC § 34191.5 required the Successor Agency to
prepare a Long -Range Property Management Plan (the "LRPMP") to address the disposition and
use of the real property assets held by the Successor Agency; and
WHEREAS, pursuant to HSC § 34191.5 (c), the Successor Agency prepared and filed with
the DOF its Oversight Board -approved Long -Range Property Management Plan; and
WHEREAS, in its December 31, 2015 letter, the DOF formally approved the
Agency's LRPMP and notified the Successor Agency that pursuant to HSC § 34191.3, the approved
LRPMP shall govern, and supersede all other provisions relating to, the disposition and use of all
the real property assets of the former redevelopment agency; and
WHEREAS, the LRPMP includes 230 parcels of land grouped into forty-six (46) separate
I sites, seven (7) of which are designated for future development use by the City; and
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RESOLUTION NO. 2018-251
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SA
BERNARDINO, CALIFORNIA, APPROVING AN EXCLUSIVE RIGHT TO NEGOTIAT
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ICO REAL ESTAT
GROUP, INC. FOR THE 5T11 STREET GATEWAY PROPERTY, AND AUTHORIZIN
CERTAIN RELATED ACTIONS
WHEREAS, in its letter dated May 17, 2016, the DOF directed the Successor Agency to
transfer all of its LRPMP-designated future development use sites to the City; and
WHEREAS, on August 1, 2016, the City Council approved its Resolution No. 2016-165,
which authorized the City to accept title to the seven (7) future development -designated real
property sites specified within the LRPMP, subject to the City implementing the provisions of the
LRPMP with respect to such properties; and
WHEREAS, on August 16, 2016, the Successor Agency transferred the seven (7) future
I development -designated real property sites specified within the LRPMP to the City at no cost viE
quitclaim deed; and
WHEREAS, one of the seven (7) future development -designated real property sites,
1 comprising approximately 6.56 acres, which is commonly referred to as the "5a' Street
Property", is generally located along 5`h Street between "H" and "F" Streets (APNs 0134-053-20-23,
25 & 26; 0134-054-07-09 and 24-26; 0134-061-21, 22, 25 & 30; 0134-093-05-09; 0134-101-02-06
& 28) and is depicted on the "Property Map" attached hereto as Exhibit "A" (the "Property"); and
WHEREAS, pursuant to its responsibility to implement the LRPMP on behalf of
Successor Agency for the seven (7) future development -designated real property sites specified
within the LRPMP, on December 6, 2017, the City issued an Invitation for Letters of Interest (the
"Invitation") seeking letters of interest including detailed proposals from developers concerning the
development of the Property; and
WHEREAS, subsequently, the City received eight (8) proposals by the January 31, 2018
I submittal deadline, including a proposal submitted by ICO Real Estate Group, Inc. (the "ICO"
"Developer"); and
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RESOLUTION NO. 2018-251
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING AN EXCLUSIVE RIGHT TO NEGOTIATE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ICO REAL ESTATE
GROUP, INC. FOR THE 5TH STREET GATEWAY PROPERTY, AND AUTHORIZING
CERTAIN RELATED ACTIONS
WHEREAS, at the conclusion of a thorough review process, City staff determined
ICO's submittal was the most responsive to the Invitation, whereupon City staff recommended
the City engage the Developer in continued negotiations pursuant to an exclusive right to nego
(the "ERN") agreement with the intention that such continued negotiations will include
negotiation of a disposition and development agreement for the Property; and
WHEREAS, during the closed session portion of the Mayor and City Council meeting
May 16, 2018, authorization was given to negotiate an ERN Agreement with Developer for
Property; and
WHEREAS, staff has now completed negotiations with the Developer for the ERN
Agreement and recommends the adoption of this Resolution, which will approve the ERN
Agreement with the Developer for the Property, a copy of which is included as Exhibit `B" to this
Resolution, and authorize certain related actions; 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 is an organizational or
administrative activity that will not result in a direct or indirect physical change in the environment,
per § 15378 (b) (5) of the CEQA Guidelines; and
WHEREAS, all of the prerequisites with respect to the approval of this Resolution have
been met.
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RESOLUTION NO. 2018-251
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING AN EXCLUSIVE RIGHT TO NEGOTIATE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ICO REAL ESTATE
GROUP, INC. FOR THE 5TH STREET GATEWAY PROPERTY, AND AUTHORIZING
CERTAIN RELATED ACTIONS
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
Resolution.
Section 2. The ERN Agreement with ICO Real Estate Group, Inc. with respect to the
Property, attached hereto as Exhibit `B", is approved.
Section 3. The City Manager, or designee, is authorized and directed to execute the
ERN Agreement, in the form of which is attached to this Resolution, and to
take such other actions and execute such other documents as are necessary to
effectuate the ERN Agreement and as may otherwise be required 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 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 NO. 2018-251
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING AN EXCLUSIVE RIGHT TO NEGOTIATE
AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ICO REAL ESTATE
GROUP, INC. FOR THE 5TH STREET GATEWAY PROPERTY, AND AUTHORIZING
CERTAIN RELATED ACTIONS
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 19`h
of September 2018, by the following vote, to wit:
Couneil Members: AYES NAYS
MARQUEZ
BARRIOS
VALDIVIA
SHORETT
NICKEL
RICHARD x
MULVIHILL
ABSTAIN ABSENT
Georg Hanna, CNk, City Clerk
The foregoing Resolution is hereby approved this 19a' day of September 201
Approved as to form:
Gary D. Saenz, City Attorney
By: ,cG�t L
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R. Carey Davi, Mayor
City of San RL-rnardino
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CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
DATE: September 27, 2018
TO: Kathy Brann
Economic and Housing Development
FROM: Candice Alvarez, CMC, Deputy City Clerk
RE: Transmitting Documents for Signature — Exclusive Right to Negotiate Agreement
with ICO Real Estate Group, Inc.
At the Mayor and City Council meeting of September 19, 2018 the City Council adopted
Resolution No. 2018-251 approving an Exclusive Right to Negotiate Agreement between the
City of San Bernardino and ICO Real Estate Group, Inc. for the 5a' Street Gateway Property, and
authorizing certain related actions.
Attached are three (3) ORIGINAL agreements to be executed. Please obtain signatures in the
appropriate locations and return ONE ORIGINAL to Candice Alvarez in the Cite Clerk's
Ofice as soon as possible. Please also retain a copy of the fully executed document for your
records and forward the remaining copy to the appropriate party.
EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
BETWEEN THE
CITY OF SAN BERNARDINO
AND
ICO REAL ESTATE GROUP, INC.
This EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (the "Agreement") is dated as
of September 5, 2018 (the "Effective Date") and is entered into by and between the CITY OF
SAN BERNARDINO, a municipal corporation and charter city (the "City"), and ICO REAL ESTATE
GROUP, INC., a California corporation ("Developer"). Each of City and Developer is sometimes
individually referred to as a "Party," and they are collectively referred to as "Parties".
RECITALS
A. The City is the current owner of certain vacant real property located within the area
commonly referred to as the 5'h Street Gateway Project (the "Project") within the City of San
Bernardino and comprising 27 parcels of land equaling approximately 6.56 acres, generally located
along 5h Street between "H" and "F" Streets (APNs 0134-053-20 to -23,-25, and -26; 0134-054-07 to
-09, 24, -25, and -26; 0134-061-21, -22,-25, and -30; 0134-093-05 to -09; 0134-101-02 to -06, and -
28) that is depicted on the "Property Map" attached hereto as Exhibit "A" and is Iegally described on
Exhibit "B" attached hereto (the "Property"); and
B. On December 6, 2017, the City issued an Invitation for Letters of Interest (the
"Invitation') seeking letters of interest including detailed proposals from developers concerning the
development of the Property; and
C. The City received eight (8) proposals by the January 31, 2018 submittal deadline,
including a proposal made by the Developer (the "ICO Submittal"); and
D. At the conclusion of a thorough review process, City staff determined that the ICO
Submittal was the most responsive to the Invitation, whereupon City staff recommended that City
engage Developer in continued negotiations under this Agreement with the intention that such
continued negotiations will include the negotiation of a disposition and development agreement (the
"DDA") for the Property for the Project. The DDA, which will be prepared by City, will require that
a fair value price be paid for the Property and will contain provisions customarily included in
agreements by the City concerning the disposition and development of property (such as the provision
of offsite improvements to the extent reasonably associated with the proposed development) and, in
this case, will include at a minimum those features of the ICO Submittal which resulted in City staff
making a favorable recommendation in connection with the selection of the Developer as the entity
with which the City would participate in negotiations as to the Property, and
E. Based upon information furnished by the Developer to the City, the Developer is
qualified to assist the City in undertaking the economically sustainable development of the Property,
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 for the Project and the
delineation of appropriate uses, users (specifically or by category), and particular features to be
included in the development of the Property.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE CITY HEREBY AGREE, AS
FOLLOWS:
The Negotiation Period and the Term- of Agreement; Non -Refundable Deposit.
a. The rights and duties of the parties established by this Agreement shall
commence on the date that the parties each execute this Agreement (the "Effective Date"). This
Agreement will continue in effect until 4:00 p.m. of [September 4, 2019] (the "Scheduled
Termination Date"), at which time this Agreement shall automatically terminate unless earlier
terminated, extended pursuant to Section 4.a.(5), or mutually extended by the express written
agreement of the Parties. The time period during which this Agreement shall be in effect (including
any extensions of time expressly approved in writing by the City) is referred to as the "Negotiation
Period."
b. If the Parties enter into a DDA, the DDA shall automatically supersede this
Agreement and, notwithstanding any provision of this Agreement to contrary effect, this Agreement
shall be terminated immediately.
2. Developer Acknowledgments.
a. The Developer hereby acknowledges and agrees that no provision of this
Agreement shall be deemed to be an offer by the City or an acceptance by the City of any offer or
proposal from the Developer to convey any interest in the Property to the Developer. Any studies
relating to the Property that may hereafter be undertaken by the Developer, in its sole discretion,
shall be the sole responsibility of the Developer and shall not be deemed to be undertaken for the
benefit of the City.
b. The qualifications and identity of the Developer are of particular concern to
the City. The City has relied on these qualifications and identity in entering into this Agreement with
the Developer. During the term of this Agreement, no voluntary or involuntary successor -in -interest
of the Developer shall acquire any right or power under this Agreement. The Developer shall not
assign all or any part of this Agreement or any rights hereunder, without the prior written approval of
the City Manager, which approval may be granted withheld, conditioned, or refused in the sole and
absolute discretion of the City Manager. Reference herein to the "City Manager" shall refer to the
City Manager of the City or the City Manager's designee; excepting that any extensions made under
the authority of the City Manager may only be executed by the City Manager. Notwithstanding the
foregoing, the City shall reasonably consider the assignment by Developer of its rights under this
Agreement to an entity, which controls, is controlled by or is under common control with the
Developer or its principals, members or affiliates, and which entity agrees to perform as Developer
under this Agreement.
C. The Developer shall promptly notify the City in writing of any and all
changes whatsoever to the identity of the business entities and individuals in control of the
Developer, as well as any and all material changes in the interest or the degree of control of the
Developer by any such party, of which information the Developer or any of its partners or officers
have been notified or may otherwise have knowledge or information. Upon the occurrence of any
material change in interest or control, whether voluntary or involuntary, in membership, ownership,
management or control of the Developer (other than such changes occasioned by the death or
icicapacity of any individual) unless approved in writing, in advance, by the City Manager, the City
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may terminate this Agreement by serving written notice of such termination on the Developer
referencing this Section.
3. Deposit. On or before the Effective Date the Developer shall deposit with the City
the all cash sum of Fifty Thousand Dollars ($50,000) ("Deposit") which amount shall be applied by
the City for use by the City to cover the third parry costs it incurs in connection with the
implementation of this Agreement, including but not limited to the conduct of planning and
environmental studies, the use of land economists to analyze proposals, the use of appraisers, the cost
of preliminary title reports (if applicable), and the engagement of attorneys to prepare a DDA and
such other documents as the City Manager shall deem to be necessary or convenient in connection
with this Agreement.
The Deposit shall not be applied to the purchase of the Property.
4. Exclusive Agreement to Negotiate.
a "Required Actions.
(1) No later than December 3, 2018, Developer shall submit to the City a
"Preliminary Development Concept Package"; the Preliminary Development Concept shall include
all of the features and amenities included in the ICO Submittal, and shall further include the
following:
(a) A development proposal generally describing the anticipated
uses, with estimated levels of intensity and categories of tenants;
(i) a list of prospective tenants, including retail and
restaurant uses, if applicable;
(ii) If mixed uses are proposed, a detailed delineation of
the character and intensity of all such uses shall be included (including, in the case of residential, the
proposed number of units, density, affordability levels, product types, anticipated pricing, and
whether units are to be rental, for -sale units, or both);
Developer;
(b) Identification of the architect proposed to be used by the
(c) A 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 proposed schedule of performance.
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(2) Within thirty (30) days of receipt of the materials referenced in (1)
above, or by January 2, 2019, whichever is sooner, City staff will provide comments. Within thirty
(30) days after the transmittal by City staff to Developer of comments or by January 31, 2019,
whichever is sooner, Developer shall submit to the City a Revised Preliminary Development Concept
Package which addresses in detail the comments made by City staff.
(3) Within thirty (30) days after receipt thereof or by February 4, 2019,
whichever is sooner, 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.
(4) If the City approves the Preliminary Development Concept Package
or Revised Preliminary Development Concept Package, then by the earlier to occur of (i) April 5,
2019 or (ii) the sixtieth (6091) day after the City notifies Developer that City has approved the
Preliminary Development Concept Package or Revised Preliminary Development Concept Package,
Developer shall submit to the City a "Final Development Concept Package," consisting of the
following (with all information to be more detailed than that previously submitted with the
Preliminary Development Concept Package or the Revised Preliminary Development Concept
Package):
(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) As to retail, specific tenants, including letters of
interest;
(ii) If residential is included, the proposed number of
units, density, affordability levels, product types, anticipated pricing, and whether units are to be
rental, for -sale units, or both.
(b) Proposed final identification of sources of financing, with a
description of the terms and conditions of such financing;
(c) A schedule of performance.
(5) Within thirty (30) days after receipt thereof, or by June 4, 2019,
whichever is sooner, the City shall either: i) approve; ii) disapprove; or iii) provide further comments
to the Developer with respect to the Final Development Concept Package.
(6) If the City disapproves the Final Development Concept Package, then
the Agreement shall terminate subject to the notice and cure provisions of Section 12 of this
Agreement.
(7) If the City provides the Developer with further comments on the Final
Development Concept Package, then by the earlier to occur of (i) June 4, 2019 or (ii) the sixtieth
(6091) day after the City provides comments to Developer, the Developer shall provide the City with
further revisions to the Final Development Concept Package.
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(8) The City shall have thirty (30) days from receipt of 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 Final Development
Concept Package, then the Agreement shall terminate subject to the notice and cure provisions of
Section 12 of this Agreement.
(10) The Developer shall bear all cost for its performance under this
Agreement.
(11) During the term of this Agreement, the City will negotiate exclusively
with Developer; provided that City may confer and consult with legal advisors, economists, planners,
representatives of prospective tenants and users, and contractors.
b. 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 expressly agrees and acknowledges
that its rights pursuant to this Agreement are subject to and based upon 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.
C. Supplemental Progress Reports. In addition to the information required in
Section 4 above, for so long as this Agreement remains in effect Developer agrees to make semi-
monthly oral progress reports and monthly written reports to the City Manager, or designee, advising
the City on all matters and all studies being made.
5. No Predetermination of Cft Discretion. The Parties agree and acknowledge that
nothing in this Agreement in any respect does or shall be construed to affect or prejudge the exercise
of the discretion of the City. The Developer acknowledges in this regard that the feasibility of the
Developer's proposal has not been finally determined, and further that, at the discretion of the City,
an environmental review will be prepared and circulated for comment by the City, in connection with
the consideration of the DDA. Further, nothing in this Agreement in any respect does or shall be
construed to affect or prejudge the City's discretion to consider, negotiate, or undertake the
acquisition and/or development of any portion of the Property, or shall affect the City's compliance
with the laws, rules, and regulations governing land uses, environmental review, or disposition of the
Property.
6. Environmental and Other Requirements. Certain state and local environmental
requirements (including, but without limitation, the California Environmental Quality Act of 1970,
Public Resources Code Section 21000, et seq.) may be applicable to the Project. Pursuant to such
requirements, certain environmental documents may be required to be prepared and certified for the
Project. The City, by this Agreement, undertakes no obligation to pay any costs associated with such
environmental documents or to supply data and information both to determine the impact of the
development on the environment and to assist in the preparation of any necessary environmental
documents. 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 ("CEQA" ). The Developer shall be responsible to defray the cost of the Initial Study as
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well as such other studies, reports, notices, or approvals as may be determined by City to be required
under CEQA and any other applicable environmental statutes.
7. Costs and Expenses. Except as otherwise provided in this Agreement with respect
to the disposition of the Deposit, each party shall be responsible for its own costs and expenses in
connection with any activities and negotiations undertaken in connection with the performance of its
obligations under this Agreement.
8. Non -Discrimination. Developer shall not discriminate against nor segregate, any
person, or group of persons on account of sex, race, color, marital status, religion, creed, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall the Developer establish or permit any such practice or practices of discrimination
or segregation in the selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the land.
9. Address for Notices. Any notices pursuant to this Agreement shall be in writing and
sent (i) by Federal Express (or other established express delivery service which maintains delivery
records), (ii) by hand delivery, (iii) by certified or registered mail, postage prepaid, return receipt
requested, or (iv) by email, if at least one other method is used, to the following addresses:
To City: CITY OF SAN BERNARDINO
290 North "D" Street, 3rd Floor
San Bernardino, CA 92401
Attention: Andrea Miller, City Manager
With Copy To: STRADLING YOCCA CARLSON & RAUTH
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Attention: Thomas P. Clark, Jr.
To Developer: ICO REAL ESTATE GROUP, INC.
Attention: Ran Torkan, Principal
4221 Wilshire Blvd., Ste. 240
Los Angeles, CA 90010
jtorkan@icoreg.com
10. Default. Failure by either party to perform one or more of its duties as provided in
this Agreement shall constitute an event of default under this Agreement. The non -defaulting party
shall give written notice of a default to the defaulting party, specifying the nature of the default and
the action required to cure the default.
11. Remedies for Breach of Agreement. In the event of an uncured default under this
Agreement, the sole remedy of the non -defaulting party shall be to terminate this Agreement.
Following such termination, neither party shall have any further rights, remedies or obligations under
this Agreement. Neither party shall have any liability to the other for monetary damages or specific
performance for the breach of this Agreement, or failure to reach agreement on a DDA, and each
party hereby waives and releases any such rights or claims it may otherwise have at law or at equity.
Furthermore, the Developer knowingly agrees that it shall have no right to specific performance for
conveyance of, nor to claim any right of title or interest in the Property or any portion thereof.
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12. Termination. This Agreement shall: (i) unless extended by the Parties,
automatically terminate as of the Scheduled Termination Date, and (ii) terminate in the event
Developer shall fail to perform any of its obligations hereunder to the reasonable satisfaction of the
City Manager; provided that prior to termination, the City shall provide the Developer with notice of
the failures and provide ten (10) days in which to cure. The City Manager shall have final authority
to determine whether a cure has been accomplished. In addition, the parties agree that if Developer
shall determine, in its sole discretion, that it is infeasible to proceed with the disposition and
development as contemplated hereunder, then Developer may, upon ten (10) days' written notice to
the other Party, terminate this Agreement. Upon termination of this Agreement, whether upon
expiration of the Negotiation Period or otherwise, both Parties knowingly agree that neither Party
shall have any further rights or remedies as to the other and the Developer shall have no rights in
respect to the Property, excepting only that the City shall remit to Developer such portion, if any, of
the Deposit, that as of such termination has not been expended and has not been obligated to be paid
to third parties.
13. Time of Essence. Time is of the essence of every portion of this Agreement in which
time is a material part. During the Negotiation Period the time periods set forth in this Agreement for
the performance obligations hereunder shall apply and commence upon a complete submittal of the
applicable information or occurrence of an applicable event. In no event shall an incomplete
submittal by the Developer trigger any of the City's obligations of review, approval and/or
performance hereunder, provided, however that the City shall notify the Developer of an incomplete
submittal as soon as is practicable and in no event later than the applicable time set forth for the
City's action on the particular item in question. Further, the time periods set forth herein are outside
dates of performance.
14. Real Estate Commissions. The City shall not be liable for any real estate
commission or brokerage fees which may arise with respect to this Agreement or the Property.
15. Developer Not an Agent. The Developer is not an agent of the City.
16. Press Releases. The Developer agrees to discuss any press releases with the City
Manager prior to disclosure in order to assure accuracy and consistency of the information. City
agrees to discuss any press releases with the Developer, or his designee, prior to disclosure in order
to assure accuracy and consistency of the information
17. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties, integrates all of the terms and conditions mentioned herein or incidental
hereto, and supersedes all negotiations or previous agreements between the parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
18. City Manager Authorized to Act on Behalf of City, Extensions of Time.
Excepting to the extent approval by the Mayor and City Council is required as a matter of law, the
City Manager is authorized to act on behalf of City with respect to this Agreement. The City
Manager may extend times set forth for performance under this Agreement for up to one hundred
eighty (180) days as aggregated; any other or additional extensions of time would require approval
by the Mayor and City Council.
19. Agreement Does Not Constitute Development Approyal. The City reserves final
discretion and approval as to any DDA and all proceedings and decisions in connection therewith.
This Agreement shall not be construed as a grant of development rights or land use entitlements to
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DOCSOC -#1897808-v3-ICO ENA.docx
19. Agreement Does Not Constitute Development Approval. The City reserves final
discretion and approval as to any DDA and all proceedings and decisions in connection therewith.
This Agreement shall not be construed as a grant of development rights or land use entitlements to
construct the Project or any other project. All design, architectural, and building plans for the Project
shall be subject to the review and approval of the City. By its execution of this Agreement, the City
is not committing itself to or agreeing to undertake the disposition of the Property or other real
property to the Developer, or any other acts or activities requiring the subsequent independent
exercise of discretion by the City and/or City, or any agency or department of the City.
20. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of California.
21. Implementation of Agreement. The City shall maintain authority to implement this
Agreement through the City Manager, or designee. The City Manager, or designee, shall have the
authority to issue interpretations, waive provisions, and/or enter into certain amendments of this
Agreement on behalf of the City so long as such actions do not materially or substantially change the
uses or concept of the Project, or add to the costs or risks incurred or to be incurred by the City as
specified herein, and such interpretations, waivers and/or amendments may include extensions of
time to perform. All other material and/or substantive interpretations, waivers, or amendments shall
require the collective consideration, action and written consent of the Mayor and City Council of the
City.
NOW THEREFORE, the Parties have executed this Negotiation Agreement as of the date
and year first set forth above.
CITY:
ATTEST-.
Georgeann I nna, City Cle
CITY OF SAN BERNARDINO, a California
Charter city
IlRKMR1Andrea M. Miller, City Manager
I�I���► ..
ICO REAL ESTATE GROUP, INC.,
a California corporation
Lo
Ran Torkan, Principal
8
2018-251 EDRERN ICO for 5th Street Gateway.Agreement.Exhibit B.docx
construct the Project or any other project. All design, architectural, and building plans for the Project
shall be subject to the review and approval of the City. By its execution of this Agreement, the City
is not committing itself to or agreeing to undertake the disposition of the Property or other real
property to the Developer, or any other acts or activities requiring the subsequent independent
exercise of discretion by the City and/or City, or any agency or department of the City.
20. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of California.
21. LWlementation of Agreement. The City shall maintain authority to implement this
Agreement through the City Manager, or designee. The City Manager, or designee, shall have the
authority to issue interpretations, waive provisions, and/or enter into certain amendments of this
Agreement on behalf of the City so long as such actions do not materially or substantially change the
uses or concept of the Project, or add to the costs or risks incurred or to be incurred by the City as
specified herein, and such interpretations, waivers and/or amendments may include extensions of
time to perform. All other material and/or substantive interpretations, waivers, or amendments shall
require the collective consideration, action and written consent of the Mayor and City Council of the
City.
NOW THEREFORE, the Parties have executed this Negotiation Agreement as of the date
and year first set forth above.
CITY:
ATTEST:
Georgeann Hanna, City Clerk
CITY OF SAN BERNARDINO, a California
Charter city
Andrea M. Miller, City Manager
ICO REAL EST A- P, INC.,
a Cal'i corpora on
By:
Ran Torkan, Principal
8
D0CS0C-#1897808-v3-IC0ENA.docx
EXHEBIT "A"
PROPERTY MAP
(see attachment)
DOCSOC-#1897808-v3-ICO ENA.docx
PROPERTY"
it! 0
10
ILI
AA
EXHIBIT `B"
PROPERTY DESCRIPTION
(see attachment)
11
#
1
2
3
5111 Street
APN
0134-053-20
�0131.4-053-21
-053-22
Gateway Property
Address
742 W. Spruce St.
W. Spruce St
W. Spruce St.
Site Size (acres)
0.16
0.16
0.16
Zoning
CR -2
CR -2
CR -2
4
5
6
7
8
9
0134-053-23
0134-053-25
0134-053-26
0134-054-07
0134-05408
013405409
W. Spruce St.
555 N. "H" St.
N. "H" St.
746 W. 5t' St.
W. Spruce St.
723 W. Spruce St.
0.16
0.17
0.17
0.47
0.13
0.11
CR -2
CR -2
CR -2
CR -2
CR -2
CR -2
10
0134054-24
W. 51h St.
0.77
CR -2
11
0134-054-25
796 W. 5t' St.
0.43
CR -2
12
13
0134-054-26
0134-061-21
770 W. 5t' St.
696 W. 5th St.
0.56
0.14
CR -2
CR -2
14
0134-061-22
696 W. 5th St.
0.10
CR -2
15
0134-061-25
696 W. 5th St.
0.09
CR -2
16
0134-061-30
696 W. 5t' St.
0.19
CR -2
17
0134-093-05
745 W. 5t' St.
0.66
CR -2
18
0134-093-06
W. 5t' St.
0.07
CR -2
19
0134-093-07
575 W. 5t' St.
0.13
CR -2
20
0134-093-08
701 W. 5'h St.
0.18
CR -2
21
0134-093-09
N. "G" St.
0.21
CR -2
22
0134101-02
673 W. 5d' St.
0.17
CR -2
23
0134101-03
673 W. 5U' St.
0.14
CR -2
24
0134-101-04
W. 5m St.
0.17
CR -2
25
0134-101-05
W. 5d' St.
0.24
CR -2
26
0134-101-06
W. 5th St.
0.17
CR -2
27
0134-101-28
495 N. "G" St.
0.41
CR -2
TOTAL ACRES
6.56
12
DOCSOC-#1897808-v3-ICO ENA.docx