HomeMy WebLinkAboutR41-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Gary Van Osdel
Executive Director
SUBJECT:
2004 REDEVELOPMENT PARTICIPATION
AGREEMENT BETWEEN THE
REDEVELOPMENT AGENCY AND LA
CURACAO, INC., AND A
REDEVELOPMENT COOPERATION AND
FINANCING AGREEMENT BETWEEN
THE REDEVELOPMENT AGENCY AND
THE CITY (LA CURACAO DEPARTMENT
STORE)
DATE:
r'
November 4, 2004 0 \ \ , ......
., ..
ORlGINAL
Svnopsis of Previous Commission/Council/Committee Action(s):
On November 2, 2004, Redevelopment Committee (Members Estrada and Longville present) voted to recommend that the
Community Development Commission consider this action for approval.
Recommended Motion(s):
(Mayor and Common Council)
MOTION A: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE CITY
OF SAN BERNARDINO, CALIFORNIA (LA CURACAO, INC., - REDEVELOPMENT COOPERATION
AND FINANCING AGREEMENT)
(Community Development Commission)
MOTION B: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN REDEVELOPMENT COOPERATION AND FINANCING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND THE CITY OF SAN BERNARDINO, CALIFORNIA (LA CURACAO, INC., - REDEVELOPMENT
COOPERATION AND FINANCING AGREEMENT)
MOTION C: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN 2004 REDEVELOPMENT PARTICIPATION AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND LA
CURACAO, A CALIFORNIA CORPORATION
Contact Person(s):
Project Area(s)
Gary Van Osdel
Tri-City
Phone:
(909) 663- 1044
Ward(s):
Third
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letter(s)
Source:
N/A
N/A
SIGNATURE:
Commission/Council Notes: (2cJo 4 ~"\-- 12-
OX-I '2cdl- LIt,
CfY--12UA-.<\i
P:\Agcndas\Conun Dcv Commission\CDC 2004\04-11-15 La Curacao Participation Agrmt. SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 11/15/2004
Agenda Item Number: f( L{ I
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
2004 REDEVELOPMENT PARTICIPATION AGREEMENT BETWEEN THE REDEVELOPMENT
AGENCY AND LA CURACAO, INC., AND A REDEVELOPMENT COOPERATION AND
FINANCING AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY AND THE CITY
(LA CURACAO DEPARTMENT STORE)
BACKGROUND:
La Curacao is a Los Angeles-based retail and export specialist catering to the Mexican and Central American
communities in the Los Angeles basin. Currently, La Curacao operates department stores in Downtown Los
Angeles, South Gate, Panorama City, and Huntington Park.
In June of 2002, upon learning of La Curacao and its unique market niche, Agency staff initiated efforts to
attract the company to San Bernardino. To that end, on June 24, 2002, staff contracted with the firm of
Thompson Associates to undertake a fielded sales forecast analysis to determine the sales potential of a La
Curacao store in our community. On August 26, 2002, Staff received a report from Thompson Associates,
which concluded that the proposed San Bernardino location represented a moderate deployment opportunity for
La Curacao, with first year sales projected at $20.9 million. At that time, two potential sites for a La Curacao
store were being considered, the depot planning area and the Carousel Mall.
On October 16, 2002, representatives of La Curacao met with owners of the Carousel Mall to discuss the reuse
of the former Montgomery Wards building including possible rent structures and various redevelopment
scenarios. On December 4, 2002, after meeting with the Mayor, representatives of La Curacao indicated that
San Bernardino had moved up on their list of preferred expansion locations. Later that same month, at the
invitation of La Curacao, the Mayor's Chief of Staff, the Carousel Mall Manager and Agency Executive
Director toured the four La Curacao stores and the corporate headquarters.
In February of 2003, Agency staff was advised that due to the low retail sales totals in December and January,
La Curacao had decided to re-evaluate the market and their expansion timing, a process that might take as long
as 180 days to resolve. In the same communique, Staff was advised that San Bernardino was not their first
expansion option and that they might ultimately open the next two stores elsewhere depending on the
opportunity and the safety of each. Despite this setback, Staff continued to maintain communications with La
Curacao officials during the next three months.
On June 13, 2003, the Mayor, Councilwoman Estrada, the City Administrator, and the Agency Executive
Director visited the La Curacao corporate headquarters to observe and discuss the company's operations as well
as the potential impact the company could have on San Bernardino in general and on the Mall in particular. On
July 22,2003, the Mayor and Councilwoman Estrada hosted a meeting with eight of the principal executives of
La Curacao. Also in attendance was Chief Zimmon, who addressed issues regarding crime and safety and John
Husing who gave the economist's sales presentation for locating in this area.
On September 11, 2003, Agency staff received a letter from La Curacao indicating a willingness to commit to
join a team to revitalize the Carousel Mall and locate a department store there if the City, Agency, and Mall
owner were committed to investing the time, effort and monies to develop and implement a redevelopment plan
for the Mall incorporating a re-design of the Mall complete with new facades, interiors, signage and name
change. In effect, La Curacao offered to commit to serving as the catalyst for a full-scale de-
malling/repositioning of the Mall. On September 12, 2003, Agency staff received a letter from the Mall owner
indicating, among many things, a need to engage a joint venture partner if La Curacao's proposal was to be
embraced.
P:\Agendas\Comm Dev Commission\CDC 2004\04-11-15 La Curacao Participation Agrmt. SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 11/15/2004
Agenda Item Number: f( 4/
Economic Development Agency Staff Report
La Curacao Participation Agreement SR
Page 2
On October 8, 2003, the Agency Executive Director, Agency Special Counsel, and the City Administrator met
with the Mall owner, manager, and legal counsel to discuss the La Curacao proposal and to prepare for a
meeting with La Curacao to be held the following day. On October 9, 2003, the parties met with representatives
of La Curacao to discuss the issues related to the remake of the Mall. At the conclusion of the meeting, two
facts were undeniable: (1) the Mall owner would need to have a joint venture partner to provide developer
expertise and share in the cost and (2) the window of opportunity to take advantage of La Curacao's offer was
limited to 6 to 8 months at best.
During the past twelve months, the Mall owner, Mall manager and Agency Executive Director have met with at
least four potential joint venture partners who, subsequent to the meetings, spent considerable time in due
diligence before electing not to proceed any further. In the mean time, the Agency's application for HUD
Section 108 funds with which to fund site assembly for an alternate La Curacao site in the depot planning area
has yet to be approved.
The owners of La Curacao recently announced plans to open 15 more stores in the next five years and are
considering taking the company public ifthey move forward with plans to move into other states that are heavily
Hispanic. La Curacao officials have advised Agency staff that La Curacao can no longer wait for the Mall
owner's quest for a venture partner or for the Agency to assemble a site near the depot. They want to open a
department store in this area now and are looking to accomplish that goal in either San Bernardino or Fontana.
The potential site in San Bernardino is the old Sam's Club building located at 885 E. Harriman Place. La
Curacao will commit to lease the 102,000 square foot Sam's Club building for an initial 10.5 year term with
options totaling 24 years, subject to reaching agreement with the Agency relative to the proposed employment
subsidy.
At the October 5, 2004 meeting of the Redevelopment Committee, when the proposed transaction with La
Curacao was first presented, Chairperson Estrada expressed concerns as to the appropriateness of the Hospitality
Site for La Curacao. Consequently, the Committee requested that the item be continued thus enabling the
Chairperson to conduct further review of the subject site. On October 20, 2004, the Mayor, Chairperson
Estrada, and the Executive Director met with Mike Falkenstein, Vice President of Retail Development for La
Curacao. The purpose of the meeting was to discuss the issues raised in Mr. Falkenstein's letter to the Mayor
dated October II, 2004 (see attached), and to address concerns regarding the site and the degree of sales tax
sharing. At the conclusion of the meeting, the Mayor acknowledged the problems that preclude La Curacao
from locating at one of the City's preferred sites i.e., the Carousel Mall or the Depot area, and advised Mr.
Falkenstein that nevertheless, the City wants La Curacao in San Bernardino.
Sales projections for a La Curacao department store in San Bernardino range from $20.9 million in year one,
$26.3 million in year six to $35.2 million in year ten. La Curacao officials project employment opportunities at
100 full-time jobs in the first year of operations rising to 140 full-time jobs by the fifth year of operations. If the
proposed agreements are approved, La Curacao would anticipate opening by mid March 2005.
CURRENT ISSUE:
The proposed 2004 Redevelopment Participation Agreement between the Agency and La Curacao is a ten year
agreement that calls for the Agency to remit from legally available funds an annual employment subsidy to La
Curacao based on a site employment index which correlates the amount of sales and use tax generated with the
number of employees required to generate such sales and use taxes. The "site employment index" refers to the
total amount of sales and use taxes paid to the City from the sales goods from the proposed La Curacao location
in excess of $50,000 in each accounting year. The "employment subsidy" is to be determined by multiplying
P:\Agendas\Comm Dev Commission\CDC 2004\04-11-15 La Curacao Participation Agrmt. SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 11/15/2004
Agenda Item Number:
Jt4/
Economic Development Agency Staff Report
La Curacao Participation Agreement SR
Page 3
the site employment index for each accounting year by the following percentages for each respective accounting
year for sales taxes in excess of $50,000 each year.
Accounting Year 1 - 50%
Accounting Year 2 - 50%
Accounting Year 3 - 50%
Accounting Year 4 - 50%
Accounting Year 5 - 50%
Accounting Year 6 - 50%
Accounting Year 7 - 50%
Accounting Year 8 - 50%
Accounting Year 9 - 50%
Accounting Year 10 -50%
Under the proposed 2004 Redevelopment Participation Agreement, in exchange for the creation and
maintenance of a certain specified number of new jobs by La Curacao, the Agency will begin annual
disbursement of the employment subsidy to La Curacao on the thirtieth calendar day following each of the first
through the tenth anniversaries of the opening date. Additionally, the Agency will receive a 7.5% administrative
fee based upon the 50% share above the $50,000 base amount that is retained by the City.
Although the 2004 Redevelopment Participation Agreement is an obligation of the Agency, the Agency would
not enter into this Agreement without the commitment of the City to remit the funds to the Agency to fulfill the
Agency's obligation. The Agency is without any other source of funds from which to remit the employment
subsidy to La Curacao and Agency and City staffs have negotiated the arrangements contained in the proposed
Redevelopment Cooperation and Financing Agreement.
Thus, approval and execution of the attached form of the Redevelopment Cooperation and Financing Agreement
will assure that the Agency is able to fully meet its financial obligations to La Curacao pursuant to the 2004
Redevelopment Participation Agreement, and the City General Fund will be benefited by the new sales activities
and the jobs generated by La Curacao within the City. The payments to be remitted by the City to the Agency
under the Redevelopment Cooperation and Financing Agreement are entirely new moneys to the City General
Fund that would not have been available to the City but for the Agency commitment to enter into the
Redevelopment Participation Agreement with La Curacao.
ENVIRONMENTAL IMPACT:
The proposed activity is exempt pursuant to Section 15301 ofCEQA
FISCAL IMP ACT:
No fiscal impact to the Economic Development Agency; all funds necessary to implement this Agreement will
be obtained through the Redevelopment Cooperation and Financing Agreement with the City.
RECOMMENDATION:
That the Mayor and Common Council and the Community Development Commission adopt the attached
R,"Ol?) L t I
/
P:\Agendas\Conun Dev Commission\CDC 2004\04-1 ) -15 La Curacao Participation Agrmt. SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 11/15/2004
Agenda Item Number:
tLfI
~~
m
1605 West Olympic Blvd. SUIte 600 Los Angeles. CA 90015 Tel: 213. 386.4412 Fax: 213. 386.2601
VIA OVERNIGHT AND FAX
October 11 , 2004
MAYOR JUDITH VALLES
300 N "0" STREET
SAN BERNARDINO, CA. 92418
Dear Mayor Valles:
I am very concemed about recent events that have occurred that are blocking us from coming to the
City of San Bernardino. Your Re-Development committee is having difficulty in approving the
commitments that were made to us in order to attract La Curacao to San Bernardino. I need your
immediate assistance to quickly resolve this issue.
Your city departments, City Council members, Community Redevelopment and you hosted a very
informative luncheon exclusively for La Curacao's owners and Vice Presidents. Your presentation and
commitment to provide a sales tax incentive sold us on the idea of locating our first Inland Empire store
within your city limits. It was the most impressive presentation I have ever seen. Your redevelopment
agency did an outstanding job in preparing and executing this meeting. We left with the impression that
this was where we should be and that the City would do what it takes to make sure that we would
become a partner with this community.
At that time, we were all focusing our efforts on the Carousel Mall, in the hopes of revitalizing it as a
retail center. After over 18 months of the landlord trying to attract a partner to join the project, they still
have not made any progress. In fact, the center is now less retail-friendly, as the mall has continued to
rent significant space to Office and parking-intensive Call Center users. In fact, brokers have been
trying to solicit interest from other major retail anchors for a new project without success, Dean Curci is
still looking for a partner and a plan. I spoke with him last week and ~is take is that this will take "Many
years to complete. There will be a very long process just to decide what to do, because there are so
many owners to deal with". Dean is envisioning Office, Residential and Retail in a giant mixed-use
proje~. I r~ally h?pe that h~ l11ak~~. a su~~~ ~f!~,~S)tis._a ,9r~a.t ~~e of t~e land. The only-p!otJ~ isC'
that thiS project will not happen for a very 10ng't1me:We Invested more time and effort onthls.~1l"n ~e .
planned on, and we need to open a store now.
There was also the "Depot Project" which we considered. I understand that due to cost ovenuns, tile
project is on hold and may be sig'nificantlyscaled back. The first phase was to be open already. This'
project is still too undefined and is also no~ immediately available, and may not happen as oiiginally
designed. We need our first Inland store open now, so we can plan other store openings in the region
over the next few years. This San Bemardino store was to be the hub for our further expansion to the
North, East, and South. .... " ".
. -"';.~- .~- . ~_.,;t
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. IAmRACAOll ' ..
UN POCO D. au PAIS ~
www.lacuracao.com
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October 11, 2004
. Page 2
1605 West Olympic Blvd, Suite 600 Los Angeles, CA 90015 Tel: 213, 3H6.4412 Fax: 213, 386.2601
Since this northern part of town is still in flux, we moved our effort to the other parts of town. Before I
spent time on these other options, I specifically asked Gary Van Osdel if the offered incentive applied
only to Carousel Mall or is it available to us at any City location we could find,Gary said that (he Sales
Tax Rebate would be available. Other incentives regarding landscaping and common area upgrades
that the City offered at the mall were specific to Carousel because the city owned a significant part of
the mall. Based on this, I continued looking in the City, as well as other options in neighboring
communities, as a backup.
'"
~:=
I then investigated Inland Mall, which was purchased by our friends at Macerich, and the former Sam's
Club site, which had been vacant for a long time, and is immediately available, We also lopked at oth~(.
land development opportunities, which had timing problems. When I was down to two viable locations
in the City, I spoke again with Gary Van Osdel and wanted to start the process of firming up the
incentive agreement. He told me that we needed to finalize our decision on one of the SitesJar:l1im to
proceed, We negotiated with both groups and came to the conclusion that the Sam's Clu~ilrwould
be the best option based on timing and co-tenancy in the area, When I was close enough on~y lease
negotiation to know that the deal was going to close between the landlord and La Curacao; I let Gary
know and he started the process, I explained to him that we have specific timing issues belyieen the
landlord and us that an extended city approval process would cause problems, Sam's Club wants to
put in a temporary user, which they have in-hand, until their lease finishes, If this happens, the deal
would no longer be good for us, We would then have to take advantage of other opportunities outside
of the City of San Bemardino, .
At Gary's first committee meeting, other issues prevented it from being considered, which delayed this
project more, At his subsequent meeting, one of the Board Members opposed the approval of our
incentive package because it was not in her City Council District, Apparently, she is now trying to find
us another site in her district to open a store in,
, '.
La Curacao has spent a lot of time and effort based on everything you did to interest us in the City. We
made every effort to locate at the Carousel Mall, but it is not current~ a feasible optionfpt retail use,
and is in fad tuming into an office complex. We looked at every option in the City. La Curacao and our
prospective landlord, Greg GreenStein, are being punished for trying to revitalize his center after the
,I'- --:-IP,~of.hi's,and~or'afe\vyearsago. -. ...:;CO, . "
We are still very excited about your vision for the City and the conVincing sales pitch your team made:
You had us sold on the idea. In order for us to be able to get our store open in San Bemardino, we
need to have this tax rebate committed to and executed right away. We are. out of time and the
, . . '. : opportunity that ;,veilU worke<l for will, quickly fa,de if we carinolak-e lnilliQateacUon.
., '=.;" ~-'-":~~
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---.
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www.lacuracao.com
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October 11, 2004
. Page 3
1605 West Olympic Blvd. Suite 600 Los Angeles. CA 90015 Tel: 213. 386.4412 Fax: 213. 386.2601
Others in the same area have received much more than what we are asking for. The center next door
has one giant pylon sign and from what I understand, a second one is on the way. We are only asking
for something larger than the sign the old Sam's Club had, which is currently hidden behind and
overgrown tree. We also asked Gary for the ability to trim the trees along the freeway so our fayade
decor can be seen. We would also like to be able to have a Drive-Thru pad for Polio Campero on the
site, as long as it conforms to the parking requirements for the center. This is all I asked for. These
other items have zero expense to the city, as compared to the expenses that the city would have had to
incur at Carousel.
We are not asking for anything that is out of line, or has not been given to others in the area. Both our
prospective landlord and La Curacao deserve the same treatment and considerations that other
centers in the area were given. I would like to meet with you, at your earliest convenience to see how
we can save this project and bring La Curacao to San Bernardino. My office line is 213-427-2692, Cell
is 213-447-9100 and my fax is 213-365-4671.
I hope to hear from you soon.
Sincerely,
~ ~----.
/--1~- /---- '. -"
~. / {,.-(
,/ '-- .
Michael W Falkenstein
SeniorVP, Retail Development
La Curacao.
Cc:
Gary Van Osdel
Greg Greenstein
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www.lacuracao.com
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2
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN
REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND THE CITY OF SAN BERNARDINO, CALIFORNIA
(La Curacao, Inc., - Redevelopment Cooperation and Financing Agreement)
3
4
5
6
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
7
has entered into that certain 2004 Redevelopment Participation Agreement with La Curacao,
8
Inc., ("La Curacao") as approved and authorized for execution by the Community Development
9
Commission of the City of San Bernardino (the "Commission") pursuant to separate action of
10
the Commission on behalf of the Agency; and
11
WHEREAS, the implementation of said 2004 Redevelopment Participation Agreement
12
contemplates that certain funds will be made available to the Agency from the City of San
13
Bernardino, California (the "City"), based upon the index of financial benefits accruing to the
14
City calculated upon the financial performance of the project identified in the 2004
15
Redevelopment Participation Agreement; and
16
WHEREAS, the Agency is required pursuant to the 2004 Redevelopment Participation
17
Agreement to remit certain payments to La Curacao related to the number of employment
18
opportunities generated by the new sales location within the Tri-City Redevelopment Project
Area based upon an index of financial performance of La Curacao which has a direct positive
19
20
financial benefit upon the City General Fund; and
21
WHEREAS, the Mayor and Common Council deem it desirable to approve and
22
authorize for execution the form of the Redevelopment Cooperation and Financing Agreement
23
by and between the Agency and City substantially in the form as attached hereto for the purpose
of providing the source of funds required of the Agency to fulfill its obligations to La Curacao
24
25
pursuant to the 2004 Redevelopment Participation Agreement.
P:\Agendas\Resolulions\Resolulions\2004\04-11-15 La Curacao MCC Reso.doc -1-
NOW, THEREFORE, THE MA YOR AND COMMON COUNCIL, AS THE
2 GOVERNING BODY OF THE CITY OF SAN BERNARDINO, DOES HEREBY RESOLVE,
3 DETERMINE AND ORDER AS FOLLOWS:
4 Section 1. The Mayor and Common Council hereby find and determine that the recitals
5 as contained herein are accurate and correct in all respects.
6 Section 2. The Mayor and Common Council hereby approve the form of the
7 Redevelopment Cooperation and Financing Agreement substantially in the form as attached
8 hereto with such additional changes and modifications as deemed necessary by the City
9 Attorney to implement the intent of this Resolution and said Redevelopment Cooperation and
10 Financing Agreement.
II Section 3. The Mayor and Common Council hereby authorize the execution of the final
12 form of the Redevelopment Cooperation and Financing Agreement by the Mayor and the City
13 Clerk when such final form thereof has been presented for execution by the City Attorney.
14 Section 4. The approval, execution and implementation of the Redevelopment
15 Cooperation and Financing Agreement does not constitute a "Project" within the provisions or
16 meaning of the California Environmental Quality Act of 1970, as amended ("CEQA"), and no
17 environmental review is required in connection with the approval, execution and
18 implementation of the Redevelopment Cooperation and Financing Agreement.
19 Section 5. This Resolution shall take effect from and after the date as set forth in the
20 City Charter and shall not be repealed or amended to adversely affect the rights of the parties
21 thereto so long as the Redevelopment Cooperation and Financing Agreement remains in effect
22 and requires performance obligations of the parties.
23 / / /
24 / / /
25 / / /
P:\Agendas\Resolutions\Resolutions\2004\04-1 1-15 La Curacao MCC Reso.doc -2-
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN
REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND THE CITY OF SAN BERNARDINO, CALIFORNIA
(La Curacao, Inc., - Redevelopment Cooperation and Financing Agreement)
3
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a meeting thereof,
held on the day of , 2004, by the following vote to wit:
6
7
Council Members:
Abstain
Absent
Ayes
Nays
8
9
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
10
11
12
13
14
15
Rachel G. Clark, City Clerk
16
17
The foregoing resolution is hereby approved this
day of
,2004.
18
19
20
Approved as to form and Legal Content:
Judith Valles, Mayor
City of San Bernardino
21
22
23
24
25
P:\Agendas\Resolutions\Resolutions\2004\04-11-1S La Curacao MCC Reso.doc -3-
Exhibit "A"
CITY OF SAN BERNARDINO
AND
REDEVELOP;\IENT AGENCY OF THE CITY OF SA]'\,' BERl"ARDINO
REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
(La Curacao)
THIS REDEVELOPMENT COOPERA nON AND FINANCING AGREEMENT (this
"Agreement") is dated as of November_, 2004, by and between the Redevelopment Agency
of the City of San Bernardino, a public body, corporate and politic (the "Agency"), and the City
of San Bernardino, California, a municipal corporation (the "City"), and is entered into with
reference to the facts set forth in the following Recital paragraphs:
- RECTT ALS-
WHEREAS, the Agency is entering into that certain Redevelopment Participation
Agreement, dated as of November_, 2004, by and between the Agency and La Curacao, a
California corporation (the "La Curacao AgreemenC), for the redevelopment and reuse of certain
lands within the City for operation by La Curacao as a Retail Department Store ("Business");
and
WHEREAS, the implementation of the La Curacao Agreement will confer substantial
benefits on the City in ternlS of redevelopment and reuse of the site of the Business and creation
of an aggregate of not less than 1 00 nrw jobs within the City; and
WHEREAS, the La Curacao Agreement will also provide the City with a significant
source of new tax revenues from the establislunent of the Business; and
WHEREAS, the Agency shall incur certain obligations, described below as the "La
Curacao Agreement Tndebtedi1ess", in connection with the La Curacao Agreement; and
WHEREAS, the Agency does not presently have a source of tax increment revenues to
repay the La Curacao Agreement Indebtedness;
WHEREAS, it is necessary and desirable for the City and the Agency to enter into this
Agreement for the Agency to repay the La Curacao Agreement Indebtedness, as may hereafter
be incurred by the Agency under the La Curacao Agreement.
NOW, THEREFORE, THE CITY AND THE AGENCY HEREBY AGREE AS
FOLLOWS:
Section 1. The City hereby authorizes the Agency to incur indebtedness under the La
Curacao Agreement ("La Curacao Agreement Indebtedness") that is payable by the Agency in
whole or in part from the proceeds of the assistance to be provided by the City to the Agency, as
set forth in Section 2 of this Agreement. For the purposes of this Agreement, the words "La
4831-9623-3984.14831-9623.3984.1
\\FSERVER'Data\Agcndro Agreemenls-.A.mC'ndmenIS"Agrmls-AmenJ 2004',04-11-15 La Curacao Coop & FlIl:!ncmg ^tlreemenl 11f
Exhibit "A"
Curacao Agreement Indebtedness" mean and include any obligation that the Agency may
undertake to payor discharge under that certain Redevelopment Participation Agreement by and
betvieen th~ Agency and La Curacao, a California corporation.
Section 2. Subject to the terms and conditions of this Agreement, the City agrees to
provide redevelopment financing assistance to the Agency (the "City Assistance") each year
during the term of this Agreeme'1t in the total amount payable by the Agency under the La
Curacao Agreement. The City sha!l disburse the proceeds of the City Assistance in annual
installments (each a "City Assistance Payment", as further defined in Section 4) on each of the
first through the tenth anniversaries of the Opening Date (as defined herein). The Agency shall
use and apply each City Assistance Payment to pay La Curacao Agreement Indebtedness.
Section 3. The City and the Agency each acknowledge, understand and intend that
the obligation of the City to pay each City Assistance Payment to the Agency each year during
term of this Agreement shall constitute a current expense of the City to support the La Curacao
Agreement. The obligation of the City to provide City Assistance Payments to the Agency in
each fiscal year during the term of this Agreement is a general obligation of the City, subject to
annual appropriation by the City. Furthermore, the obligation of the City to the Agency arising
under this Agreement shal! not in any way be construed to be a debt of the City in contravention
of any applicable constitutional restriction of the State of California concerning the creation of
indebtedness by the City.
Section 4.
(a) The datc on which the Business first upens for new business to the general
public is referred to herein as the "Opening Date", which date shall be on or before June 1, 2005.
The initial City Assistance Payment shall be made on the first anniversary of the Opening Date
in an amount deternlined in accordance with Section 4(b). Thereafter, on each anniversary of the
Opening Date occurring during the remainder of the term of this Agreement, the City shall make
the City Assistance Payments to the Agency, in accordance with the formula set forth in Section
4(b).
(b) The City Assistance Payments to the Agency shall be calculated by
multiplying the applicable Accounting Year Index (as defined herein) by a number equal to the
total amount of local sales and use taxes paid to the City, under Revenue and Taxation Code
Section 7200 et seq. (as may hereafter be amended, substituted or modified by any successor
local sales and use tax law), on the gross receipts of the Business from the sale or lease of all
tangible personal property from the Business during the applicable Accounting Year, in excess of
Fifty Thousand Dollars ($50,000). The "Accounting Year Index" for each respective
Accounting Year, shall be as follows:
Accounting Year I - 50 %
Accounting Year 2 - 50 %
Accounting Year 3 - 50 %
Accounting Year 4 - 50 %
Accounting Year 5 - 50 %
4831-9623-3984.14831-9623-3984.1
2
\\FSERVER\Oata\A~endas\A, :cmenls-Arr:cndment5'A~rmts Amend 2004.,04-11" 15 La Cura-:ao Coop & Financing Agreement nf
Exhibit "A"
Accounting Year 6 - 50 %
Accounting Year 7 - 50 %
Ac.:ounting Year 8 - 50%
Accounting Year 9 - 50 %
Accounting Year 10 -50 %
[i.e., in Accounting Year I, City Assistance Payment = (total sales and use tax revenues
to the City from the gross receipts of the project identified in the La Curacao - $50,000) x
.50.]
(c) The precise amount of the City Assistance Payments shall be determined
by the Agency for each Accounting Year by reference to Revenue and Taxation Code Sections
7200 et seq., related remittance advice or information provided to the City by the State Board of
Equalization and the applicable Accounting Year Index. If Revenue and Taxation Code Sections
7200 et seq., are amended, substituted or modified, following the effective date of this
Agreement, in a manner that affects the calculation of the City Assistance Payments, as set forth
above. then the City Assistance Payments shall be computed in each Accounting Year in which
such amendment, substitution or modification is effective, by reference to tae Revenue and
Taxation Code Sections 7200 et seq., then in effect.
(d) Provided the Business opens for retail sales business to the general
public, the City reasonably believes that funds shall be available each fiscal year for the payment
of each City Assistance Payment. The City hereby covenants that it shall do all things lawfully
within its power to obtain funds from which to pay City Assistance Payments to the Agency.
The City further covenants and agrees to include provisions in its budget for each fiscal year
during the term of this Agreempnt for the payment of the City Assistance Payments to the
Agency and the City shall exercise best efforts to approve such portion of the budget, subject to
the funds then being available.
(e) The City accounting personnel shall also include an administration fee
payable to the Agency each year in a sum amounting to 7.5% of the 50% that is retained by the
City pursuant to the calculation under subsection (b) above. Such administrative fee will be
payable to the Agency to cover the cost of audit, accounting and legal fees associated with the
Agency's efforts to create new sales tax revenues for the City.
Section 5. The Agency shall use and apply each City Assistance Payment to pay
indebtedness of the Agency arising from the La Curacao Agreement. The Agency and the City
hereby agree that the Agency shall have no obligation to repay the City for any City Assistance
Payments.
Section 6. The City shall pay City Assistance Payments to the Agency upon receipt
of a written invoice from the Agency stating that the Agency shall use and apply the City
Assistance Payment to repay La Curacao Agreement Indebtedness. Each such written invoice of
the Agency shall set forth the current balance of the La Curacao Agreement Indebtedness and
provide an accounting of all payments made by the Agency towards the La Curacao Agreement
Indebtedness during the term of this Agreement.
4831-9623-3984.14831-9623-3984.1
3
\\FSERVER'DaI3'Agendas..Agreements.AmendmeTHsAgrmls.Ame,;d 2I)1A.(}4.11.15 l<i Curacao Coop & Fin;\ncing Agreement I1f
Exhibit "A"
Section 7. This Agreement shall tenninate on the earlier to occur of: (i) the tenth
(lOlh) anniversary of the Opening Date and the payment of the City Assistance Payment due on
t11f' tenth (loth) anniversary of the Opening Date, if any; or (ii) the La Curacao Projt:ct
Indebtedness is repaid in full by the Agency; or (iii) the Agency is no longer obligated to repay
the La Curacao Project Indebtedness.
Section ~. This Agreement shall take effect from and after the date of adoption and
approval by the Common Council of the City and the Community Development Commissicn, as
tit(; goveming board of the Agency, pursuant to official action of the goveming bodies thereof
and shall be effective for the period of time provided in Section 7.
4831-9623-398414831-9623-3984.1
4
P 'Agcnd.lSAgrcemcnls-AmenJmemsAbrmls-AmenJ ::!004\()4.] t .15 L1 Curacao C00p & Fman.:mg AgreCrT1':ni 11f
Exhibit "A"
IN WITNESS WHEREOF, the pal1ies her~to have entered into this Agreement as
of the date first abov': written.
CiTY
City of :3 an Bernardino
By:
Judith Valles,
Mayor of the City of San Bcmardir.o
(SEAL)
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
AGENCY
R,~development Agencf cfthe City
of San Bernardino
By:
Judith Valles
Chairperson of the Community
Development Commission, its
governinS board
(SEAL)
ATTEST:
Agency Secretary
APPROVED AS TO FORM AND CONTENT:
Agency Counsel
4831-9623-39R4.14831-9623-39841
5
P 'Agendas '\greem<:n(s-AmcnJmcfllsAgrmts.Amend 20Q4,(J4-11 151.1 ClraCJ'-, Cl)o;J & Fln.ln::lng ,'\gret[',,~nl nf
(C ~ p",. r
OJ \!~->
') W .~
RESOLUTION NO.
2
5
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN
REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND THE CITY OF SAN BERNARDINO, CALIFORNIA
(La Curacao, Inc., - Redevelopment Cooperation and Financing Agreement)
3
4
6
7 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
8 has entered into that certain 2004 Redevelopment Participation Agreement with La Curacao,
9 Inc., ("La Curacao") as approved and authorized for execution by this Commission pursuant to
10 separate action of this Commission on behalf of the Agency; and
11 WHEREAS, the implementation of said 2004 Redevelopment Participation Agreement
12 contemplates that certain funds will be made available to the Agency from the City of San
13 Bernardino, California (the "City"), based upon the index of financial benefits accruing to the
14 City calculated upon the financial performance of the project identified in the 2004
15 Redevelopment Participation Agreement; and
16 WHEREAS, the Agency is required pursuant to the 2004 Redevelopment Participation
17 Agreement to remit certain payments to La Curacao related to the number of employment
18 opportunities generated by the new sales location within the Tri-City Redevelopment Project
19 Area based upon an index of financial performance of La Curacao which has a direct positive
20 financial benefit upon the City General Fund; and
21 WHEREAS, the Commission deems it desirable to approve and authorize for execution
22 the form of the Redevelopment Cooperation and Financing Agreement by and between the
23 Agency and City substantially in the form as attached hereto for the purpose of providing the
24 source of funds required of the Agency to fulfill its obligations to La Curacao pursuant to the
25 2004 Redevelopment Participation Agreement.
P:\Agendas\Resolutions\Resolutions\2004\04-11-1S La Curacao CDC Reso.doc -1-
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, AS
2 THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
3 BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
4
Section 1.
The Commission hereby finds and determines that the recitals as
5 contained herein are accurate and correct in all respects.
6 Section 2. The Commission hereby approves the form of the Redevelopment
7 Cooperation and Financing Agreement substantially in the form as attached hereto with such
8 additional changes and modifications as deemed necessary by the City Attorney to implement
9 the intent of this Resolution and said Redevelopment Cooperation and Financing Agreement.
10 Section 3. The Commission hereby authorizes the execution of the final form of the
II Redevelopment Cooperation and Financing Agreement by the Agency Chairperson and the
12 Agency Secretary when such final form thereof has been presented for execution by the City
13 Attorney.
14 Section 4. The approval, execution and implementation of the Redevelopment
15 Cooperation and Financing Agreement does not constitute a "Project" within the provisions or
16 meaning of the California Environmental Quality Act of 1970, as amended ("CEQA"), and no
17 environmental review is required in connection with the approval, execution and
18 implementation of the Redevelopment Cooperation and Financing Agreement.
19 Section 5. This Resolution shall take effect from and after the date of adoption and
20 shall not be repealed or amended to adversely affect the rights of the parties thereto so long as
21 the Redevelopment Cooperation and Financing Agreement remains in effect and requires
22 performance obligations of the parties.
23 IIII
24 IIII
25 IIII
P:\Agendas\Resolutions\Resolutions\2004\04-11.15 La Curacao CDC Reso.doc -2-
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN
REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND THE CITY OF SAN BERNARDINO, CALIFORNIA
(La Curacao, Inc., - Redevelopment Cooperation and Financing Agreement)
3
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Community Development Commission of the City of San Bernardino at a
meeting thereof, held on the day of , 2004, by the following vote to wit:
6
7
8 Commission Members:
Navs
Abstain
Absent
Ayes
9
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
10
11
12
13
14
15
16
Secretary
17
18
The foregoing resolution is hereby approved this
day of
,2004.
19
20
Judith Valles, Chairperson
Community Development Commission
City of San Bernardino
21
22
Approved as '0 form and Legal Content:
23
24
By:
25
Agency Counse
(
'-,,--/'
P:\Agendas\Resolulions\Resolulions\2004\04-11- t 5 La Curacao COC Reso.doc ..3..
Exhibit "A"
CITY OF SAN BERJ'IlARDINO
AND
REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.l\IARDINO
R.EDEVELOPMENT COOPERATION AND FINANCING AGREEMENT
(La Curacao)
THIS REDEVELOPMENT COOPERATION AND FINANCING AGREEMENT (this
"Agreement") is dated as of November_, 2004, by and between the Redevelopment Agency
of the City of San Bernardino, a public body, corporate and politic (the "Agency"), and the City
of San Bemardino, California, a municipal corporation (the "City"), and is entered into with
reference to the [acts set forth in the following Recital paragraphs:
- RECITALS-
WHEREAS, the Agency is entering into that certain Redevelopment Participation
Agreement, dated as of Novembtr __, 2004, by and between the Agency and La Curacao, a
California corporation (the "La Curacao Agreement"), for the redevelopment and reuse of certain
lands within the City for operation by La Curacao as a Retail Department Store ("Business");
and
WHEREAS, the implementation of the La Curacao Agreement will confer substantial
benefits on the City in ten11S of redevelopment and reuse of the site of the Business and creation
of an aggregate of not less than 100 new jobs within the City; and
WHEREAS, the La Curacao Agreement will also provide the City with a sih'11ificant
source of new tax revenues from the establishment of the Business; and
\\'HEREAS, the Agency shall incur certain obligations, described below as the "La
Curacao Agreement indebtedness", in connection with the La Curacao Agreement; and
WHEREAS, the Agency does not pre~ently have a source of tax increment revenues to
repay the La Curacao Agreement Indebtedness;
WHEREAS, it is necessary and desirable for the City and the Agency to enter into this
Agreement for the Agency to repay the La Curacao Agreement Indebtedness, as may hereafter
be incurred by the Agency under the La Curacao Agreement.
NOW, THEREFORE, THE CITY AND THE AGENCY HEREBY AGREE AS
FOLLOWS:
SeCtion 1. The City hereby authorizes the Agency to incur indebtedness under the La
Curacao Agreement ('"La Curacao Agreement Indebtedness") that is payable by the Agency in
whole or in part from the proceeds of the assistance to be proVided by the City to the Agency, as
set forth in Section 2 of this Agreement. For the purposes of this Agreement, the words "La
4831-9623-3984.14831-9623-3984.1
FSER\TR Dald\AgcnJas Agre.:menb-AmcndmenI5Agrrnts-AmenJ ::::OC.4,O~.ll.15 La C.-!racao Coop 8: FInancing Agreemenl nf
Exhibit "A"
Curacao Agreement Indebtedness" mean and include any obligation that the Ag~ncy may
undertake to payor discharge under that certain Redevelopment Participation Agreement by and
between the Agency and La Curacao, a California corporation.
Section 2. Subjec; to the tenTIS and conditions of this Ab'Teemenl. the City agrees to
provide redevelopment financing assistance to the Agency (the "City Assistance") each year
during the ternl of this Agreement in the total a'l1'Junt payable by the Agency undt.r the La
Curacao Agreement. The City shall disburse the proceeds of the City Assistance in annu"l
installments (ea,:h a "City Assistance Payment", as further defined in Section 4) on each of the
first through the tenth anniversaries of the Opening Date (as defined herein). The Agency shall
use and apply each City Assistance Payment to pay La Curacao Agreement Indebtedness.
Section 3. The City and the Agency each acknowledge, understand and intend that
the obligation of the City to pay each City Assistance Payment to the Agency each year during
term of this Agreement shall constitute a current expense of the City to support the La Curacao
Agreement. The obligation of the City to provide City Assistance Payments to the Agency in
each fiscal year during the term of this Agreement is a general obligation of the City, subixt to
anIlUal appropriation by the City. Furthermore, the obligation of the City to the Agency arising
under this Agreement shall not in any way be construed to be a debt of the City in contravention
of any applicable constitutional restriction of the State of California concerning the creation of
indebtedness by the City.
Section 4.
(a) The date on which the Business first opens for new business to the general
public is referred to herein as the "Opening Date", which date shall be on or before June 1,2005.
The initial City Assistance Payment shall be made on the first anniversary of the Opening Date
in an amount deternlined in accordance with Section 4(b). Thereafter, on each anniversary of the
Opening Date occurring during the remainder of the term of this Agreement, the City shall make
the City Assistance Payments to the Agency, in accordance with the formula set forth in Section
4(b).
(b) The City Assistance Payments to the Agency shall be calculated by
multiplying the applicable Accounting Year Index (as defined herein) by a number tqual to the
total amount of local sales and use taxes paid to tbe City, under Revenue and Taxation Code
Section 7200 et seq. (as may hereafter be amended, substituted or modified by any successor
local sales and use tax law), on the gross receipts of the Business from the sale or lease of all
tangible personal property from the Business during the applicable Accounting Year, in excess of
Fifty Thousand Dollars ($50,000). The "Accounting Year Index" for each respective
Accounting Year, shall be as follows:
Accounting Year 1 - 50 %
Accounting Year 2 - 50 %
Accounting Year 3 - 50 %
Accounting Year 4 - 50 %
Accoullting Y tar 5 - 50 %
4831-9623-3984.14831-9623-3984.1
2
\FSERVER\Dala'Agcndas,^g~l:emems-AmcnJmellls\AgrmlS-A!!lCnJ 200404-11-15 La CUrle;, Coop &. rln3ncmg Agre,=mclll 11i
Exhibit "A"
Accounting Year I) - 50 %
Accoullting ','ear 7 - 50 %
Accounting '{ear 8 - 50%
Accounting Year 9 - 50 %
Accounting Year 10 -: 0 %
[i,e" in Accounting Year I, City Assistance Payment = ~total sales and use tax revenues
to the City from the gross receipts of the project identified in the La Curacao - $50,000) x
,50,]
(c) The precise amount of the City Assistance Payments shall be determined
by the Agency for each Accountiag Year by reference to Revenue and Taxation Code Sections
7200 et seq., related remittance advice or infoffilation provided to the City by the State Board of
Equalization and the applicable Accounting Year Index. If Revenue and Taxation Code Sections
7200 et seq., are amended, substituted or modified, following the effective date of this
Agreement, in a manner that affects the calculation of the City Assistance Payments, as set forth
above, then the City Assistance Payments shall be computed in each Accounting Year in which
such amendment, substitution or modification is effective, by reference to the Revenue and
Taxation Code Sections 7200 et seq., then in effect.
(d) Provided the Business opens for retail sales business to the general
public, the City reasonably believes that funds shall be available each fiscal year for the payment
of each City Assistance Payment. The City hereby covenants that it shall do all things lawfully
within its power to obtain funds from which to pay City Assistance Payments to the Agency.
The City further covenants and agrees to include provisions in its budget for each fiscal year
during the term of this Agreement for the payment of the City Assistance Payments to the
Agency and the City shall exercise best efforts to approve such portion of the budget, subject to
the funds then being availatk
(e) The City accounting personnel shall also include an administration fee
payable to the Agency each year in a sum amounting to 7.5% of the 50% that is retained by the
City pursuant to the calculation under subsection (b) above. Such administrative fee will be
payable to the Agency to cover the cost of audit, accounting and legal fees associated .vith the
Agency's efforts to create new sales tax revenues for the City.
Section 5. The Agency shall use and apply each City Assistance Payment to pay
indebtedness of the Agency arising from the La Curacao Agreement. The Agency and the City
hereby agree that the Agency shall have no obligation to repay the City for any City Assist8;lce
Payments.
~ection 6. The City shall pay City Assistance Payments to the Agency upon receipt
of a written invoice from the Agency stating that the Agency shall use and apply the City
Assistance Payment to repay La Curacao Agreement Indebtedness. Each such written invoice of
the Agency shall set forth the current balance of the La Curacao Agreement Indebtedness and
provide an accounting of all payments made by the Agency towards the La Curacao Agreement
Indebtedness during the term of this Agreement.
4831-9623-3984.14831-9623-3984.1
3
\:;St-:R\'ER'Data"Agendas'.Ag~eemenls.Arnend'Tlent~\Agrmts.."rnend 2C04J)4.11-15 La Curacao Co"n & hnan";lIlg Agfl::emenl11f
Exhibit "A"
~ection 7. TLis Agreement shall tenninatc on the earlie" to occur of: (i) the tenth
(1 nth) anniversary of the Opening Date and the payment of the City Assistance Payment due on
the tent~ (10th) anniversary of the Oper.ing Date, if ,my; or (ii) the La Curacao Project
lnd-:btedness is repaid in full by the Agency; or (iii) the Agency is no longer obligated to repay
the La Curacao Project Indebtedness.
Section ~. This Agreement shall take effect from and after the date of adoption and
approval by the Common Council of the City and the Community Development Commission, as
the governing board of the Agenr:y, pursuant to official action of the governing bodies thereof
and shal1 be effective for the period aftinlc provided in Section 7.
4331-9623-3984.14831-%23-398.1. .
4
P Agc!:da:.Agrccnlcn1s-ArnendmcrlS Agmns-Ar.lcnd 2004'f)~- i ! - \ ~ 1.<1 (ur;;":il() (oop & Fm.1nctng At!/ccrr'ent nf
Exhibit "A"
IN WITNESS Wf-IEREOF, th;; parties hereto have entered into this A,sreement as
of the date first above written.
CITY
Citv of San Berr.ardino
By:
Judith Valles,
Mayor of the City of San Bernardino
(SEN.)
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
AGENCY
Redevelopment Agency ('fthe City
of San Bernardino
By:
Judith Valles
Chairperson of the Community
Development Commi~sion, it~
governing board
(SEAL)
Ai TEST:
Agency Secretary
APPROVED AS TO FO~1\1 AND CONTENT:
Agency COl!nsel
4831-9623-3984.1.1831-9623-3984. ]
5
p".l..gef1d.:l~Agreeme!)lS.'\1"\endrnenlS !\grl1a~-Amen.j ::'IC~ ;"!~.Il-I ~ La Curac-\o COC'l' & Fmdm.:mg A~reement 111
RESOLUTIO~.~
2
3
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN 2004 REDEVELOPMENT PARTICIPATION AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND LA CURACAO, A CALIFORNIA CORPORATION
4
5
6
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
7
has been presented with a proposal to enter into a certain 2004 Redevelopment Participation
8
Agreement with La Curacao, Inc., ("La Curacao"), for the purpose of increasing employment
9
opportunities, encouraging redevelopment activities and economic development within the Tri-
10
City Redevelopment Project Area of the Agency; and
11
WHEREAS, the implementation of said 2004 Redevelopment Participation Agreement
12
will encourage the goals and objectives of the Agency by providing employment opportunities
13
for the residents of the City of San Bernardino, California (the "City"), and the Tri-City
14
Redevelopment Project Area for which the Agency shall remit certain annual employment
15
subsidy payments to La Curacao based upon the index of financial benefits accruing to the City
16
calculated upon the financial performance of the project identified in the 2004 Redevelopment
17
Participation Agreement; and
18
WHEREAS, the Agency is required pursuant to the 2004 Redevelopment Participation
19
Agreement to remit certain payments to La Curacao related to the number of employment
20
opportunities generated by the new sales location within the Tri-City Redevelopment Project
21
Area based upon an index of financial performance of La Curacao which has a direct positive
22
financial benefit upon the City General Fund; and
23
WHEREAS, the Commission deems it desirable to approve and authorize for execution
24
the form of the 2004 Redevelopment Participation Agreement by and between the Agency and
25
La Curacao substantially in the form as attached hereto for the purpose of encouraging
-1-
P:\Agendas\ResolutKms\Rcsolutions\2004\04-11-15 La CUrac.1(rParticipation Agreement CDC Reso.doc
redevelopment activities and economic development and providing increased employment
2 opportunities all as further set forth in the 2004 Redevelopment Participation Agreement.
3 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, AS
4 THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
5 BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
6
Section 1.
The Commission hereby finds and determines that the recitals as
7 contained herein are accurate and correct in all respects.
8
Section 2.
The Commission hereby approves the form of the 2004 Redevelopment
9 Participation Agreement substantially in the form as attached hereto with such additional
10 changes and modifications as deemed necessary by the City Attorney to implement the intent of
11 this Resolution and said 2004 Redevelopment Participation Agreement.
12
Section 3.
The Commission hereby authorizes the execution of the final form of the
13 2004 Redevelopment Participation Agreement by the Agency Chairperson and the Agency
14 Secretary when such final form thereof has been presented for execution by the City Attorney.
15
Section 4.
The approval, execution and implementation of the 2004 Redevelopment
16 Participation Agreement does not constitute a "Project" within the provisions or meaning of the
17 California Environmental Quality Act of 1970, as amended ("CEQA"), and no environmental
18 review is required in connection with the approval, execution and implementation of the 2004
19 Redevelopment Participation Agreement in the manner and with the limitations as set forth
20 therein limiting the liability of the Agency with respect to CEQA and the approval of the 2004
21 Redevelopment Participation Agreement.
22
Section 5.
This Resolution shall take effect from and after the date of adoption and
23 shall not be repealed or amended to adversely affect the rights of the parties thereto so long as
24 the 2004 Redevelopment Participation Agreement remains in effect and requires performance
25 obligations of the parties.
-2-
P\Agendas\Rcsolutions\Rcsolutions\2004\04-11-IS La Curacao-Participation Agreement COC Reso,doc
2
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN 2004 REDEVELOPMENT PARTICIPATION AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND LA CURACAO, A CALIFORNIA CORPORATION
3
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Community Development Commission of the City of San Bernardino at a
meeting thereof, held on the day of , 2004, by the following vote to wit:
5
6
7 Commission Members:
Abstain
Absent
Ayes
Nays
8
ESTRADA
LONGVILLE
MCGINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
9
10
11
12
13
14
15
Secretary
16
17
The foregoing resolution is hereby approved this
day of
,2004.
18
19
20
Judith Valles, Chairperson
Community Development Commission
City of San Bernardino
21
22 Approved as to form and Legal Content:
23
24 By:
25
-3-
P:\Agendas\Resolutions\Rcsolutions\2004\04.11.15 La Curacao-Participation Agreement CDC Reso.doc
Exhibit "A"
REDEVELOPMENT AGENCY OF PIE CITY OF SA!'1 BERNARD;NO
20nt
REDEVELOPMENT PARTlCIPil. nON AGREEMENT
(La Curacao)
THIS 2004 REDEVELOPMENT PARTICIPATION AGREEMENT (la Curacao) (this
"Agreement') is dated as of November _, 2004, and is entered into by and between La
Curacao, a California corporation (the "Participant") and the Redevelopment Agency of the City
of San Bernardino. a public body corporate and politic, exercising governmental functions and
powers, and organized and existing under the Community Redevelopment law of the State of
California. .Health and Safety Code Sections 3300U et seq. (the "Agency").
FOR GOOD AND V AUJABlE CONSIDEP '\ TION, THE RECEIPT A;ID
SUFFICIENCY OF WHICH IS HEREBY ACK...l\'OWLEDGED, A?\<TI THE MUTUAL
PROMISES AND COVENANTS OF THE PARTIES SET FORTH HEREIN, THE
PARTICIPANT AND THE AGENCY HEREBY AGREE, AS FOLLOWS:
SECTION 1. Purpose of A2reement. The purpose of this Agreement is to provide for
the redevelopment and economic reuse of certain lands and buildings located at 885 East
Harriman Place (the '"Site") and the ::reation of jobs within the City by the Participant. The
Participant shall acquire a kasehold interest in the Site, and shall design, constmct and finance
certain improvcments on the Site, which upon completion, shall be suitable for operation by the
PaI1icipant as a Retail Department Store ("Business").
SECTION 2. Defined Terms. In addition to the usage of certain terms that are defined
in othcr sections of this Agreement, the following words and phrases are used in this Agreement,
as follows, unless the particular context of usage of a word or phrase requires another
interpretation:
(a) "Accounting Year" m<::ans and refers to the twelve calendar month time period
commencing on the Opening Date and, thereafter, each successive twclve calendar month period,
with the last Accounting Year ending on the tenth (10th) anniversary of tbe Opening Date.
(b) "Business" means the Retail Department Stvre business to be conducted on the
Site by the Pmicipant commencing on or about April 1,2005.
(c) . City"' means the City of San Bernardino.
(d) ;'New lobs" means and refers to an aggregate number of not less thiln one hundred
(i (0) new hourly wage, salary or commissioned employment positions to be created by the
Participant on the Site and, thereafter, maintained, as set forth in Scctioii lOaf this Agreement.
4844-0982-86081
p.i,gend3.5'AgrecnlCnIS-AIl'lCndrocnls'Agmlts-\rncliJ ~()(iJ ,''';-11-15 La ClllilCiK> PartlClrathm Agrccrncnl (~'_'C
Exhibit "A"
(e) "New Job"' means and refers to each of the hourly wage. salary or commissioned
employment position work dl.:scriptions of each or the employees of the Participant whose work
position at the Site is eligible to be included among the New Jobs for the purpose of satisfying
the New Jobs covenant of the Participant set forth in Section lOaf this Agreement.
(I) "Opening Date" means the date on which the Business is opened for retail sales
business on the Site to the general public, which date shall be on or before June 1,2005.
(g) "Permitted Transfer"' means and refers to any of the following types of Transfers
by the Pcfticipant, where the person or entity to which such Transfer is made, expressly assumes
the obligations or the Participant under this Agreement in a written instrument satisfactory to the
Agency:
(I) Any Tra:1sfer of stock or equity of tile Participant that does not change
the management or operational control of the Site or the Business;
(2) Any Transfer of any interest in the Participant, irrespective of the
percentage of ownership, or the Participant's interest in the Site (i) to any other owner of
any interest in the PaI1icipant; or (il) to any affiliate of or other entity related to the
Participant, or (iii) to any other entity in which any holder of an interest (including any
beneficial interest) in the Participant is a manager, a shareholder or member (including a
beneficial participant); aIld
(3) [Intentionally Len. Blank)
(h) "Transfer" means and refers to any of the following:
(1) Any total or panial sale, assignment, conveyance, trust, power, or
transfer in any other mode or form, by the Participant of more than 49% interest (or a
series of such sales, assignments and the like that, in the aggregate, result in a disposition
of marc than a 49'% interest) in this Agreement, the Site or the Business; or
(2) Any total or pm1ial sale, assignment, conveyance, or transfer in any other
mode or form, of or with respect to any interest in the Participant (or a senes of such
"ales, assignments and the like that, in the aggregate, result in a disposition of more than a
4Y% interest); or
(3) Any merger, consolidation, sale or lease of all or substantially all of the
assets of the Participact (or a series of such sales, assignments and the like that, in the
aggregate, result in a disposition of more than a 49% interest).
4844-0'182-86081
2
I' ,_\send.15'A~reemenls.AIl;en<ilHems'Agnms.Amend 20v~()~-I! -1 ~ L.llurac.w Par1:clpdlIVll AEreer.lClll do,
Exhibit "A"
SECTION 3. Parties to the Al!reement.
(a) The parties to this Agreement are the Participant and t;le Agency. The City is not
a party to this Agreement.
(b) The address of the Participant for purposes of this Agreement is 1605 W cst
Olympic Boulevard, Suite if 600, Los Angeles, California 90015. As a condition precedent to the
Agency's obligations under this Agreement. the Participant shall provide the Agency with
satisfactory evidence of the legal fornlation and existence of the Participant and the good
standing of the Participant to transact business within the State of California and to occupy,
possess and/or hold title to the Site and the corporate action authorizing the execution of thi5
Agreement by the persons signin6 below on behalf of the Participant.
(c) The Agency is a public body, corporate and politic, exercismg governmental
functions and powers, and organized ~nd existing under the Community Redev;::]opment Law of
the State of California, Health and Safety Code Section 33000 et seq. The Agency's address is
20 I North 'E' Street. Suite 30 I, San Bernardino, California.
~ECTION 4. Ch::nl!e in Manal!ement or Control of the Particioant--Assil!nment
and Transfer.
U,j The Participant hereby acknowledges that the qualifications and identity of the
Participant are of particular importance to the Agency and that the Agency is relying on the
specific qualifications and identity of the Pm1icipant in entering into this Agreement with the
Participant. As a consequence, Transfers are permitted only as expressly provided in this
Agreement.
(b) Except as expressly permitted in this Agreement, the Participant shall not create
or suffer to be made or created, any Transfer, either voluntarily or by operation of la\\ without
the prior written approval of the Agency, prior to the third anniversary of the Opening Date, other
than a Permitted Transfer. The Participant is not required to give the Agency advance notice of a
Permitted Transfer. Any Transfer made in contravention of this Section 4 shall be voidable at the
election of ,he Agency and, if avoided, shall be deemed to be a default under this Agreement by
the Participant, whether or not the Participant knew of or participated in such Transfer.
(c) For any Transfer, the proposed transferee must satisfactorily demonstrate
succe~ :ful expciience in the owncrship, operation, and management of sales and service
operations comparable in size, quality and volume of sales and service business activity to the
Business. All instruments and other legal documents proposed to effect any Transfer shall be
submitted to the Agency for review, prior to the Transfer, and the written approval or disapproval
of the Agency shan be providcd to the Participant \vithin thirty (30) calendar days of the
Ag'?ncy's receipt of the Participant's request. Agency approval of a Transfer shall not be
unreasonably withheld, delayed or conditioned.
4844-098"-8608.1
3
P \.t\gcll(1as,Agrec:mcnt'--\mcndlnel1l) Agrmb-Amend 200404-11-,5 La Cur~t.i.:o P<.1I11CIPiJlh)1l Agreement J~)C
Exhibit "A"
SECTION 5. Participant Solely Responsible for Other Approvals. The Participant
shall be solely responsible for applying for and obtaining any and all pern1its and approvals that
may be required by the City or any other governmental ~gency with jurisdiction over the Site or
the business operations or the Business, beforc commencement of improvement of any building
or structure on the Site or operation of f.~ Business on the Site. The Participant shall also be
solely responsible for obtaining all necessary consents or approvals required from third-party
property owners or tenants, as m"y be necessary or appropriate.
SECTION 6. [RESERVED - NO TEXn
SECTION 7. Participant Rcpresentatior.s, Warranties and Cnve!lants Re2ardinl?,
Otne!"Retail Department Stores.
(a) For the purpose of satisfying the requirements of Health and Safety Code Section
33426.71 e), to the extent applicable, the Participant hereby represents and warrants to the Agency
that the opening of the Busi;1ess on the Site is not a "relocation" of the Business "within the same
market area", as these terms are defined in California Statutes of 1999, Chapter 462, Section 3.
Ib) The Participo'1t for itself, its successors and assigns herf'by covenants and agrees
that, from the date of this Agreement and continuing until the tenth (10th) anniversary of the
Opening Date, neither the Participant, any successor-in-interest to the Participant, any person
associated with the Participant, nor any entity related to the Participant will establish a Retail
Department Store business within a ten (10) mile radius of the Site.
SECTION 8. Business Operation Covenants of the Participant.
(a) The Participant hereby makes the following representations, covenants and
warranties, as of the date 01' its execution of this Agreement, and hereby acknowledges that the
execution of this Agreement by the Agency is made in material reliance by the Agency on each
such covenant, representation and warranty:
(1) The Participant shall cause the Business to be open for business to the
general public on the Site on or before June 1,2005; and
(2) There are no pending or threatened claims, actions, allegations or
lawsuits of any kind, whether for personal injury, property damage, landlord-tenant
disputes, property taxes or otherwise, that are not covered by insurancc or that expose the
Participant to liability of more than. S on any given claim, action, allegation
or lawsuit, or that could matcrially and advcrsely affect or prevent the pcrfom1ance of any
provision of this Agreement by the Participant, nor to the best of Participant's knowledge,
is there any governmental investigation of any type or nature pending or threatened
against the Participant or any of its principals or relating to the Site, the Business or the
transactions contemplated in this Agreement and the Participant will hold the Agency
harmless from any and all liability, loss, cost and expense resulting from claims arising or
becoming applicable during or as a result of the Participant's possession or ownership of
48-14-0982-8608.1
4
P <J\gt:TltbsJ\gre::rneTII\.Am:ndmel1ls Agmn,.,\mend ::'004,(14. j I \ ~ La Cur;~C;l" Partle,patlon AgrCe!T~(nl Joe
Exhibit "A"
the Site. For purposes of this suhsection, the phrases "to the best of Participant's
kno\\ledgc" or "w Participant' knowledge" shall mean the actual knowledge of Mike
Falkenstein, Senior Vice P,esill,-nt of the Participant, orRon Sahar Azarkman, C.E.O. of
the Paliicipanl.
(b) If after the Business is open for business, the Business ceases to operate for a
continuous period of ninety (90) calendar days, the obligation of the Agency to pay any
Employment Subsidy to the Participant shall ceace for the entire Accounting Year or Accounting
Years in which any part of such extended cessation of operations of the B'lsiness occurs.
SECTION 9. A2:encv Emplovm.~nt Subsidy.
(a) "Site Employment Index" refers to the total amount of local sales and use taxes
paid to the City, under Revenue and Taxation Code Section 7200, et seq. (as may hereafter be
amended, substituted or modified by any successor local sales and use tax law), on the gross
receipts of the Participant from the sale or lease of all tangible personal property from the
Business in each Accounting Year, in excess of Fifty Thousand Doll(!rs ($50,000.00). The Site
Employment Index correlates the amount of sales and use taxes generated and the number of
employees required to generate such sales and use taxes.
(b) "Employment Subsidy" means and refers to the amount derived by multiplying
the Site Employment Index for each Accounting Year by the following percentages for each
respective Accounting Year:
Accountine Year 1 - _50%
Accounting Year 2 - _500'0
Accounting Year ~ - _50%
Accounting Year -+ - _50%
Accounting Year 5 - _50%,
Accounting Year 6 - _50%
Accounting Year 7 - __50%
Accounting Year 8 - _50%
Accounting Year 9 - _)0';;'
Accounting Year 10 -_50%)
[i.e., in Accounting Year I, Site Employment Index (total sales and use tax revenues to
the City from the gross receipts of the Participant - $50,000) x .50 = Employment
Subsidy].
(c) The precise amount of the Employment Subsidy shall be detem1ined by the
Agency for each Accounting Y car by reference to Revenue and Taxation Code Sections 7200 et
seq., sales and use tax remittance advice or information provided to the City by the State Board
of Equalization related to the operation of the Business on the Site by the Participant and the
foregoing percentages. Upon request by the Agency, the Participant shall provid.:: the Agency
with copies of sales and LIse tax collection and remittance accounting records prepared by the
4844-0982-860\(.1 5
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Exhibit "A"
Participant during any Accounting Y car and submitted to the State Board of Equalization. If
Revenue and Taxation Code Sections 7200, et seq., are amended, substituted or modi fied in a
manner that redllccs the total amount of local sales and use taxes paid to the City on the gross
receipts of the Participant frem the sale or lease of all tangible personal property from the
Business on the Site below the levels that would otherwise be allocated and paid to the City
under Revenue and Taxution Code Sections 7200, et seq., in effect on the date of this Agreement,
then the Employment Subsidy shall be computed in each such Accounting Year in accordance
with such amendment, substitution or modification of Revenue and Taxation Code Sections
7200, et sq.
(J) Subject to the express conditions precedent that the Business is open for business
to the general public on the Site on or before June I, 2005, and the sutisfaction of all other tem,s
and conditions of this Agreement bj the Participant, the Agency shall begin annual disbursement
of the Employment Subsidy to the Participant, on the thirtieth (30th) calendar dL1Y fol1O\ving each
of the first through the tenth anniversaries of the Opening Date, in exchange for the New Jobs
creation and maintenance covenant set forth in Section 10.
(e) The Agency shall make p:l}ments under subsection (d) from legal!y available
funds of the Agency. Such pledge of legally available funds is expressly subject to the prior
pledge of such funds to the payment of existing debts, obligations, notes. bonds and other forms
of indebtedness of the Agency and any extensions or refinancings of such existing debt, etc.
Although, one of the dements of the Site Employment Index is the sales and use taxes generated
from the Site, the Agency is not entitled to receive local sales and use tax revenues and, thus,
cannot pay and is not promising to pay sales or use tax revenues to the Participant.
SECTION 10. Covenant of the Participant to Create New .'obs on the Site.
(a) Subject to the terms of this Agreement, the Participant hereby covenants and
agrees to exercise its best efforts to create and, thereafter, maintain New Jobs on the Site, in
exchange for receipt of the Employment Subsidy related to such New Jobs, as follows:
(I) within twelve (12) months following the Opening Date, at least one
hundred (l00) New Job positions shall have been created and be
maintained on the Site; and
(2)
within twenty four (24) months following the Opening Date, an aggregate
of at least one hundred twenty (120~ New Job positions shall have been
created and be maintained on the Site; and
(3)
within thirty six (36) months following the Opening Date, an agb'Tegate of
at least one hundred thirty (130) New Job positions shall have been created
and be maintained on the Site; and
48.4-0%2-8608.1
6
P ',.\gtnJd"AgrO<:CID'.:'!l:s-AmendnJenls'Ag.mls-Am<:nJ ::!w4'04-ll-: 5 La C;.lfa<.:Jl' Part1CI;:'.llIOn Agreewent dOl:
Exhibit "A"
(4) the:-;:after, on each f)f tk ne.\.l seven (7) anniversaries of the Opening Date,
there shall remain a lOtal of. at least. one hundred forty (140) New Job
positions being maintained on the SIte.
(b) An employee is eligible to be classified as holding a New Job position, when each
of the following conditions exist:
( I )
the employee is paid an hourly wage of at least seven and one-half Dollars
(~7.50) per hour or an equivalent salary or commission plus eligibility for
full health benefits if employed by Participant for more than six (6)
months;
(2)
the employee is assigned to work (or is eligible to work) at least One
Thousand Five Hundred Fifty (1,550) hours per year;
(~)
\-'
the employee is based at the Site; and
(4)
the employee started working for the Participant on or after February I,
2005.
(c) Within thirty (30) days of the first anniversary of the Opening Date and,
thereafter, on each of the follov/ing ten (10) anniversaries of the Ope'lir:g Date, the Participant
shall file a written affidavit with the Agency's Executive Director, certifving. under penalty of
peljury under the laws of the State of California. the Participant's compliance v'ith the New Jobs
creation and maintenance covenant set forth in this Section 10. The Pmiicipant's affidavit shall
include a certification that each employee who is claimed by the Participant to have held a New
Job position during the preceding year satisfies the requirements of Section I O(b) and, shall
include appropriately detailed payroll accounting information relating to the total hourly wage
compensation amounts paid to such persons, the total number of hours worked by such persons
and the total number of persons who were recruited, hired or released from employment for each
New Job position. Such annual affidavit need not identify any employee by name, by specific
job description nor by new hire date, and the payroll accounting information may aggregate the
hours worked and wages paid to all persons claimed by the Participant to hold New Job
positions.
(d) The Participant agrees to allow the Agency or it; agents access to inspect the
payroll accounting records of the Participant relating to the New Jobs and the confirmation by the
Agency of the inforn1ation included in each annual affidavit of the Participant, at reasonable
times, upon reasonable prior written notice, and without cost charged by the Participant to the
Agency.
.:844.0982.8608.1
7
PAgendas'Agrcements.t\men(1men:~.Agrml<;-Amefld 20(<4,!)4-ll.15 LI CunCJO PadIClpall<'n Agleemcnl Joe
Exhibit "A"
SECTION II. Particip:mt Covenant Rej!ardin2 Maintenance of the Site and the
!lusincss
(a) The Participant for itself: its successors and assigns hereby covenants and agrees
that from and after the Opening Date, all areas of the Site and the Business subject to public view
(including all other improvements constructed or installed following the Opening Date, including
paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained by the
Pallicipant in good repair and in a neat, clean and orderly condition customary in the Retail
Department Store business, ordinary wear and tear excepted.
(b) If at any time follO\ving the Opening Date, there is an occurrence of an adverse
condition in contravention of the general maintenance standard described in the preceding
paragraph (a "'Maintenance Deficiency"), then the Agency shall notify the Participant in writing
of such Maintenance Deficiency, giving Participant sixty (60) days from receipt of such notice to
cure the i\laintenance Deficiency. If the Participant fails to cure or commence to cure the
Maintenance Deficiency, within the time allowed. any sales or use tax generated from the Site
during the pendency of such Maintenance Deiiciency shall not be counted in determining Site
Employment Index under Section 9. Nothing in this Section 1 I shall be deemed to preclude the
Participant from making any alterations, additions, or other changes to any improvement
(including landscaping) on the Site following the Opening Date. Any such alterations shall
comply with the Redevelopment Plan and applicable development regulations of the City.
SECTION 12. Coyenant of Participant to Payor Cause to Be Paid Property Taxes
on the Site. Tne Pm1icipant he;!)y covenants and agrees to payor cause to be paid, prior to
delinquency, all real property, personal propel1y and possessory interest taxes, if any, assessed
against the Business or the business inventory or operations of the Participant on the Site. The
Participant shall provide the Agency with written evidence of the payment of all such taxes, upon
request orthe Agency's Executive Director.
SECTION 13. Oblh?:ation to Refrain from Discrimination. The Participant
covenants and agrees for itself, its successors, assigns and every successor-in-interest to the
Business or any portion thereof, that there shall be no discrimination against or segregation of
any person, or group of persons, on account of sex, marital status, race, color. religion, creed,
national original or ancestry, in the sale, lease, sublease, transfer, use occupancy, tenure or
enjoyment of the Site or operation of the Business. Further, the Participant, or any person
claiming under or through it, shall nc, establish or permit any such practice or practices of
unlawful discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees on th~ Site or operation of the
Business.
SECTION 14. Form of Nondiscrimination and N.onsC2rCl?:ation Clauses. The
Participant shall refrain from restricting the lease, sublease, rental, transfer, use, occupancy,
tenure or enjojment of the Site (or any portion thereof) on the basis of sex, marital status, race,
color, religion, creed, ancestry or national original of any person, All such deeds, leases or
4R44-0982 -R608 I
8
PAg('nd.ci\A~rt:ernents-Arncnd;ncnt<; ,.4,gmus.Amer.d :l)(l.l04-1 t -l ~ La Cur ;ICJO PartIC1pJ1IOn Agreelllefll doc
Exhibit "A"
contrar;;s pertaining to the Sile or the Business shall contain or be subject 10 substantia:]y the
following nondiscrimination or nonsegregaticn clauses:
(I) INTE1\TIONALL Y LEFT BLANK
(2) [in leases]:
"The lessee herein covenants by and for itself. its successors and assigns, and al
persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions: That thcre shall bc no discriminatio:l
against or segregation of any person or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or ancestry, in the
leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of
the land herein lease, nor shall lessee itself, or any person claiming under or
through it, establish or pennit such practice or practices of discrimmation or
segregation with reference to the selection, location, number or occupancy of
tenants, lessees, suhlessees, tenants or vendees in thf' land herein lease."
(3) [in material contracts]:
"There shall be no discrimination against or segregation of, any person or group of
persons on account of sex, marital status, race, color, religion, creed, national
origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy,
tenure or enjoY111ent of the land, nor shall the transferee itself or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to th...::;election, location, number,
use or occupancy of tenants, lessees, subtenants, subiessees or vendees of the
land,"
SECTIO~ 15. [RESERVED - NO TEXT.]
SECTION 16. Dcfaults--General. Failure or delay by a paliv to perfonn any tenn or
provision of this Agreement constitutes a default under this AgreemeJll. The party in default
must immediately commence to cure, correct, or remedy such default, and shall diligently
complete such cure, correction or remedy promptly upon r('ceipt of written notice of such defa,Ilt.
The party claiming that a default or breach exists shall give wntten notice of default, specifying
the claimed default. Except as required to protect against further damage, the injured party may
not institute proceedings against the party in default, until thirty (30) days aller giving such
notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default.
SECTION 17. Bankruptcy aqd Insolvencv of Participant. If the Part:cipant files for
bankruptcy protection or reorganization or becomes the subject of any proceedings under the
bankruptcy laws of the United States, or the Participant becomes insolvent, or a receiver is
.B44-0982-8G081
9
P Ag.end.a~\J,gree:I1eI~ls-,A,ITk."ndmt.:nts Agmlls-:\n1C:nd 2Cf}41)04 : 1-15 L:; Cura';d0 P...rlK,p3.110n Agreement Juc
Exhibit "A"
appointed for the Participant under state or fedefal law, the Participant shall be in material default
of this Agreement.
SECTION 18. Institution of Legal Ac~ions. Subject to the default provisions of
Section 16, any party may institute legal action to cure, correct or remedy any default, to recover
damages for any default, or to obtain any other remedy consistent witJ, the purposes of this
Agreement. Any legal action, initiated pursuant to this Agreement, or ot'lerwise, with respect to
its subject matter, must be instituted ill the Sup~rior Court of the County of San Bernardino, San
Bernardino District, State of Cali fornia, or in the United States District Court for the Cemral
District of California.
SECTION 19. APplicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreemtnt.
SECTION 20. Ri!!.hts and Remedies ar~ Cumulative. Except as otherwise expressly
stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise
by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the
same or different times, of any other rights or remedies for the same default or any other default
by any other party.
SECTION 21. Inaction Not a \Vaiver of Default. Any failure or delay by a party in
asserting any of its rights or remedies regarding any default shall not operate as a waiver of any
dtfault or of any such rights or remedies, or deprive any party of its right to institute and maintain
any actians or proceedings that it may deem necessary to protect, assert or enforce any such
rights or remedies. Waiver of any default under this Agreement must be expressly set forth in a
written document executed by the party asserting the default being waived and deliven;d to the
party asserted to be in default.
SECTION 22. Notices, Demands and Communications Between the Parties.
I'\otices, demands and communications between the Agency and the Participant, as allowed or
required by this Agreement, shall be in writing and shall be deemed to be duly given when
personally delivered or, if mailed, upon receipt or rejection. If notice is given by mailing, it shall
be sent by registered or certified mail, postage prepaid, return receipt requested, and properly
;lddressed to the principal office of the party, as designated in Section 3. Such written notices,
demands and communications may be sent in the same manner to such other addresses as either
party may from time to time desib'11ate in wliting to the other.
SECTION 23. [RESERVED - NO TEXT
SECTION 24. Warranty Ag,ainst Payment of COllsideratio:n for A!!.reement. The
Participant hereby walTants that it has not paid or given, and will not payor give, any third-party
money or other consideration for obtaining this Agreement. For the purpose of this Section 24,
the term "third-party" shall not include persons to whom fees w<..re paid for professional services,
if rendered by attorneys, financial consultants, accountants, engineers, architects and the like,
when such fees are considered necessary by the Participant.
4844.0982-8608 I 10
P\A~ffidas\Agreements-Amcr,dment~ AglTTJls-Amend :(}(l4'04-11.1 S La ClLrac3u Pdl1i~';pallon Agreement doc
Exhibit "A"
SECTION 25. N('n-Llubilih of Aj!cncy Officials or Emplovees. No member,
official, employee, agent, consultant or attorney of the Agency shall be personally liable to the
Participant, or any successor-in-interest of either of them, upon any default or breach by the
Agency or for any amount becominf' due to the Participalll or to its successor or on any
obligations arising under this Agreement.
SECTION 26. ill:~9::_JQght to Terminate Upon FiJin!! of Le2al ChalIen2e.
paJ1jcipant hereby acknowledges that the Agency is a "public entity" and/or a "public agency" ao.
defined under applicable California la\\!. Therefore, the Agency must satisfy the requirements of
certain California statutes relating to the actions of public entities, including, without limitation,
the C<l.1ifornia Environmental Quality Act ("CEQA"). Also, as a public body, the Agency's
action in approving this Agreement may be subject to proceedings to invalidate the Agreement.
The Participant hereby assumes the risk of delays and damages that may result to the Participant
from any such third-pa11y legal actions related to the Agency's approval of this Agreement or the
pursuit of activities contemplated by this Agreement, filed within two hundred fifteen (215) days
of the Agency's formal approval of this Agreement, even in the event that an error, omission or
abuse of discretion by the Agency is determined to have occurred. If a third-party files such a
legal action regarding the Agency" s approval of this Agreement or the pursuit of activities
contemplated by this Agreement, the Agency may tern1mate this Agreement on 30 days written
notice to the Participant of the Agency's intent to terminate this Agreement, referencing this
Section 26, without any further obligation to perform the tern1S of this Agreement or any liability
to the Participant resulting from such termination, unless the Participant unconditionally agrees
to indemnify and defend the Agency against such third-party legal action, as provided herein.
\Vithin 30 days of receipt of the Agency's notice of intent to tenninate this Agreement, as
provided in the preceding sentence, the Pm1icipant may offer to defend the Agency in the third-
party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions,
attorney fee awards, expert witness and consultant fees, and the expenses of any and all financial
or perfOlmance obligations resulting from the disposition of the legal action. Any such offer
from the Participant must be in writing and in a forn1 reasonably acceptable to the Agency. If the
Agency accepts such an offer by the Participant, as provided for herein, the Agency shall
reasonably cooperate with the Participant in the defense of the legal action.
SECTION 27. A!!encv Approvals. Approvals required trom the Agency under this
Agreement shall not be unreasonably withheld. conditioned or delayed and approval or
disapproval shall be given within the time set forth in the Schedule of Performance, or as set
forth in this Agreement or, if no sp.xific time is set forth for such approval, within thirty (30)
days. If no disapproval is given within the time stated therefore, the item in question shall
conclusively be deemed approved.
SECTION 28. Indemnification of Al.!encv bv Participant. The Participant hereby
agrees to defend, indemnify and hold the Agency, its members, officials, employees, agents,
consultants and attorneys, harmless from and against all damages, judgments, costs, expenses,
and fees inclUding attorney" s fees, expert witness and consultant fees and expenses incurred by
~8~4-0()82-860S I
11
P AgtndlS\A~rCt:mcnts.Alnel\dlllefl\sAgrmt,-,\rl"k:nd ~O(14,Q':.II.1 ~ l.:l Curacao Pa;1iClpatim, Agreerrlt'nl (1)1(
Exhibit "A"
the Agency as a result of any alleged or :lctual act or omission of the Participant in performi:1g it.s
ohligations under this Abrrecment.
SECTION 29. ~o Partnership or Joint Venture. Nothing in this Agreement. nor any
aCLS of the parties heretu, shall be deemed or construed by the parties hereto, or by any third
person, to create the relationship of principal and agent. or of partnership, or of joint venture, or
of any association between any of the parties to this Agi :::cment.
SECTION 30. Attornev's Fee~. If any party hereto files any action or brings any action
or proceeding against the other arising out of this Agreement, the prevailing party in any such
actiun or proceeding shall be entitled to recover, as an clement of its costs of suit and not as
d,~mages, its reasonable attorney's fees, as determined by the Court in such action or proceeding
or in a separate action or proceeding brought to recover such attorney's fees. For the purposes of
this Agreement, the phrase "reasonable attorney's fees" includes the salary, wages, benefits and
overhead of the City Attorney of the City of San Bernardino and members of his staff.
SECTION 31. Severabilitv. If any clause, sentence or any other portion of this
Agreement becomes invalid, void or unenforceable for any reason, or is held by any court of
competent jurisdiction to be invalid, void or unenforceable, the remaining portions of this
Agreement shall remain in full force and effect, provided the resulting agreement preserves the
material effect of thIS Agreement.
SECTION 32. Attachments. This Agreement includes 18 pages and one (1)
attachment that constitute the entire understanding and agreement between the parties.
SE~TION 33. Amendment of Aj!recment. This Agreement may only be amended,
modified, revised or changed by written a!:,'Teement executed by both of the parties.
SECTION 34. Date of Execution of A2reement. This Agreement is dated as of
November __, 2004, for purposes of reference and convenience. The terms "date of
execution of this Agreement" or "date of this Agreement," and the like, refer to the date on which
lhis Agreement is approved by the goveming board of the Agency. This Agreement shall be of
no force or effect as against the Agency, until it is fornlally approved by tl1 Community
Development Commission of the City of San Bernardino.
SECTION 35. Execution in Counterpart Ori2inals. This Agreement may be
executed by the parties in counterparts and when each such counterpart is delivered by the
parties, this Agreement shall be deemed to be fully executed and in effect.
4844-0932-8608.1
12
P Agcndas'.Agrc':r'1C'llIS Af':1\:nJmenls.A-;',TIts-An-.end 2004,04- \ I-I:' La CWJ.(.:;j{J Panicip,llivr \lpeemcm doc
Exhibit "A"
IN WITNESS V'HEREOF, the Agency and the Participal1t, by and through th~ir u'll v
authorized representatives' signatures below, hereby execute this Agreement, as of the dates set
f0rth below:
PARTIClrANT
La Curacao
Dated:
By:
Dated:
By:
AGENCY
Redevelopment Agency of the City
of San Bernardino
Dated:
By:
Agency Chairperson
APPROVED AS TO FORM:
Agency Counsel
4344-0982-8603,1
13
P \A.gendas\Agreemems-AmmJments\Agrrrts-Ar.:md 2())4\/)4-11-15 La ClII<lC30 PJJ1lCipation Agreemml doc
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
November 17, 2004
TO:
Wasana Chantha, Acting Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2004-372
At the Mayor and Common Council meeting of November 15,2004, the City of San Bernardino
adopted Resolution 2004-372 - Resolution approving a certain Redevelopment Cooperation and
Financing Agreement between the Redevelopment Agency of the City of San Bernardino and the
City of San Bernardino, California (La Curacao, Inc. - Redevelopment Cooperation and
Financing Agreement).
Attached is one (1) original agreement with three (3) signature pages. Please obtain signatures in
the appropriate location and return one original agreement to the City Clerk's Office as soon as
possible, to my attention.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
edge receipt of the above mentioned documents.
Signed:
Date:
\q/Jm4
Please sign and return
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
INTER-OFFICE MEMORANDUM
TO:
Michelle Taylor, Senior Secretary, City Clerk's Office
FROM:
asana A. Chantha, Secretary
SUBJECT:
Executed Document
DATE:
November 29, 2004
Enclosed is the fully executed Agreement pertaining to the following resolution:
CDC/2004-372
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN
REDEVELOPMENT COOPERATION AND FINANCING
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO AND THE CITY OF SAN
BERNARDINO, CALIFORNIA (La Curacao, Inc., - Redevelopment
Cooperation and Financing Agreement)
Should you have any questions, I can be reached at (909) 663-1044.
Thank you.
Enclosure
cc: Barbara Lindseth (with Original Executed Agreement)
Fred Wilson (with Original Executed Agreement)
Gary Van Osdel (with Copy of Agreement)
Mike Trout (with Copy of Agreement)
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): I HS- ~4 Item #
Vote: Ayes ,-(, Nays '\
Change to motion to amend original documents 0
fL4 I t:\
Resolution #
?trJ\- 3\.::L
Abstain -E:7 Absent -..e--
Companion Resolutions ecx.1 2(5::1\ -4 (', C(X__''Z<<A-4~
Null/Void After: days /
Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
Date Sent to Mayor: I\-\~-t>q
Date of Mayor's Sib'1lature: 1(- \'"" c/'t
Date of Clerk/CDC Signature: \ \~ I '\ -<::,~
Reso, Log Updated: g--
Seal Impressed: -B
Date Memo/Letter Sent for Signature:
I st Reminder Letter Sent:
i 1- i ,- 04 Date Returned: i \.. 30 u q Not Returned: 0
2nd Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes~
Yes
Yes
Yes
Yes
~
No By
No.../ By
No ---.L... By
No ;/BX_
No_ By_
Copies Distributed to:
Animal Control 0 EDA ff Information Services 0
City Administrator 0 Facilities 0 Parks & Recreation 0
City Attorney 0 Finance 0 Police Department 0
Code Compliance 0 Fire Department 0 Public Services 0
Development Services 0 Human Resources 0 Water Department 0
Others: '2-
Notes:
Ready to File: _
Date:
Revised 12/18/03
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): i\-IS--c.Y'\ Item #
Vote: Ayes \-(., Nays 'I
Change to motion to amend original documents 0
f2A. \ c.. Resolution # Coc.12004 ~ 4 f"j
Abstain,.g- Absent G-
Companion Resolutions ~ 7(1)'\",,\(, 2 ay'-I ~ 5(:::L
NulVVoid After: days /
Resolution # On Attachments: 0 Note on Resolution of attachment stored separately: 0
PUBLISH 0
POST 0
RECORD W/COUNTY 0
By:
Date Sent to Mayor: ll- l b -oq
Date of Mayor's Signature:
Date of Clerk/CDC Signature:
Reso. Log Updated:
Seal Impressed:
a-
o
Date Memo/Letter Sent for Signature:
I st Reminder Letter Sent:
Date Returned:
2nd Reminder Letter Sent:
Not Returned: 0
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes /' No By
Yes No .---- By
Yes No .--- By
Yes No /" By
Yes No/' By_
Copies Distributed to:
Animal Control 0
City Administrator 0
City Attorney 0
Code Compliance 0
Development Services 0
Others:
EDA W Information Services 0
Facilities 0 Parks & Recreation 0
Finance 0 Police Department 0
Fire Department 0 Public Services 0
Human Resources 0 Water Department 0
l
Notes:
i
I
R"dy to F;",i
I J
0"'(" f1/C il
I I
Revised 12/18/03
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
November 18, 2004
TO:
Wasana Chantha, Acting Secretary
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution CDC/2004-47
At the Mayor and Common Council meeting of November 15,2004, the City of San Bernardino
adopted Resolution CDC/2004-47 - Resolution approving a certain 2004 Redevelopment
Participation Agreement between the Redevelopment Agency of the City of San Bernardino and
La Curacao, a California Corporation.
Attached is one (1) original agreement with three signature pages. Please obtain signatures in the
appropriate location and return one original agreement to the City Clerk's Office as soon as
possible, to my attention.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
~ge receipt of the above mentioned documents.
\
Signed:
Please sign and return
Date:
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
RFC-~\/;~'h, C:'i \, 1._\
INTER-OFFICE MEMORANDUM
.04 7r; ~~ 1 :'),1
TO:
Eileen Gomez, Senior Secret
FROM:
Wasana A. Chantha, Secretary .
SUBJECT:
Executed Document
DATE:
December 27,2004
Enclosed is the fully executed Agreement pertaining to the following resolution:
CDC/2004-47
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
A CERTAIN 2004 REDEVELOPMENT PARTICIPATION
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO AND LA CURACAO, A
CALIFORNIA CORPORATION
Should you have any questions, I can be reached at (909) 663-1044.
Thank you.
Enclosure
cc: Barbara Lindseth (with Original Executed Agreement)
Gary Van Osdel (with Copy of Agreement)
Mike Trout (with Copy of Agreement)