HomeMy WebLinkAboutR36-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Gary Van Osdel
Executive Director
SUBJECT:
CATELLUS-REDEVELOPMENT
PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE
AGREEMENT (MT. VERNON
CORRIDOR REDEVELOPMENT
PROJECT A~ _________
DATE: December 3,2003
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Svnopsis of Previous Commission/CouncUlCommitlee Actlon(s):
On November 20, 2003, Redevelopment Committee Members Anderson, Suarez and Estrada unanimously voted to
recommend that the Community Development Commission consider this action for approval.
Recommended Motlon(s):
(Community Develonment Commission)
MOTION:
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE THE REDEVELOPMENT PROJECT STUDY AGREEMENT FOR PROPERTY
ACQUISITION AND REDEVELOPMENT ASSISTANCE WITH CATELLUS COMMERCIAL
GROUP, LLC (MT. VERNON CORRIDOR REDEVELOPMENT PROJECT AREA)
("AGREEMENT")
Contact Person(s):
Project Area(s)
Gary Van Osde!
Phone:
(909) 663- 1044
3rd
Mt. Vernon Corridor
Ward(s):
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map{s) 0 Letters
FUNDING REQUIREMENTS Amount: $
N/A
Source:
N/A
SIGNATURE:
N/A
Commission/Conncil Notes:
P:\Agcndas\Comm Dev Commission\CDC 2003\03-12-15 CaleUus RPS.doc
COMMISSION MEETING AGENDA
Meeting Date: 12115/2003
Agenda Item Number: RJ ~
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
Catellus - Redevelopment Project Studv and Redevelopment Assistance Aereement
(M" Vernon Corridor Redevelopment Project Area)
BACKGROUND:
On May 13, 2003, the Agency was approached by the Catellus Commercial Group, LLC (Catellus)
regarding their desire to jointly pursue acquisition of approximately 90 acres of County Flood Control
property located on Orange Show Road, west of the Auto Plaza (the "Property"). Catellus'intended
use of the property would be primarily light industrial.
On May 22, 2003, the Redevelopment Committee voted to recommend to the Community
Development Commission that the Agency be authorized to negotiate the purchase of the Property.
On June 2, 2003, the Community Development Commission authorized the Executive Director to
initiate negotiations with Ken Miller, Director of the County's Flood Control District, relative to
acquisition of the Property.
On July 23, 2003, the Agency Executive Director, together with Agency Special Counsel, met with
Ken Miller, regarding the possibilities for the Agency to acquire the Property. According to Mr.
Miller, upon receipt of a letter from the Executive Director confirming the Agency's interest in
pursuing acquisition of the Property, he would proceed to have the Property appraised and would,
subsequent to receipt of the appraisal, request the Board of Supervisors to declare the Property
surplus.
On July 28, 2003, a letter confirming the Agency's intent with regard to the Property was mailed to
Ken Miller (see Exhibit "A").
On October 30, 2003, at a meeting with Ken Miller regarding other flood control issues, Mr. Miller
indicated that the process leading to the Board of Supervisors declaring the Property as surplus, had
been initiated.
CURRENT ISSUE:
In as much as in the near future the Board of Supervisors may be declaring the Property as surplus it
is appropriate at this time to memorialize the Agency's relationship with Catellus as it relates to the
acquisition of the Property.
ENVIRONMENTAL IMPACT:
None.
P:\Agendas\Comm Dev Conunission\CDC 2003\03.\2.15 Catellus RPS.doe
COMMISSION MEETING AGENDA
Meeting Date: 12/15/2003
Agenda Item Number:
KJ&
Economic Development Agency Staff Report
Catellus RPS and RAA
Page 2
FISCAL IMPACT:
If the Property is declared surplus and the Agency, as a public entity, is given the opportunity to
acquire same, all costs related to acquisition would be borne by Catellus.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
P:\Ascndu\Conun Dev Commission\COC 2003\03-12-15 CatcUus RPS.doe
COMMISSION MEETING AGENDA
Meeting Date: 12115/2003
Agenda Item Number: J~.J(j
EXHIBIT" A"
City of San Bernardin<
ECONOMIC DEVELOPMENT AGENCl
Redevelopment. Community o-topmsnt - HousIng - Business: RecroItmen~ Retention, Rev/taJlzation . Main Street. tnc.
*
July 28, 2003
Ken Miller, Director
San BefI1llfdino County Flood Control District
825 East 3 rd Street
San Bernardino, CA 92410
Dear Ken:
Thank you very much for meeting with Mr. Sabo and myse~ast week to discuss the
possibilities of acquiriIlg surplus properties owned by the Flood Control DiIl.trict within
the City of San Bernardino. .
. .'
The purpose of this letter is to confirm that.the Redevelopment Agency of the City of San.
Bernardino is interested. in pursuing the acquisition of approxiinately 90. acres of COunty~...;
Flood Control property located on Orange Show Road west of the Aufo I'lazaiIifuecities.
of San Bernardino and Colton. For your information, the Mayor and Common Council,
acting as the Community Development Commission, has authorized me to act on their
behalf in negotiating the purchase of such property. .
It is my understanding that pursuant to .receipt of this Letter, it is your intent to haVe the
subject property appraised and to subsequently ask the Board of Supervisor to declare the ~
property surplus. . - .-
If there are any actions that I should be taking at this time in regard to this matter, pJease
advise. .
cc: Pat Cavanagh, Catellus
Tim Sabo, Agency Special Counsel
;
201 North EStreet Suite301-San BemardiIlO, Caftfomia 92401-1507-(909) 663.1044 -Fax(909) 888-9413
WlUlUC'0nh4:.,"~nr~... ^""
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RESOLUTION NO.
2
3
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT
STUDY AGREEMENT FOR PROPERTY ACQUISITION AND
REDEVELOPMENT ASSISTANCE WITH CATELLUS COMMERCIAL
GROUP, LLC (MT. VERNON CORRIDOR REDEVELOPMENT
PROJECT AREA) ("AGREEMENT")
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WHEREAS, the Agency intends to acquire a portion of certain properties and owned by
County of San Bernardino as generally depicted in Exhibit "A" (the "County Property") a
portion of which is located with the boundaries of the City of San Bernardino; and
WHEREAS, a portion of the County Property is situated within the Mt. Vernon Corridor
Redevelopment Project Area, and a portion within the City of Colton; and
WHEREAS, the Agency is prepared to consider and study the provision of certain
redevelopment assistance to Catellus Commercial Group, LLC (the "Developer") to facilitate
the assemblage of the City of San Bernardino portions of the County Property into developable
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parcels of land so as to foster the community economic development goals and objectives of the
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City of San Bernardino (the "City") as the same relate to the Mt. Vernon Corridor
Redevelopment Project Area which the Agency has designated for such study purposes, the land
included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "B"
(the "Study Area") for such study; and
WHEREAS, the Study Area includes the County Property within the City of San
Bernardino and the County Property within the City of Colton; and
WHEREAS, the Agency intends to initiate certain additional studies and proposals to
address a number of issues of community concern in the Study Area relating to elimination and
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prevention of the spread of blight from the Study Area; and
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WHEREAS, the Developer is qualified to assist the Agency to undertake the study of
specific proposals and plans for a coordinated and economically sustainable redevelopment
project in the Study Area, which will require specific study, evaluation, and planning by the
City and Agency, as applicable, of appropriate and feasible community redevelopment program
alternatives; and
WHEREAS, following the Effective Date (as defmed in the Agreement), the Developer
may in its sole discretion, but under no obligation to do so, acquire any or all of the County
Property in the Study Area on terms which are economically feasible for the Developer, and
which are also acceptable to all interested persons; and
WHEREAS, the Developer and the Agency believe it is appropriate for the Agency, in
consultation with the Developer, to undertake certain redevelopment studies and to incur certain
costs as part of a program for the study of feasible redevelopment programs for the Study Area,
subject to the terms and conditions as set forth in the Agreement.
WHEREAS, in accordance with the provisions of the California Enviromnental Quality
Act (CEQA), a redevelopment study agreement is exempt from the provisions of CEQA.
NOW, TIlEREFORE, TIlE COMMUNITY DEVELOPMENT COMMISSION OF TIlE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
Section 1. The Community Development Commission hereby authorizes and
approves the Agreement by and between the Agency and Developer in the form as presented at
the meeting of the Commission at which this Resolution is adopted and hereby authorizes the
Executive Director to execute the Agreement on behalf of the Agency together with such
technical and conforming changes as recommended by the Executive Director and approved by
the Agency Counsel.
Section 2. The Resolution shall become effective immediately upon its adoption.
III
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE THE REDEVELOPMENT PROJECT
STUDY AGREEMENT FOR PROPERTY ACQUISITION AND
REDEVELOPMENT ASSISTANCE WIm CATELLUS COMMERCIAL
GROUP, LLC (MT. VERNON CORRIDOR REDEVELOPMENT
PROJECT AREA) ("AGREEMENT")
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
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Conununity Development Conunission of the City of San Bernardino at a
meeting
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thereof, held on the
day of
, 2003, by the following vote to wit:
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Conunission Members:
Abstain
Absent
Aves
Navs
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ESTRADA
LONGVILLE
12 MCGINNIS
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DERRY
SUAREZ
ANDERSON
MC CAMMACK
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Secretary
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The foregoing resolution is hereby approved this
day of
,2003.
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Judith Valles, Chairperson
Conununity Development Commission
of the City of San Bernardino
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24 By:
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CfTY LIMITS
i~-'
PORTION OF
MT. VERNON CORRIDOR
RDA PROJEcr
C!J. .....~
"'1
NottoS<:ale
EXHIBIT "A" COUNTY AREA
CITY LIMITS
---
PORTION OF
MT. VERNON CORRIDOR
RDA PROJEcr
(;)
Not to Scale
EXHIBIT "B" STUDY AREA
THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
REDEVELOPMENT PROJECT STUDY AND
REDEVELOPMENT ASSISTANCE AGREEMENT
(CATELLUS COMMERCIAL GROUP, LLC:
MT. VERNON CORRIDOR REDEVELOPMENT PROJECT AREA)
REDEVELOPMENT PROJECT STUDY AND REDEVELOPMENT ASSISTANCE
AGREEMENT, is dated as of , 2003 (the "Agreement") and is entered into
by and between CATELLUS COMMERCIAL GROUP, LLC, a (the
"Developer") and the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a body corporate and politic, (the "Agency") in light of the facts set forth in the
following recital paragraphs:
RECITALS
As of the "Effective Date," as this term is defined below, the Agency intends to acquire
certain portions of properties from the County of San Bernardino as generally depicted in Exhibit
"A" a portion of which is located within the City of San Bernardino (the "County Property"); and
A portion of the County Property is situated in an area which is referred to as the "Mt.
Vernon Corridor Redevelopment Project Area," and a portion within the City of Colton; and
The Agency is prepared to consider and study the provision of certain redevelopment
assistance to the Developer to facilitate the assemblage of the County Property into developable
parcels of land so as to foster the community economic development goals and objectives of the
City of San Bernardino (the "City") as the same relate to the Mt. Vernon Corridor
Redevelopment Plan Area and the Agency has designated for such study purposes, the land
included within the perimeters of the tract marked by the boundary lines depicted in Exhibit "B"
(the "Study Area") for such study; and
The Study Area includes the County Property located within the City of San Bernardino
and the County Property located within the City of Colton; and
The Agency intends to initiate certain additional studies and proposals to address a
number of issues of community concern in the Study Area relating to elimination and prevention
ofthe spread of blight from the Study Area; and
The Developer is qualified to assist the Agency to undertake the study of specific
proposals and plans for a coordinated and economically sustainable redevelopment project in the
Study Area, which will require specific study, evaluation, and planning by the City and Agency,
as applicable, of appropriate and feasible community redevelopment program alternatives; and
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Following the Effective Date, defmed below, the Developer may at its sole discretion, but
under no obligation to do so, acquire any or all of the County Property within the Study Area on
terms which are economically feasible for the Developer, and are acceptable to all interested
persons; and
The Developer and the Agency believe it is appropriate for the Agency, in consultation
with the Developer to undertake certain redevelopment studies and to incur certain costs, as part
of a program for the study of feasible redevelopment programs for the County Property within
the Study Area, subject to the terms and conditions as set forth below.
NOW THEREFOR, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY
AGREE, AS FOLLOWS:
I. Develooer Acknowledl!ements and Term of Al!reement.
a. The Developer hereby acknowledges and agrees that no proVISIOn of this
Agreement shall be deemed to be an offer by the Agency nor an acceptance by the Agency of
any offer or proposal from the Developer to convey any interest in the County Property to the
Developer. Any studies relating to the Study Area, the County Property, and the Project (as
defmed below) that may hereafter be undertaken by the Developer, in its sole discretion shall be
the sole responsibility of the Developer and shall not be deemed to be undertaken for the benefit
of the Agency and/or the City. The Developer acknowledges that the Agency does not have the
jurisdictional power or authority to acquire any portion of the County Property that is located
outside the municipal boundaries of the City of San Bernardino and, therefore, the Developer
will be solely responsible for the acquisition of any County Property located outside of the
jurisdiction of the Agency.
b. The qualifications and identity of the Developer and its principals are of particular
concern to the Agency. The Agency relied on these qualifications and identity in entering into
this Agreement with the Developer. During the term of this Agreement, no voluntary or
involuntary successor-in-interest of the Developer shall acquire any right or power under this
Agreement. The Developer shall not assign all or any part of this Agreement, or any rights
hereunder, without the prior written approval of the Agency Executive Director, which the
Agency Executive Director may grant or refuse in his or her sole and absolute discretion.
c. The Developer shall promptly notify the Agency in writing of any and all changes
whatsoever in the identity of the business entities and individuals either comprising or in control
of the Developer, as well as any and all changes in the interest or the degree of control of the
Developer by any such party, of which information the Developer or any of its partners or
officers have been notified or may otherwise have knowledge or information. Upon the
occurrence of any significant or material change, whether voluntary or involuntary, in
membership, ownership, management or control of the Developer (other than such changes
occasioned by the death or incapacity of any individual) that has not been approved in writing by
the Agency Executive Director, prior to the time of such change, the Agency may terminate this
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Agreement by serving written notice of such termination, referencing this Section, on the
Developer.
d. This Agreement shall automatically terminate, without further notice or action,
and be of no further force or effect twelve (12) months following the Effective Date (defined
below), unless prior to that time:
(1) the parties execute the Project DDA, as described below, which will
include, without limitation, other relevant community redevelopment covenants
acceptable to the Agency and such other terms and conditions mutually
acceptable to the parties, in which case this Agreement shall terminate on the
effective date of the Project DDA; or,
(2) the parties each agree to extend the term of this Agreement in writing to a
specific date, subject to the Agency first making a finding in its sole discretion
that satisfactory progress is being made to complete the activities to be performed
by the Developer set forth in Section 3; or
(3) a party terminates this Agreement as provided under Section 20 or Section
21, as applicable.
2. The Proiect.
Subject to the terms and conditions of this Agreement, the Developer shall take all
reasonable actions required or necessary for determining the feasibility of the acquisition and
redevelopment of the lands included in the Study Area, either in whole or in part, and for
undertaking ninety (90) acres of light industrial development (the "Project").
3. Effective Date.
a. Conditions Precedent to Effective Date. The provisions of this Agreement shall be
operative from and after the Effective Date, which shall be the date that Catellus delivers a
written notice to the Agency ("Notice to Proceed") that the following three (3) conditions
precedent have been met in the sole discretion of the Developer (the "Effective Date"):
(1) that the appraisal for the County Property, to be conducted by the County
of San Bernardino, sets forth a reasonable purchase price for the County Property
which is based upon the actual site restraints, physical conditions and current
zoning of the County Property;
(2) that the necessary zone changes and general plan amendments can likely
be obtained from the City of San Bernardino for the County Property and from the
City of Colton for the property adjacent thereto in the City of Colton; and
(3) that the Developer is cognizant of the CEQA process that must be adhered
to by the City of San Bernardino as the lead agency in connection with any zone
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change, general plan amendment and development proposal for the County
Property, including that the action of the City in approving any zone change or
general plan amendment may be subject to proceedings to invalidate such change
and/or amendment.
In the event the Developer has not delivered the Notice to Proceed to the Agency within
180 days following the approval of this Agreement by the Agency, this Agreement shall
automatically terminate without any further action of the parties.
The Developer acknowledges and agrees that neither the Agency nor the City have made
any representation or statement regarding the probability that any zone change and general plan
amendment for the County Property will be approved by either the Planning Commission of the
City or the Mayor and Common Council of the City. By the execution and approval of this
Agreement, the Developer further acknowledges and agrees that neither the City nor the Agency
shall be held liable or responsible in any manner for the fmal discretionary decision as to the
eventual consideration of a zone change and general plan amendment for the County Property by
either the Planning Commission of the City or the Mayor and Common Council of the City and
that this Agreement shall not be construed to have pre-committed, pre-approved or guaranteed
the approval by the Planning Commission or the Council for such requested zone changes and
general plan amendments.
4. Nel!otjatjon Period. Project Study and Project Study Costs.
a. The rights and duties of the parties established by this Agreement shall commence
upon the Effective Date. This Agreement will continue in effect until a date which is twelve (12)
months from the Effective Date unless such date shall have been first extended as authorized
under Section l.d.(2). Such time period during which this Agreement shall be in effect
(including any extensions of time approved by the Agency) is referred to as the "Negotiation
Period" .
b. Within sixty (60) days following the Effective Date, the Agency and the
Developer shall initiate the preparation of a feasibility study for the redevelopment of the Project
proposed by the Developer (the "Project Study"). The Agency may retain the services, but is
under no obligation to do so, of a firm of community redevelopment planning and environmental
consultants to assist in the preparation of the various investigations, surveys and reports
appropriate in connection with the Project Study and the evaluation of the Project proposed by
the Developer.
On a best efforts basis, the Agency and Developer shall cause the initial phase of the
Project Study as evidenced by the completion of an "Initial Study" as this term is defined under
the California Environmental Quality Act ("CEQA") to be completed for the Project within one
hundred and twenty (120) days following the Effective Date. The Initial Study may be prepared
by either the Agency or the City as the "lead agency" as this term is defmed in CEQA.
Thereafter, provided the Developer has completed the studies described in Section 3.h.(A) and
(B) in sufficient detail to be mutually acceptable to the Developer and the Agency, the Agency
and Developer shall on a best efforts basis, cause a draft environmental impact document for the
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Project to be circulated for public comment and review within sixty (60) days thereafter. Subject
to the privilege of either party to suspend the Project Study prior to its completion as set forth in
Section 19 each of the parties presently believes that the Project Study can be completed,
including without limitation, the conduct of a public hearing on a final environmental impact
document for the Project, within six (6) months following the Effective Date.
c. The Developer may modify the description of the Project at any time; provided
however, that substantial modifications of the Project shall:
(I) be subject to the acceptance and approval of the Agency which approval
shall not be unreasonably withheld, conditioned or delayed;
(2) depending on the nature of such a modification, a suitable modification of
the environmental and other elements of the Project Study as modified, may also
be indicated.
The Agency may request that the Developer consider modifications to the description of
the Project from time-to-time. Each such modification shall be subject to the reasonable
approval ofthe Developer.
d. The Agency shall on a best efforts basis during the course of the Project Study
consider the specific terms and conditions of redevelopment assistance which the Developer may
propose to include in the Project DDA; provided however the Agency reserves the sole and
absolute discretion to accept, reject or modify any such proposed term or condition to the Project
DDA in its sole discretion.
e. Notwithstanding any other provision of this Agreement to the contrary and
provided the Agency is not in default, the Agency reserves the sole and absolute discretion to
suspend the Project Study and terminate this Agreement at any time, in its sole and absolute
discretion subject to the terms of Section 20.b.
f. During the course of the Project Study, the Agency shall pay for any "Project
Study Costs" and expenses of third party consultants who are engaged by the Agency under
written contract to undertake one or more elements of the Project Study. Project Study Costs do
not include third party costs incurred by the Developer in connection with the preparation or
submission of any information relating to the Project on which any element of the Project Study
may be based, including civil engineering expenses, architectural fees, accounting fees and the
like. Each party shall bear its own legal fees and costs in connection with the Project Study.
g. All third-party consultants retained by the Agency to prepare any study or
document as part of the Project Study shall be subject to the sole control and direction of the
Agency. The work product of any such person shall be the property of the Agency and the
Agency shall have the right to use and republish such work product for any purpose.
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h. Subject to the terms and conditions of this Agreement, the Developer and the
Agency shall undertake an economic feasibility study of the Project as part of the Project Study
consisting of the elements as set forth below:
(1) preparation by the Developer in consultation with the Agency of a
preliminary financial feasibility study/analysis for the development of the Project
on the Study Area, setting forth the plan for acquisition of the County Property
and the phasing of Project development, if any, and an estimate of development
costs, project income, and a proforma statement of Project capital return
including, without limitation, the following:
(A) projections of Project income and operating expenses; and,
(B) projections of debt and equity that can be drawn from the Project;
and,
(C) projections of Project cash flow; and,
(D) projections of public (City, State, and federal) financial assistance
anticipated for the Project; and,
(E) projections of overall Project value, revenue, sales and property
taxes; and,
(F) projections of the costs and benefits to the City and the Agency for
all construction, maintenance and operations of all proposed public
improvements; and,
(G) projections of the costs of additional or increased levels of public
services; and,
(H) projections of any new public revenues anticipated to be generated
by the Project, by phase, if applicable, and upon completion of the
Project.
An initial draft of a document including the study elements identified in
subparagraph (A) through (H) above shall be completed by the Developer and submitted to the
Agency within sixty (60) days following the Effective Date. Thereafter the parties shall refine
the draft document as submitted by the Developer in accordance with a schedule of refinement
work for such studies to be mutually approved by the parties.
(2) Prior to the time when the Initial Study is completed by the lead agency,
the Developer in consultation with the Agency, shall have prepared a proposed
conceptual development plan for the Project, to include, without
limiting:proposed land use categories on a parcel-by-parcel basis, including
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proposed zoning and General Plan changes, if any, necessary to accommodate the
Project; and
(A) proposed time schedule and cost estimates for the development of
proposed public and private infrastructure upgrades, proposed
publicly owned facilities, public improvements, public
infrastructure and private development; and
(B) proposed fmancing plan identifying the timing of receipt by the
Developer and the Agency, as applicable, of the financing sources
for all private and public improvements proposed in the Project, by
phase, if applicable; and
(C) proposed financing plan for the acqulSltlOn by the Developer
and/or the County Property as necessary for the Project; and
(D) a list of potential users or tenants and anticipated lease rates and
resale land prices.
The conceptual development plan for the Project as described above may be
revised from time-to-time in accordance with a schedule of preparation and revisions as may be
mutually approved by the parties.
i. The Developer shall inform the Agency in wntmg whether based on the
information set forth in Section 4.h., the Developer believes that the Project is feasible prior to
the time when the Agency shall cause a "Notice of Preparation" or a "Notice of Intention to
Adopt a Negative Declaration" as these terms are defined in CEQA, as applicable to be
circulated to interested person or responsible agencies for the Project. Thereafter, the Developer
and the Agency may proceed to negotiate the final form of an agreement for in which the
specific terms for the redevelopment of the Property may be set forth on terms mutually
acceptable to the parties (the "Project DDA").
j. The Developer shall submit each of the items of information described in this
section to the Agency Executive Director, within the time periods set forth above. Within twenty
(20) calendar days of receipt of any such information, the Agency Executive Director shall
determine whether such information is satisfactory. If the specific item of information is
unsatisfactory to the Agency Executive Director, he or she shall notify the Developer in writing
of the reason(s) that the information is unsatisfactory. If the Agency Executive Director does not
make a determination regarding any item of information submitted by the Developer under this
Section 4, within (10) calendar days of receipt of such information, the information shall be
deemed submitted in acceptable form by the Agency. The determinations to be made by the
Agency Executive Director under this subsection in no way bind or constitute the approval of the
Agency regarding, without limitation, plans, specifications, engineering, architecture, uses,
tenants, sale prices, rental rates, the Project or the Project DDA.
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5. Oblil!ations ofthe Developer.
During the Negotiation Period, the Developer shall proceed diligently and in good faith to
perform the following:
a. Consider the redevelopment of the Project, including without limitation the
selection of tenants and the design of improvement elements as appropriate for the Project;
b. Review and provide the Project Study information described in Section 4 and
provide comments on draft versions of any CEQA document prepared as part of the Project
Study and the Project DDA and, if acceptable to the Developer, submit an executed copy of the
final form of the Project DDA to the Agency Executive Director on or before the end of the
Negotiation Period (or such later date corresponding to an authorized extension of the
Negotiation Period); and
c. Consult with the Agency on a regular basis and keep the Agency advised on the
progress of the Developer in completing its obligations under this Agreement; and
d. In the event that following the Effective Date the Developer may in its sole
discretion acquire any of the County Property, the Developer shall not cause the displacement of
any residential occupant or tenant in lawful possession on any such parcel of County Property
during the Negotiation Period without first obtaining the written permission of the Agency.
6. Al!encv Not to Nel!otiate with Others.
a. The Agency, currently, deems the disposition of the County Property and the
redevelopment of the County Property for a feasible Project to be appropriate and the Developer
appears to be well qualified to undertake the task of planning the details for the acquisition of all
of the Property, including the sale of the County Property to the Developer.
b. During the Negotiation Period, the Agency shall not negotiate with any other
person or entity regarding either the disposition of any of the County Property or the
redevelopment of the Project. The term "negotiate", as used herein, shall be deemed to preclude
the Agency from accepting any other offer or proposal from a third party to either acquire from
the Agency any interest in any County Property (in whole or in part) or development of the
Project in the Study Area, and from discussing other redevelopment proposals for the Study Area
with third persons or entities; provided, however, any person may submit and the Agency may
consider any proposal for the disposition and/or redevelopment of any lands adjacent to the
Study Area.
c. During the Negotiation Period, the Agency may in its sole discretion, elect to
acquire any portion of the County Property as the Agency may deem appropriate on such terms
and conditions as the Agency may approve. Nothing herein shall be deemed to be a commitment
or understanding by the Agency to the Developer to acquire any such County Property as may be
offered for sale or which otherwise may become available for acquisition during the Negotiation
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Period and the Agency shall not be deemed to have appropriated or made available any funds
therefore.
d. Notwithstanding any other provision of this Agreement, during the Negotiation
Period, the Agency shall not be precluded from furnishing, to persons or entities unrelated to the
Developer, information in the possession of the Agency relating to the redevelopment of any
other land owned or controlled by the Agency in close proximity to the Study Area. The Agency
may also provide any other information in its possession that would customarily be furnished to
persons requesting information from the Agency concerning its activities, goals and matters of a
similar nature, or as required by law to be disclosed upon request.
7. Al!encv Coo Deration.
During the Negotiation Period the Agency shall:
a. At the request of Developer, use its best efforts to assemble written materials and
documents relating to the County Property and Study Area that are in the possession of the
Agency.
b. Use its best efforts to provide appropriate comment to the Developer with respect
to one or more conceptual development plans, as may be proposed by the Developer for the
Project, and the redevelopment of the Study Area, including, but not limited to, conceptual plans
or studies of vacation, realignment or abandomnent of public property and facilities, the
installation and improvement of public improvements and environmental evaluation of the
Proj ect.
c. Use its best efforts to provide the Developer with limited access to the County
Property, and/or the Study Area, during the Negotiation Period, for the purpose of conducting
customary due diligence investigations thereon, including enviromnental investigations of the
subsurface or any structure thereon, subject to the terms and conditions of a separate
environmental investigation and inspection license agreement to be agreed upon by the Agency
and the Developer, at some later date, if applicable.
d. Use its best efforts to provide Developer with information or copies of studies
performed or to be performed relative to the Study Area.
8. Nel!otiation of ProDertv DDA.
During the Negotiation Period, the Agency and the Developer shall negotiate diligently
and in good faith to prepare and enter into the Project DDA for those portions of the County
Property located within the City of San Bernardino. Both of the parties shall exercise best efforts
to complete discussions relating to the final terms and conditions of the Project DDA and such
other matters, as may be mutually acceptable to the parties for the redevelopment of the Project
on the County Property, prior to the expiration of the Negotiation Period.
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9. Consideration for this Al!:reement and Reservation of Ril!:hts.
In consideration for the Agency entering into this Agreement, the Developer will
undertake its obligations under this Agreement and provide the Agency with copies of all studies
and reports and other information generated by the Developer or its consultants regarding the
Project. The parties agree that, if this Agreement terminates for any reason, the Agency fails to
extend the Negotiation Period, or the Project DDA is not finally approved by the Agency, for any
reason, neither party shall be under any further obligation to the other regarding the disposition,
acquisition, reuse, redevelopment or development of the Project or the Study Area.
10. Planninl!: and Desil!:n: Related Acknowledl!:ments ofthe Parties.
Certain development standards and design controls for the Project may be established
between the Developer and the Agency in negotiation of or in the final form of the Project DDA,
but it is understood by both parties that the Project and the redevelopment of the Study Area
must conform to City of San Bernardino development, design and architectural standards. The
Agency shall fully cooperate with the Developer's professional associates in providing
information and assistance in connection with the Developer's preparation of drawings, plans and
specifications. Nothing in this Agreement shall be considered approval of any plans or
specifications for the Project or the Study Area, itself, by either the Agency or the City.
11. Developer Financial Disclosures.
The Developer acknowledges that it may be requested to make certain confidential
financial disclosures to the Agency, its staff or legal counsel, as part of the financial due
diligence investigations of the Agency relating to the potential disposition of the County
Property to the Developer. The parties recognize that such financial disclosures may contain
sensitive information relating to other business transactions of the Developer, that the disclosure
of such information to third parties could impose commercially unreasonable and/or anti-
competitive burdens on the Developer and, correspondingly, diminish the value or fiscal benefit
that may accrue to the Agency upon the disposition of the County Property to the Developer, if
terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to
maintain the confidentiality of any business records described in Government Code Section
6254.15, as may be provided by the Developer to the Agency or its consultants, to the maximum
extent permitted by law. The Agency shall not provide a copy of any business record protected
from disclosure under Government Code Section 6254.15 to a third party, unless the Developer
first consents to such disclosure in writing or, unless a court of competent jurisdiction compels
disclosure.
12. Developer ACQuires No Interest in Real Property or in the County Property.
The Developer hereby acknowledges that it has not acquired and will not acquire, by
virtue of the terms of this Agreement any property right or property interest or any legal or
equitable interest in the County Property. Furthermore, nothing in this Agreement shall be
deemed to be a commitment or understanding by the Agency to assist the Developer to acquire
any of the County Property.
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13. Nondiscrimination.
The Developer shall not discriminate against nor segregate any person, or group of
persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or
ancestry in undertaking its obligations under this Agreement.
14. Compliance with Law.
The Developer acknowledges that the Property DDA, if mutually agreeable terms are
established, is likely to require the Developer (among other things) to carry out the construction
of certain improvements in conformity with all applicable laws, including all applicable planning
and zoning laws, environmental planning and safety laws and federal and state labor and wage
laws.
15. Required Approvals.
No Project DDA between the parties shall have any force or effect nor shall the Agency
be deemed to be a party to any agreement for the disposition of real or personal property to the
Developer, until the terms and conditions of the Project DDA are considered and approved by
the governing body of the Agency, following the conclusion of a public hearing, as required by
law.
16. Press Releases.
The Developer agrees to discuss any press releases it may propose relating to the
Property with the Agency Executive Director or his/her designee, prior to publication, to assure
accuracy and consistency of the information.
17. Notice.
All notices required hereunder shall be presented in person or by FAX and confirmed by
First Class certified or registered United States mail with return receipt requested. Notice shall
be deemed confirmed by United States mail effective the second business day after deposit with
the United States Postal Service. Notice by personal service shall be deemed effective upon
delivery. Either party may change their address for receipt of notice by notifying the other party
in writing.
TO DEVELOPER:
Catellus Commercial Group, LLC
4000 Westerly Place
Newport Beach, California 92660
Attn: Pat Cavanagh, Senior Vice President
(949) 251-7929
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TO AGENCY:
Redevelopment Agency ofthe City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attn: Executive Director
(909) 663-1044
18. Acceptance of Aereement bv the Developer.
The Developer shall acknowledge its acceptance of this Agreement by delivering three
(3) counterpart executed copies of this Agreement signed by at least two (2) authorized officers
of the Developer. The delivery by the Developer to the Agency of the executed counterpart
copies of this Agreement shall be completed within thirty (30) days following the approval of
this Agreement by the governing board of the Agency or thereafter this Agreement shall have no
further force and effect with respect to either party.
19. Authoritv.
Each signatory to this Agreement represents and warrants that he or she has the authority
to execute this Agreement on behalf of the principal whom he or she purports to represent.
20. Optional Termination bv Developer or bv Aeencv.
a. Provided the Developer is not in default, the Developer may in its sole and
absolute discretion exercise an election to suspend the Project in the Study Area, and this
Agreement shall terminate and the parties shall be mutually released from any further obligations
hereunder; provided that the Developer gives forty-five (45) days written notice to the Agency.
b. Provided the Agency is not in default, the Agency may in its sole and absolute
discretion exercise an election to suspend the Project in the Study Area, and this Agreement shall
terminate and the parties shall be mutually released from any further obligation hereunder forty-
five (45) days following written notice to the Developer.
21. Defaults and Breach - General.
Failure or delay by either party to perform any material term or provIsIOn of this
Agreement shall constitute a default under this Agreement; provided however, that if the party
who is otherwise claimed to be in default by the other party commences to cure, correct or
remedy the alleged default within thirty (30) calendar days after receipt of written notice
specifYing such default and shall diligently complete such cure, correction or remedy, such party
shall not be deemed to be in default hereunder.
The party which may claim that a default has occurred shall give written notice of default
to the party in default, specifYing the alleged default. Delay in giving such notice shall not
constitute a waiver of any default nor shall it change the time of default; provided, however, the
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injured party shall have no right to exercise any remedy for a default as set forth herein without
delivering the written default notice as specified herein.
Any failure to delay by a party in asserting any of its rights and remedies as to any default
shall not operate as a waiver of any default or of any rights or remedies associated with such a
default.
In the event that a default of either party may remain uncured for more than thirty (30)
calendar days following written notice, as provided above, a "breach" shall be deemed to have
occurred. In the event of a breach, the party who is not in default shall be entitled to seek
injunctive relief or specific performance against the defaulting party by initiating legal
proceedings but damages shall not be sought by any party or awarded to any party. The
prevailing party in any such legal proceeding shall be entitled to recover its reasonable attorneys
fees, either as part of such legal proceedings or in a separate legal action to recover such
attorneys fees. The costs, salary and expenses of the City Attorney and members of his office in
enforcing this Agreement shall be considered as "attorney's fees."
In the event that a breach has occurred under this Section 20, the party who is not then in
default may terminate this Agreement by serving the other party with a written notice of
termination, and thereafter the Agreement shall terminate thirty (30) days following the date of
service of the notice of termination on the other party.
22. Governing: Law: Venue.
The parties hereto acknowledge that this Agreement has been negotiated and entered into
in California. The parties hereto expressly agree that this Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the State of
California. Further, the parties to this Agreement hereby agree that any legal actions arising
from this Agreement shall be filed in California Superior Court, in the Court of San Bernardino,
Central District.
23. PartialInvaliditv.
If any term, provision or portion of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision or portion thereof to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each such term and provision of this Agreement shall be valid and enforced
to the fullest extent permitted by law.
24. No Intent to Create Third Party Beneficiaries.
The parties intend that the rights and obligations under this Agreement shall benefit and
burden only the parties hereto, and do not intend to create any rights in, or right of action to or
for the use or benefit of any third party, including any governmental agency, who is not one of
the parties to this Agreement.
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25. Waivers.
No waiver of any breach of any covenant or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof, or of any other covenant or provision
herein contained. No extension of the time for performance of any obligation or act to be
performed herein shall not be deemed to be an extension of the time for performance of any
other obligation or act to be performed under this Agreement.
26. Entire Al!reement.
This Agreement (including Exhibits "A" through "B" attached hereto) is the final
expression of, and contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This Agreement may
not be modified, changed, supplemented or terminated, nor may any obligations hereunder be
waived, except by written instrument signed by the party to be charged or by its agent duly
authorized in writing or as otherwise expressly permitted herein. This Agreement may be
executed in one or more counterparts, each of which shall be an original, and all of which
together shall constitute a single instrument.
27. Time of Essence.
Time is strictly of the essence with respect to each and every term, condition, obligation
and provision hereof and that failure to timely perform any of the terms, conditions, obligations
or provisions hereof by either party shall constitute a material breach of and a non-curable (but
waivable) default under this Agreement by the party so failing to perform.
28. Construction.
Headings at the beginning of each section, paragraph and subparagraph are solely for the
convenience of the parties and are not a part of this Agreement. Whenever required by the
context of this Agreement, the singular shall include the plural and the masculine shall include
the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by
one of the parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to sections are to this Agreement. All exhibits referred to in this
Agreement are attached hereto and incorporated herein by this reference.
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IN WITNESS WHEREOF, CatelIus Development and the Redevelopment Agency of the
City of San Bernardino execute this Redevelopment Project Study and Redevelopment
Assistance Agreement on the dates indicated next to each of the signatures of their authorized
representatives as appear below.
DEVELOPER
CatelIus Development,
a
Dated:
By:
AGENCY
Redevelopment Agency of the City of San
Bernardino
Date:
By:
Gary Van Osdel
Executive Director
APPROVED AS TO FORM:
Agency Special Counsel
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EXHIBIT "A"
County PrODertv
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CITYLlMlTS
r-~'
PORTION OF
MT. VERNON CORRIDOR
RDA PROJEU
(g).
Not to Scale
EXHIBIT "A" COUNTY AREA
r
EXHIBIT "8"
MaD of Study Area
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CITY LIMITS
PORTION OF
MT. VERNON CORRIDOR
RDA PROJEIT
'-l
Not to Scale
EXHIBIT "B" STUDY AREA