HomeMy WebLinkAboutR42-Economic Development Agency
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CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
FROM:
Maggie Pacheco
Executive Director
SUBJECT:
LNR San Bernardino, LLC - Exclusive Right
to Negotiate and Redevelopment Project Study
Agreement (Carousel Mall - Proposed Court
Street West Specific Plan)
DATE:
April 30, 2007
SvnoDsis of Previous Commission/Council/Committee Action(s):
On July 6, 2005, the Community Development Commission of the City of San Bernardino ("Commission") adopted Resolution
No. 2005-24, authorizing the Executive Director of the Agency to execute a Redevelopment Project Study and Redevelopment
Assistance Agreement with Street-Manchester, LLC ("2005 Agreement") and also to initiate a general plan amendment
changing the land use at the Carousel Mall site from CR-l to CR-2 which would permit residential uses within the zone as well.
On June 9,2006, the Agreement was extended by the Executive Director of the Agency in a Letter Agreement as per the terms
of the 2005 Agreement and assigned from Manchester Street, LLC to LNR, San Bernardino, LLC. This 2005 Agreement
expired on November 2, 2006.
On April 19, 2007, Redevelopment Committee Members Estrada, Baxter and Johnson unanimously voted to recommend that
the Commission consider this action fOT approval.
Recommended Motion(s):
(Communitv DeveloDment Commission)
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 (the "Agency") to execute the
Exclusive Right to Negotiate and Redevelopment Project Study Agreement by and between the Agency and LNR,
San Bernardino, LLC (the "Developer") related to the Carousel Mall (Central City Redevelopment Project Area)
Contact Person(s):
Maggie Pacheco
Phone:
(909) 663-1044
Project Area(s):
Supporting Data Attached:
Central City
Redevelopment Project Area
Ward(s):
o Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letter(s)
FUNDING REQUIREMENTS:
Amount: $
N/A
Source:
N/A
SIGNATURE:
Budget Authority:
N/A
Fiscal Review:
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PlAgcndas\Comm Dev, Commission\CDC 2007\05-07.07 LNR San Bernardino, LLC _ ERN SRdoc
COMMISSION MEETING AGENDA
Meeting Date: 05/07/2007
Agenda Item Number: 1l..'/3--
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
LNR SAN BERNARDINO, LLC - EXCLUSIVE RIGHT TO NEGOTIATE AND
REDEVELOPMENT PROJECT STUDY AGREEMENT (CAROUSEL MALL-
PROPOSED COURT STREET WEST SPECIFIC PLAN)
BACKGROUND:
On July 5, 2005, the Community Development Commission of the City of San Bernardino
("Commission") approved a Redevelopment Project Study and Redevelopment Assistance Agreement
("2005 Agreement") between the Redevelopment Agency of the City of San Bernardino (the
"Agency") and Street-Manchester, LLC, for the purpose of studying the redevelopment of certain real
property generally'known as the Carousel Mall (the "Mall") and comprising 44 acres bounded by 2nd
Street to the south, "E" Street to the east, 4th Street to the north and "G" and 3rd Streets to the west (the
"Site"), as depicted on the area map attached to the Exclusive Right to Negotiate Agreement and
Redevelopment Project Study Agreement ("2007 Agreement") as Exhibit "A". On June 9, 2006, the
Executive Director of the Agency extended the 2005 Agreement by 120 days and assigned the 2005
Agreement from Street-Manchester, LLC to LNR San Bernardino, LLC (the "Developer"), as was
authorized in the 2005 Agreement. This extension expired on November 2, 2006.
The Agency owns the parking lot around the Mall, as well as the parking structure on the northwest
corner of the Site. Adjacent to the Site are 2 vacant department stores; The Harris' Building owned by
El Corte Ingles S.A. Company of Madrid, Spain and the former JC Penney Building owned by Upham
Development Company, a Texas limited partnership.
Under the 2005 Agreement, the Developer is examining the feasibility of developing the Site as a
mixed-use development comprising of up to 750 townhouses, condominiums and loft dwellings
together with 135,000 square feet of retail space built around a river trail (the "Project") to be known
as Court Street West.
CURRENT ISSUE:
Although considerable progress has been made, unforeseen obstacles have also been encountered. As
the original Agreement expired on December 11, 2006, the Developer is therefore desirous of entering
into a new agreement with the Agency. Many significant benchmarks contained in the original
Agreement have been accomplished, the most significant of which has been the actual purchase by the
Developer in February 2006, of the mall buildings and the vacant Montgomery Ward's department
store buildings from the long-time previous owners of the Mall, the Curci-Turner Company.
To date, other major accomplishments that have been submitted to the Agency for review include the
following:
1. A detailed market study by an outside firm of consultants, which confirms the viability of the
Project;
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COMMISSION MEETING AGENDA
Meeting Date: 05/07/2007
Agenda Item Number: R""
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Economic Development Agency Staff Report
LNR San Bernardino. LLe-ERN
Page 2
2. Retention of the services of several firms of engineers, architects, land use planners and
environmental consultants to produce the necessary reports and studies in connection with the
Specific Plan and/or the Project;
3. Preparation and submission of an environmental Initial Study for the Project and the screen
check Environmental Impact Report ("EIR"); and
4. Submission for formal approval by the DERC and the Planning Commission of the two
volume, 182 page, full color Specific Plan which includes land uses, architectural guidelines,
street alignments, and open spaces.
The Project has fallen behind schedule for the following reasons:
I. It was originally anticipated that a Specific Plan would not be required; however, the
complexity and scope of a project of this magnitude proved this assessment to be incorrect and
the Developer has since converted the detailed project description into a Specific Plan, this
change, however, has set the process back by more than 9 months. The revised Specific Plan
was submitted to Development Services on January 26, 2007 for review. Comments by
Development Services were issued back to the Developer on April 6, 2007 and on April 25,
2007, the Developer, Development Services and EDA Staff teams met to discuss the Specific
Plan items in detail.
2. Negotiations with the remaining private ownerships (namely El Corte Ingles S.A. Company
(Harris' Building) and Upham Development Company (JC Penney Building) over the
Reciprocal Easement Agreement and subsequent parking issues have proved to be more
complicated and time consuming. El Corte Ingles have been non-responsive to the Developer
and it is anticipated that the Project will have to rely on the Agency to take legal action in the
future. Relations with the Upham Development Company have been far more positive and,
after several months of negotiations, a formal purchase and sales agreement for the purchase of
the JC Penney Buildings, has been forwarded by the Developer to Upham Development
Company.
To date, the Developer has expended $15 million on the purchase of the mall buildings including the
Montgomery Wards buildings, an enormous amount on the entitlement process including architectural
and engineering work. In view of the major financial commitment thus far by the Developer, the
Agency and the Developer are desirous of re-establishing their relationship with a new 2007
Agreement for a relatively short period of time extending through January 31, 2008. This will give
sufficient time to finalize the entitlement documents, the environmental documents, and negotiate the
deal points leading to the formalization of a Disposition and Development Agreement while at the
same time demonstrating the urgency of the Project and the desire to get the Court Street West Project
back on track closer to its original timetable.
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P:\Agendas\Comm Dev ConvnissionlCDC 2001\05_07_07 LNR San fkomardino, LLC _ ERN SR doc
COMMISSION MEETING AGENDA
Meeting Date: 05/07/2007
Agenda Item Number: 1t.1f3-.
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Economic Development Agency Staff Report
LNR San Bernardino. LLe-ERN
Page 3
In conclusion, in order to insure that satisfactory progress is being made in a timely manner, the
Redevelopment Committee recommended approval to the Commission of the 2007 Agreement subject
to the Developer being required to transmit a written progress report to the Executive Director of the
Agency on or before the conclusion of each 90-day period, from and after the date of the 2007
Agreement. This provision has been added to Section 5(c) Obligations of the Developer (page 6).
Hence, this report will then be forwarded to the Commission by the Executive Director of the Agency.
ENVIRONMENTAL IMPACT:
The ERN is categorized as Statutory Exemption under the California Environmental Quality Act
("CEQA") per Public Resource Code Sections 21102 and 21150.
FISCAL IMPACT:
None.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
,
Maggie Pacheco, x cutive Director
P'\AgendasICollVJ\ Dev CommissionlCDC 2007\05-07-01 LNR San BtTI'Iardino, LLC. ERN SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 05/07/2007
Agenda Item Number: JI?'I J...
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RESOLUTION NO.
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
(THE "AGENCY") TO EXECUTE THE EXCLUSIVE RIGHT TO
NEGOTIATE AND REDEVELOPMENT PROJECT STUDY
AGREEMENT BY AND BETWEEN THE AGENCY AND LNR, SAN
BERNARDINO, LLC (THE "DEVELOPER") RELATED TO THE
CAROUSEL MALL (CENTRAL CITY REDEVELOPMENT PROJECT
AREA)
WHEREAS, the Redevelopment Agency of the City of San Bernardino ("Agency") and
San Bernardino, LLC ("Developer") own certain property within the Central City
12 Redevelopment Project Area (the "Project Area"), as generally depicted in Exhibit "A" attached to
13 the Exclusive Right to Negotiate and Redevelopment Project Study Agreement by and between the
14 Agency and the Developer ("2007 Agreement") (collectively, the "Site"); and
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WHEREAS, the Agency and the Developer are interested in exploring the development
16 feasibility of the Site so as to foster the community economic development goals and objectives of
17 the City of San Bernardino (the "City") as it relates to the Redevelopment Plan for the Project
18 Area; and
19 WHEREAS, the Developer is qualified to assist the Agency to undertake the development
20 feasibility for a coordinated and economically sustainable redevelopment project on the Site, which
21 will require specific study, evaluation and planning by the City and the Agency, as applicable, of
22 appropriate and feasible community redevelopment program alternatives; and
23 WHEREAS, in accordance with the provisions of the California Environmental Quality Act
24 ("CEQA"), the 2007 Agreement is exempt from the provisions of CEQA.
25 NOW, TIIEREFORE, TIIE COMMUNITY DEVELOPMENT COMMlSSION OF TIIE CITY
26 OF SAN BERNARDINO DOES HEREBY FIND AND DETERMINE, AS FOLLOWS:
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Section 1.
The Community Development Commission of the City of San Bernardino
28 ("Commission") hereby approves the 2007 Agreement by and between the Agency and the
P/AgendaslResolutions/2007/05.07.07 LNR San Bernardino. LLC-CDC Rewdoc 1
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1 Developer in the form as presented at the meeting of the Commission at which this Resolution is
2 adopted and hereby authorizes the Executive Director of the Agency to execute the 2007 Agreement
3 on behalf of the Agency together with such technical and conforming changes as recommended by
4 the Executive Director of the Agency and approved by the Agency Counsel.
5 Section 2. The Commission hereby finds that the 2007 Agreement is exempt from the
6 CEQA,
7 Section 3.
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The Resolution shall become effective immediately upon its adoption.
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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
(THE "AGENCY") TO EXECUTE THE EXCLUSIVE RIGHT TO
NEGOTIATE AND REDEVELOPMENT PROJECT STUDY
AGREEMENT BY AND BETWEEN THE AGENCY AND LNR, SAN
BERNARDINO, LLC (THE "DEVELOPER") RELATED TO THE
CAROUSEL MALL (CENTRAL CITY REDEVELOPMENT PROJECT
AREA)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
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Development Commission of the City of San Bernardino at a
meeting
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thereof, held on the _day of
,2007, by the following vote to wit:
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Commission Members:
11 ESTRADA
12 BAXTER
13 BRINKER
14 DERRY
15 KELLEY
16 JOHNSON
17 MC CAMMACK
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Aves
Navs
Abstain
Absent
Secretary
21 The foregoing resolution is hereby approved this
day of
; 2007.
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Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
25 Approved as to Form:
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Agency Co nsel
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REDEVELOPMl':~lT AGENC\:.
OF TIlE CITY OF SA.."" BER."ifARDL"IiO
REDEYELOPME::"T PROJECT STUOY .~"ifn
RIVEVILOPMENT ASSISTA:~CE AGIlliEMENT
{1.NR San Bernardino, LLC: CAROL'SEL MALL)
[HIS REDE\1:LOPMEST PKOJECT STUDY A'ID l{EDEVELOPtvfE"t'<l
ASSISTANCE J\GREEy1Et~T i" dated 2.S of May 7, 2007 (this "Agreem<,nt''), and is entered
mto 0\' JIlJ belwee:;: L'<R S:m Bc:nMdmo, LLC, a Califor-.Ji.. lllllired liability company (the
":)e"dope('!, ;it,d ti" Red~\el0pmem Agency of the City of San Bernardino, a body corporate
,md pohtic i:the "Agtn,')""" inlighl 01 thl> facts set forth m the following recital para~'Taphs:
RECITALS
!1.. Tbc A~-~nc): desire$ to encourag~ and effectuate the redeyeloprnent of certain real
proptTt'I, kU"Wli ge1Klaliy ""' It" CJrousel Mall aDd comprising approXllDately forry-rour (44)
acre:;. gencraliv bou;,(,cd tYi ..,'''; :;tmet ,() the south.. North "E" Street to the east, East ",1lI Street to
the noiill, and 'tb~ c<m\'~rgence of West 3'd Stred and "0" Street to the west (the "Site"), that is
d~pictd OIl the "SruJ: An;:" M"p" "ttached hereto as Exhibit ":\"; iWd
~. 'T'h, S;;; li<;c; ",1:)"" the Agency's Cen'Jai City Projects, Rcd"..elcpment Project
..\,l'ea ~,l.j~ ~;Prl.-)_;(:,-l .\Jo ,,"."- ;<.J.~-: ic :'Ub~1(Ct t.) me P:Cljcct .:-uea's go\-erning rcd(',el(;prl1~!lt plan (the
"Rede-velopniiT:: Pb.:j"l: 3:.0
'i'he SJ.~(~ ;::;)Hsish ,-rr 1.D.r~C (3) ';a;;ant department stJr~~~ retail shop spaces, il
pll'lang Jot, ;l CGillmOre an::1, and two (2) vacant auto sen1ce centers; and
D. The Aguey '-'\<'11$ the parking h,t and the City has oKned and cc.ntinues to OWll
tr.e common arc?" on rh~ Sne. ~s de-picted in Exhibit "B" (collectively, the Agency ownerships of
cenair. re3.1 property ,Ull! the '~;r:: oWllelsl:ups of certain re-a! prop my include-Ai witbin the REA
i '-IS hf-I-.'..... -1~.....tir.,"..i, ".'," . ,.....'~..n..".(..j "'" hp""IL' . f,...,T' "'()n"';~nl'~n~<" F"TnOC"''' as th'~ .w", r,enc'" P"o~ertvt'
....-. ^-': ..J', .,...... : ,;;.. '-"., _'," ,.~ '.>'; ~ ..-.1.'. ...'-. ,"'~. ,..... ... ..... '----t-" ...."".:::. ---\;; ..).~, .\ .. i" "' ~
,~.:!i;"":{'l :~~ ",]-.--'" -'i';'"f~;" "le.I?:--)~l,""l'- .~~~. R^'~t'1'i"'.I''-\n' Co"'-;;::U~I.~tI'()" (\-~r:.;tl"li. R,..-......j......h...,D ,nd
. ._..~ _. ... . ~__..' ..- .._ _<.. '.. '.' ... ,\..,..... ...'. ~......" ,u.,..,I.~.. ..... JF"-.... '__ _ ~.,,~.,J. ....i.J.t~ ....u
i::dSelu:;-;ut A~'T::':~'~lt..-~t \'iat~d' Dece-::nbe:- 24, 1970, and entere-.d into by and between: the !~gency;
.iubn S. (n~ffit..~ .~: (, (:;.. .1I~j t...~ll(:i~TU:'Df.'T Co.: J.e. Penney Compan:.,.': inc.~ r-..loD."..var Property
Corporation; The Hai'!" Cun1lnny; the: City of o,an Bern,udi.u(>: 'C'pham Development Company:
:~nd CCduec11clH (jeu::/....J ;\L'I1g~~ge a!ld Re~:ty In\'estInents (th~ '.REA':); and
P'J.rSl",;r to th;1t (<:liain Op,ic'n to Purchase Agreem~nt, execut0d ;\larch 29, 2005,
by and betwe'~n ":re~, (;;;p!taJ Corporation and (1) Central Cii:' Companv. LLC. (ii) Central City
C.:nJlpi,~\~ l.LC ~u-l,i {Eli ;'. 'JL:;-J".uueI Com.J.>ilil~\' (coHecti....-d:v~ .'[~T1tral eifY.."'). Stlcet Capit4.;J
C::Jrporatlon ~~:, :~~t: p:t;;,~LC;,-...~:'I,'I .ill to[ules~ i..O the Developer had tH~ op;ion to purchase certain
real prupen\ ar;" o",;.Lwgs (>)CilPllSlfl2; the Site, including We department store aud auto se~ic<::
C<;:Dter fornwri\' ""u,r"e.-i h' tvl,)nttornel~ Ward, and thl:' rt1aiJ ~hop "paces (collectively, the
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"Central City Buildings'"), which were O\med by Central City. The Developer as the successor
in interest to Street Capital Corporation exercised the option to purchase the Central City
Buildings aud has dOi'ed escrow \"ith respect thereto on February S, 2006. The Site, including
the three (3) department StOI es, the Central City Buildings, and the t\vo (2) auto service centers
are owned by three (3) separate and db'tiuct third parties, as depicted in Exhibit "B" (the "Private
Propeny'"). Th" ,:kparul1cnt store commonly kIlO'V/Il a~ the "Harris Building" is ov,ned by El
Corte Ingles S.A., a Spauisb. company. TIle department store and auto service center formerly
occupied by JC P'-'lliiey (coLJecuyejy, the "Je Penney Propenies"), is owned by Upham
Development Company, a Texao; limited partnership; and
1'. 111e Developer pwposes to dete-rroine the feasibility of developing the Site as a
mi."ed use deve10pment cC'rupnsing up to 750 smgle-family artachoo/detached dwelling units and
up to 1:->5.000 squme reM of l:ornmercialiretail space while recogrJizing ,rod retaining the Project
. Area's unique architectural fabric and lustonc building characteristics all as illusrrated in the
draft Specific Plan (the "Specific Plan') as tiled with the Cit~ of San Bernardino (the '"City") in
fel>nm)' 2007 (cc>lkctiY~lY, th~ "Proje:;t"\ and to negotiate with the Agency the poteutial terms
of ar, Owner l'arti..:ipa.i('ll AgreeUl<,nt or other mutually acceptable Disposition ,uld Development
AgreemenT (the '.l'rqje,;t 1)VA"); aau
G. The Agency is pr'"parl"-d to consider and stody the pTo~~slOn of certain
redevelopment assis:.J.<.:e to the Developer which bas not been identified as of this date to
facilitate the a.~s=b'J ()[the Private Property with the Agency Property into developable parcels
ofjand,o as ,() lOSH.'" [:1<0 commu.-uty economic development g,);i!S mId objectives of the Agency
and the City. in;;ludiLg the elimjJlahOi1 a.lld spreadulg of blight, as the sam.:: relat<::s to the Project
Area and tJ'le Agency has designated th~ urea to be included for such study purposes, the land
within the peruneters of tlw Site, as depicted in Exhibit "c" which ine'ludes a copy of the site
plan ex<.:erpted fiou:: ttc' draft Specific Plan ::the "Study ,.\rea") for such study; and
H. Tb.e Dcyeloper is quali1i"'d to assist the Agency to undert.'l.ke the ~rudy of specific
propo~als and plans li.:r '1 cOOHiinated and economically sustainable redevelopment project in the
Project :\rea, ioduang the Study Are", which 'I'.'iU require specific: study, evaluation and
plano!..,g by the eit" anc Age:h:;' as o.ppli:::able, of approprht.~ a~!d feasible community
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1-'_ ....~.H..1!- ',..-1,H !-,~'. .U.l. ......P.- .l-,\",~ .....}; <...... U
The pr"dcceSSN in mterest to the Developer had pr"viously obtained an exclusive
negotiating agreemenT with The Agency substantially similar to this Agreement in form and
content: said prio) ai~eement W:iS Jal~d as of July 5, 2005, and ex.pired pursuant to lIS terms on
Novernber 2. 20(;(,; it's 111e intcn1 d'the Ageucy and the Develop''!' that this Agreement shall
supersede said e.~pired prior ag.reellleut and shall ,update the facts and circumstances which have
changed due to me passagt' or time sillce (he approval and subsequ<.'ut rerruination of the prior
ag:reemt'nt; a.'1G
J. Tue De\'doper and Ih~ Agency believe i{ is appropriate for the Agency, in
consult,1tion with ',he Devebper, w reyiew by Agency staff those. s~dies, reports and
investigatiou~ (:()UdUdE'J by tbe Devel(iper as the Project Study Costs as part of a program for the
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study offe)sible redc\'dopment progra.c"1lS tor the Study Area, subject to the terms and conditions
,,< set forth below.
NOW THEREfORE, IN CONSIDERATION OF THE l'vfUTU;-\L COVENA.NTS AND
PROMISES SET FORTH HEREE'-l, ruE DEVELOPER AND THE AGENCY HEREBY
AGREE. AS fOLLO\~'S:
I. The Kegotiation Period and the Term of Agreement.
~l. The rigeL, and duties ofthc parties established by this Agreement shall commence
t"(.llo\Ving it;; approv.1! by the governing body of the Agency when it has been fully executed by
the parties withill the period 01 time autborized in Section 17 (such date being the "Effective
Date"). 1rus Ageemc'1t will continue in effect until a date which is set forth in subparagraph b.
below and as IDay be extended as provided therein. Such time period dur:iJlg which this
Agreement shall be m dtect (iDclllding any extensions of time approved by the Agency) is
referred to as the' ,.",.:gocjation Period",
b, l1:is Agree;neIl\ s!;Jail automaticJJ.ly terminate, without further notice or action,
and be of no fur'u'-ter hr<;~ or effe:t as of th:: close of business on January 3 L 2008, unless prior
tt) that tmc:
( i) . tbe !Ja.nies exec-ute tbe Project DDA, as descnboo below, which will
mclude, without limit;lhon other rel~vant community redevelopment covenants acceptable to the
Agency and suco oth,"!' terms and conditions mutually acceptable to the parties, in which case
this Agreement shall terminate 00 the effective date of the Project DDA; or,
,~) lhe parties each agree to extend the term of this Agreement in writing fOf
one (1) addltional ~xkn.si'-'n piCri,)d ]Jot to exceed one hundred twenty (120) calendar days if (i) it
IS determined by th'. '\g"oev Exenttlve Direc-tor that satisfactory progress is being made to
complete lhe adl'lhe., lC' be pt<lf.)fnid oy the Developer set forth ill Section':>, and (ii) such
e,xtenc..J term i, app.,;wd bv tbe ufEcial aCtl0U of the goveminz body of the Agency as all
":iJ:nendn1ent to tilis Agn:<.;:rne-nt; UL
c:r,
20~ a.:; .1.ppliCitblt-,
a pahY termmates thi3 Agreement as pro,idoo under Section 19 or Section
Develop...r Ac.kuo"ledgweuts.
a. i:l" De ,elope. ho;wby ack.:iowlooges and agrees lhar no provision of this
Agre<:ment ,li<i]: be J, L-'LJ.ed hl ioe :-w (,ifer by the Agency or an accepran-:e by the Agency of any
offer ',n pIOPOS::,; rrc,'11 thi.: D<!\'e'ofler to convey any interest in the Ageucy Property or the
J-'ri,'it:e Property ':c fl,? Develcpcr /01)' studies relating to the Study Area, the Agency Property
or the PriVete Pwperty, "-lld the ?roJ<::~t thal may hereafter be undertaken by th" Developer, in its
sole discretion shall be the sole responsibility of the Developer and shall not be deemed to be
u\1dertaken tor the.benefit orlne Ageocy, or the CIty.
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b. The qualific"ti~,ns and identity of the Developer and its principals are cfparticular
concern to the Ageu.:y. TIle Agen{;)' relioo on these qualifications and identity iD enteri.og into
this Agreement wiL':! the Developer. Dud;lg the term of this Agreement, no voluntary or
involuntary suect's~ol-iil imerest of ,he Dtweloper shall acquire any right Of power under this
Agreement. TIle Dt:\doper shall nut assign ill or any part of this Agreement or any rights
hereunder, without the prior written approyal of the Agency Exe(,'Utive Director, which approval
shall Dot be unreasonably withheld, proyided the Developer can demonstrate to the reasonable
satisfaction of the Agency Executivt' Director that the Assignee has the financial capability and
the experience necess;l.'-Y tl> develop the project to the same standard of quality that would have
been undertaken by Developer. ~Otwiths1311di.og t.l}e foregoing, Developer shall have the right to
a;;sign this Agreement and its :ights hereunder to an entity, which controls, is controlled by or is
under comm;:>n contrOl with the Developer, or its principals, members 01 affiliates.
c The D::'.clc>per ohail promptly notify the Agency in wriW3 (If any and all changes
whatso,~ver in the idto"rltity (If the husiness entities and individuals <'--Jther comprising or in control
of the Developer. as well as .mv and all changes in the interest or the degree of control of the
Developer by any sldl partv, of which infOIT'.1ation the Developer or any of its paltners or
officer.; ha\'e becn r:outied or way otherwise have knowledge or ll1fonnation. Upon the
occurrence of ,"ny ciguificant lOr material change, whether voluntary or involuntary, iD
membership. ownership. managerne!J.i or control of the Developer (other than such changes
oc-casioned by the d~ath or incapacit:,. of any individual) that has not been approved m writing by
the Agency E):ecutiv~ Direcwr, pnor to the time of such change, \1e Agency iliay terminate this
Agreement by servin I' \\-ntrell notice of :>uch termination, referencing this Section, on the
Developer.
:'. Proj<:ct StHdy.
;t. Ti,e Dev<:!'Jper is determining the feasibility for t.r,~ redevelopment of the Project
proposed by the Deveioper (the "Project Study").
The Developer has caused the initial phase of the Project Study to OCL:1.lr, by the filing
",,-ith the City in Febru;u-y 200i of the draft environmental impact report ("Draft ElR" or "ElR"
as applical;le) as this teml is delirled under CEQA. The Agency <::nd the Developer shall use
il,,,,ir b""t dllll\> to ~,"Ii$" th" perj~,d fOr public Te"iev.' of the Draft ErR to commence within
mnet) (90.1 cal~::nJar cL:tys. folk,\; l1J.b ~1~ Effe~ti\.:c Dat~. As use,d h~rein, the term ~~best effons
basis" and "best efkr;o.-- whether appiicab1e to the Deyeloper or the Agency or any other person
or entity not a po.lt)" w this A"reemenL shall mean that such entity, person or pany shall perform
tbe required ac110n l(em in a tinKly and diligent manner and :'hall be responsible to iDeHr
reasonable eo;;'s, unkss nUlep::se liU1lt.~ :n a parti<;ular i:nstlillce, in an effort to accomplish the
intended result but Y') '..iwut any guarc,nty or warranty as to the final outcome or result of any such
eftons. The IJr"ft [iR d.'i pr"paa,d hy the Uevdoper shall bl' reVlewe.:l by Ih" Agency strrr for
gener..l confimrllty wilh t!'t;5 A?fe.enent. illC CEQA process was irutiated With the distribution
of a N(,ucc of i'~epCll,,!ion Em c\ lay 2S. 2006, ,md such CU).A pri)CeSS shall cominlle with the
cLstribution of!h~ DLiit ElF. for F"blic rev:ew c,o; set forth ~1:>ov",. Subject to Ihe pri'~lege of the
DevelJper to st:spenc tl1e p,-(;j~ct Sf~dy prior to its completicn 2$ :o:.:::t ff')!tb1l1 Sectlon 19, each of
the partJes pres;;ntly bdieve:; tll"t the hoject Study can be completed, including without
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limiUitiOn, )he oondu.:t of a public hearing on a final HR document for the Project, within eight
l8) months following th.. Effeetive Date.
b, The Developer IDay modify the description of the Project 10 non-substmtial ways,
at any time; provided however, that substantial modifications of the description of the Project
shall be 5ubjec._ ti) 1he approval of the Commu..uty Development Commission (the
"'Commission") acting ;1$ the go.,.,;ming boa.nl of the Agency, a.t its 501e discretion.
The Agency and the Agency Executive Director may request that the Developer consider
modifications to the description of the Project from time-to-time, The final form of each such
moditlcabon shall be subject to the approval of the CorrmrissioD 00. behalf of the Agency and the
Developer, each at their sok discretiolL
c. Tbe AgencY shan on a best effolts basis during tbe course of the Project Study
CDnsider the specific terms and conditions of redevelopment assistance which the Developer may
i-'ropose to illclude in ;he Project DDA; provided., however, the Agency reserves the sole and
absolut.; dislTetiou to accept, rejec.t 0, modify any such proposed term or condition to the Project
DDA in its sole discretion.
J. All third-pmy consultants, if any, retained by the Agency to review any study,
report or document prepared by or on behalf of the Developer as part of the Project Study shall
be subject to the sole ':ontrol 'tJld direction of the Agency. The work product of any such person
shall.be the property of the Agency and the ,\gency shall have the right to use and republish such
..york product fal any purpo:-:e.
e. f RESER VEU - NO TEXT]
.. COmmffic.ing as or me Effective Date, the Developer and the Agency shall
proceed to negotiat" the [wal fonn of an agreement, in which the specific terms for the
redevelopment of tll.. Site ma)' be 8et f()rth on terms mutually acceptable to the parties as may be
;:onUlined in the Project DDA. Nothing contained herein shall conimit either the Developer or
the Ag"llcy to accept The final form of the Project DDA and the Developer recognizes and agrees
that no final Projecc DDA OJl be executed by the Agenc)' unless and until approved by the
gov=ng bOc.ni of cO"le Agency at its sole and absolute discretion at a public meeting duly
noticed under applic:.b}e Califomia law for such purpose.
g. ill each case w1<:1'e ill" Developer is re<juired to submit l1H item of i.uformatiou to
the Agmcy Executive Dir~C\0r, lhe Developer shall submit such it= of info1'mati"n descnbed in
this Sc.:;tiOI1 to th" Agen;;y E.",",cuti\e Directo:, within the time periods set fo~.h above. Within
twenty (20) calendar dav5 after receipt of any such information, the Agency Executive Director
shall oetennwe w.~etj"!r such infonnation is satisfactory. If the spccifi<.: item of inti)rmanon is
unsatisfactory to 1he i'.~em:y Executive Dire,-wr, he or she shall notify the Developer in writing
of the re4."on or rca;;,ns tha: r.he informatioi'l lS unsatisfactory. if the Ag"l1cy Executive Director
doe, not mah:1 de'ennin:ltion regardiug any item of information subnlitted by the Developer
under this Section 3, within twenty (20) calendar days of receipt of such iniormation, the
illfomlatlCn ,hail be o~em<,d submitted in acceptable fonn by the Agency. The determinations to
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be made by the Agency Executive Director under this subsection shall in no manner 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
4. Project Study Costs.
For the purposes of this Agreement, "Project Study Costs" shall mean and refer to the
costs and expen~es of third party consultants who are engaged by the Developer under written
contract to UIldertake one or more elements of the Project Study including the envirornnental
review and processing <md the preparation of all required studies and reports in furtherance of the
entitlements to he requested by the Developer from the City andlor the Agency. Project Study
Costs shall include third part) costs incurred by Developer in connectioll with the preparation or
submission of any inJonnation relating to the Project on which any element of the Project Study
may be based, including civil engineering expenses, traffic consultant fees. architectural fees,
accolli.ting fees and the !LI,e. In addition to the Project Study Costs incurred and paid by the
Developer, each party shall bear its o",n legal fees and costs and for consultants and service
proyidcrs. which such party engages. Nomithstanding the foregoing, the Developer understands
that the Agency may request, an.d the Developer shall consider, that the Developer enter into one
or more separate wrinen agreements pursuant to which the Developer would reimburse the
Agency for specifically budgeted, idelltified and capped third party independent consultant costs,
which the Agency may desire. based 'on staffing unavailability, to review the Project Study. The
Developer furJ1er recogoizes that 1t \\ill be requited by the Agen"y as the "lead agenci' under
CEQA, to enter into a separate agreement for all additional costs that lllay be incurred in such
"lead agency" capacity to re\icw and process all CEQA documents to be prepared by or on
behalf of the Dew;loper as the Project Study Cosi.s.
5. Obligations ofthe Developer.
During the Negotiation Period, the Developer shall proceed diligently and in good faith to
perform the foilo'''wg:
a. Con$lder the redevelopment of the Project, including vrithout limitation the
selection of tenants and the design ofimprovernent elements as appropriate for the Project; and
b. Review zmd prQ\ide the Project Study information describe-d in Section 3 and
provide all dr<1ft versions of any CEQA document required by the City to be prepared by the
Developer as part of the Project Study and the Project DDA and, if acceptable to the Developer,
submit an executc'd c,'py of the final form of the Project DDA to the Agency Executive Director
on or before the <:nd of the Negotiation Period (or such later date corresponding to an authorized
. extension of the Negonation Period); and
\.0. C Oru,ull\\it.~ tile Agency and the Alleney Executive Director 011 a re2ular basis
and h:ep the "\.~en(;y and till': ,(~cu~y Executiv; Dh-ector advised Oll the progr~ss of the
Developer in completing its obligatious under this Agreement. Without limiting the effect of the
for"goiug, the Developer shall submit a written report to the Executive Director of the Agency
on or hdore the conciusion of each ninety (90) day period from and after the Effective Date of
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this Agreement. Such rqlort shall set forth the activities and accomplishments of the Developer
iD. furtherance of the processing of the Specific Plan, the EIR, the negotiation of the Project
DDA, and the acquisition of other properties, if any, which the Devleoper intends to iD.c1ude
\\ithin the Specific PI<Ul.
6, Agency Not to Negotiate with Others.
a. 1 he Ag"nc)', currel]!];-, deems the disposition of the Agency Property and the
redevelopment of the Site for a feasible Project to be appropriate, and the Developer appears to
be well qualified to \1'1dertake the task of planning the details for the acquisition of the entire
Site, including the sale of the Agency Property to the Developer.
b, D'uril18 the Negotiation Period, and subject to the Agency's compliance \vith the
California Conimunity Redevelopment La\', ("CRL") and the Agency's Owner Participation
Rules regaiding the rights of owners and terrants, the Agency shall negotiate exclusively with the
De~'eloper ;,vitil Iespe..', to the Sitt dtuing the l"egotiation Period, the Agency shall not negotiate
with any other person or entity regarding either the disposition of any of the Agency Property or
the redevelo;:ruent of t..'re Project on the Site and'or the Study Area. The t= "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 Agex1CY any interest 10 any of the Ageocy Property
(in whole or m part) or redevelop the Site, and from considering other redevelopment proposals
for the Site with third persons or entities; provided, however, any person may submit and the
Agency may con>ider any proposal for .the disposition and/or redeveloprueot of any lands
adjacent to the SIleo Nothing contained herein shall be interpreted to preveot or limit the
requirement and the ability of the Ageocy to negotiate with and obtain property interests in any
real property or busiD':5~ mterest located within the Site when such third party is exercising their
right.~ pursuant to The Agenc)' s Owuer Participation Rules as required under the eRL. Such
exempted transactions from the limitation:; of this Section shall iD.clude the various business
tenants pre..;"ntl) ('r bcteofter located in the Ceotral City Buildings, Nothing contained herein
shall preclude or linul the abrlity of the Agency to negotiate with any owner participant for the
acquisition of ponioli' of the 8!tc by such oVlller participant as ID.'lY be deemed necessary to be
undertaken by the Agency in the eXcTClse of the rights of such owner participants under the CRL
.0;: for tLe e;>;.ti.uguisluncnt of the contractual r'ie..hts of such owner p;:nicipants under th" REA.
c:. During the'Jeg(Jtiation Period, the Ageocy may in its sole discretion, elect to
a<:quire any Private l'JOj.lett, as t],,,, Agenc)' may deem appropriate on such t=s anJ conditions
as the Agel1(;y may appro,-'. Notl'.ing herein slliUI be deemed to be a comwitment or
clnderstanding b\ W<.: /"~'-'llcy to the De\ebper to acquire any such Pri\'ate Property as may be
offered for Sui" "r whidl otlwn\1Se may become: available for acqui.ition during the Negotiation
Period and the .-\gctlC:Y sUa\! not be deemed to have appropriated or made available any funds
therefor".
d. ]\athing 1D tills Agreement shall bind the Agency to, or b" construed to be a
cQIIlIDitmeut 1:>~' the ,-"zeD';Y to, ~xer('.ise its power to acquire property pursuant to Health and
Safety Code section ~339] ('r to exercis<;; its power of eminent domain \\1tb regard to any
partiC'Jlar parcel or parcels comprising the Site. As ulay be further provided in the Project DDA,
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the Agency may be requested, however, to consider in good faith, consistent with any applicable
pro\<ision of law, any request to the Developer that the Agency exercise its power of eminent
domain with regard to any particular parcel or parcels comprising the Site. In no event shall the
Agency have any liability to the Developer for the Agency's failure to act upon the Developer's
request, nor shall the Agency exercise its power of eminent domain unless and until the
governing board of the Agency (the "Agemoy's Board") has duly considered the evidence before
it as to whether the affected property is necessary for a public use and, in the exercise of the
Agency's Board's sole discretion, has adopted a resolution of necessity after a duly uotice public
he,~ring, and bas otherwise coluplied witb the provisions of the Californian Eminent Domain
Law, Code of Civil Procedure section 1230.010, et seq. The Project DDA shall additionally set
forth the financial obligations of the Developer for the payment of the costs of such eminent
domain proceeding, irlcluding appraisal costs, expert witness fees and legal expenses, whether
through the purchase price of the property so acquired or othet\\ise.
e. 1"otwithstanding any other pro"'lsion of this Agreclnent, during the Negotiation
Period, the Agency shan 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 i.n close proximity to the Site, except for the Study
.lIrea. Consideration of the redevelopment of the Project Area under the terms of the
Redevelopment Plan shall remain in the sole and exclusive purview of the Agency. The Agency
may also provide any ot.l)er information in its possession that would customarily be furnished to
persons requesti"g iniormation from the Agency concerning its activities, goals and matters of a
similar 11ature, 0, as required hy law to be disclosed upon request.
7. Agency Cooperation.
During the Negotiation Period, the Agency shall:
a. At the ''''luest of Developer, use its best efforts to assemble ,,1irten materials and
documents relating to the Site that are in the possession of the Agency.
b. Use its best efforts to provide appropriate c('mment to the Developer with respect
to one or more conceptual development plaLls, as may be proposed by the lJeveloper for the
Project, and the rede'.'eJopment of the Site, including, but not li:1nited to, conceptual plans or
srudies of v3cation, ren.!ignment or ab:mdonment of public plOperty and facilities, the installation
and improvement of V,iblic i.mprovements and environmental evaluation ,:;lithe Project.
c. l'se its best effurts to provide the Developer with limited access to those portions
of the Site o\vned by the Agt-'Ilcy and the City and referred to herein 3S the Agency Property,
duri.ng the Negotiate,n Period, for the purpose of conducting customary due diligence
investigations thereun, includiDg em'iromnentaJ investigations of the sub~urface or any strUcture
thereon, subject to the terms al1.d conditions of a separate environmental investigation and
irL';pectioll iicCllsc a3recm~nt to be agreed upon by the Agency and the Developer, at some later
date, if applic8ble.
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d. lIse its best etfons to provide Developer "'lith information or copies of studies
performed or to be perform~ relative to the Project Area.
e. Use its best effort:; to formalize the Project DDA with the Developer, wherein the
Agency agrees to transfer to the Developer the Agency Property for such consideration to be
agreed upon, including the development of the Specific Plan as on file with the City, in exchange
for the release of the Agency and the City from the REA, under which the City is currently
obligated to pay approximately one million dollars ($1,000,000) annually in maintenance and
management expenses.
f Use its best eftort:; to assist the Developer in obtaining the entitlements necessary
to develop 1.be Project on the Site but ...ithout the incurriog of any independent consultant or
legal expenses.
g.. T,) the: extent required by law, the Agency shall use its best efforts to commence
the process requrred under th", CRL and other applicable law for the agency to provide notices of
owner participation rights, as a condition precedent to the ability of the Agency to acquire real
property interests ,hrc.ugh a voluntary acquisition or to consider adopting a resolution of
necessity and utilizing. its power of eminent domain. Any such acquisitions, including the costs
related thereto for appraisals, expert witnesses and legal expenses, shall be with funds provided
by the Developer all as may be set forth in a separate written agreement ur the Project DDA
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h. Use its best eftorts ",ithout the incurring of any consultant or legal expenses to
utilize Agency staff perso!lllel to expedite compliance under CEQA for the Project, including,
without limitatIOn, ail.' zoning changes, adoption of a Specific Plan, General Plan amendments, a
Statutory DeveIopmern Agreement, and all other entitlements necessary for the development of
the Project on the Site. suggested by the Developer in its proposed conceptual development plan.
referred to in Section 3c(B.\ above, or a: any other time during the Negotiation Period_
3. :Kcgotiation of Project DDA.
DUrir'g the Ncg,',ialioll PtcriuJ, the Agency and the Developer shall negotiate diligently
and in good faith to pr .:p3r~ and enter ioto the Project DDA. Both of the parties shall exercise
best efforts to cumpk:e discu.."iens relating to the final tenus 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 Proper[;l, prior to the expiration of the Negotiation Period but neither party, after
such diligent and good iajjj negotiations, shall be bound by any term or pro"ision of this
Agreement to complete any s'xh uegotiations or to execute any final Project DDA.
9. ConsideratioD for tills Agreement and Reservation of Rights.
In v>mideration Ior me Agency's entering into this Agreement, me Developer will
llndenake its obligations und,,'T this Agreement and provide the Agency with copies of all studies
and reports and other intonuJUou gt'l1erated by the Developer or its consultants regarding the
Project or the Site. The parties agree that, if this Agreement terminates for any reason, the
tit Agency fails to extend the Negotiation Period, or the Project DDA is not finally approved by the
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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 Site.
] O. Planning and Design; Related Acknowledgments of the 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 Site must
conform to City's development, design and architectural standards. The Agency staff shall use
best efforts to cooperate 'with the Developer's professional associates in providing i.."lformation
and assistance in connection v.itb the De"\eloper's preparation of dra",'ings, plans and
specifcations. Nothmg in this Agreement shall be cons1dered approval of any plans or
specifications for the Project or the Site, itself. by either the Agency or the City.
II. Developer FinandalDisclosures.
The Developer acknowledges that it may be requested to make certain confidential
financial disclosures to the Agency, i1s staff or legal counsel, as part of the financ-ial due
diligence investigatio!lS of the Agency relating to the potential disposition of the Property to the
Developer. The pa.rries rew gciZi' that such financial disclosures may contain sensitive
irIfOllllation relating to othel business transactions of the Developer, that the disclosure of such
information to third parties could impose commercially umeasonable and'or anti-competitive
burdens 011 the Devdopcr and, correspondingly, diminish the value or fiscal benefit that may
accrue to the Ag"m:y upon the disposition of the Property to the Developer, if tetms for such
disposition are mutually ag-eed upon. Accordingly, the Agency agrees to maintain the
confidentiality of auy of De-,eloper's financial and!or proprietary information that is exempt
from disclosure: as a Public Record pursuant to Government Code Sections 6254.15 and 6255.
Developer shali have tile right 1O request that the City of San Bemardiuo or the Agency restrict
access to documents fuat IDay be determined to be exempt from disclosure pursuant to the
applicable provisions l,f the Public Records Act and, in that event, Developer shall indemnifY,
defend (subjec' .0 the :ipprovaJ of D~'eloper's legal counsel by the Agency Counsel), and hold
harmless_ including attoi'llcy's fees, me City of San Bernardino anrl the Agency from any action,
lawsuit, or other proceeding imtiated to obtain access to document, that may be detennined to be
exempt from disc1osl11e pursuant to the applicable provisions of the Public Records Act. The
costs, sala.ry and expens0s of the City Attorney and members of his office in representing the
City andivr th, Agency shall be comidcred as "attorney's fe<::s" for the purposes of this
paragr~ph_
1: 2. Nondis<.:l'iminatil)ll.
The D~\ dop.:r ,h<1ll Lot discriminate "gainst nor segreg,ate aoy person, or group of
persons on aCC'.JlUJ1 0r" race, color, creed, rdi&-1on, sex. IllaJ:ital status, handicap, national origin,
sexual orientatiou, or a:lcesU} in u;1dertaking its obligations under chis Ag:r<::i:1llCnt.
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13.
CQropliance with Applicable Law.
The DevdopcI acknowledges that the Project DDA, if 1llutually agreeable terms are
established, is likely to reqwre the Developer (among other things) to carry out the construction
of certain improvt-ments in confonnity 1i\rith all applicable laws, including all applicable planning
and zoning laws, cllyironmental planning and safety laws and federal and state labor and wage
laws.
14. Required Approvals.
~o Proj,xt DDA between the parties shall have any force or effect, nor shall the Agency
be deemed to b~ a pJrty to an:; agreement for the disposition ofreal or personal property to the
Developer. uutil the terms and conditions of the Project DDA are considered and approved by
the goveming h()dy 01 tbe Agency, following the conclusion of a public hearing, :;s required by
h",.
15. ?ress Releases.
Tbe De\doper agrees to discuss any press releases it may propose relating to the Site
\\ith the Agency Executive Director or his/her designee, prior to publication, to assure accuracy
and co!:"istt:IlCY ofrhe information.
1 L'.. :\'oticcs.
AlluQtices rc,quired hereunder shall be presented in person or by FA.X alld 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 Vlith
the UI'Jted States Postal Senice. :'o!otice by personal service shall be deemed effective upon
delive..y. Either party may change their address for receipt of notice by notifying the other party
iu \\TIting.
TO DEVELOPER:
LNR San Bernardino, LLC
Attn: Jim Cottrell, Senior V.P.
Attn: J. Patrick Galvin. CPG General C,)Unsel
435(1 Von Karman Avenue, Suite 20,)
Ne"''Port Beach, Calitornia 92660
(949) 885-8500
to AGENCY:
Redevelopment Agency of the
City of San Ber.Jardino
201 North "E" Street Suite 301
San Bernardino, California 9240]
Attn.: Executive Director
(909) 663-1044
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17.
Acceptance of Agreemeut by the Dev'eloper.
rhe Developer shall acknowledge hs acceptance of this Agreement by delivering thIee
(3) counterpart executed copies or this Agreement signed by at least two (2) authorized officers
of the Developer. Tbe deiivery by the Developer to the Agency of the executed counterpart
copies of this Agreement shall be completed within thirty (30) calendar days following the
approval of this Agreement by the Agency's Board or thereafter this Agreement shall have no
tlmher force and effect with respect to either party.
18. Authority.
This AgreemeDt may be e>.ecuted in counterparts, and when fully executed by the parties,
each such counterpar1 shall be deemed to be one original document. Each signatory to this
Agreement represents and warranlS that he or she has the authority to execute this Agreement on
behalf c.fthe principal whom he l'r she purports to represent.
19. Optional Tenuiuatioll By Developer.
Pro\ide.d the Developer is not in default, the Developer may in its sole and absolute
discrftiou exercise an (.lectioli TO suspend the Project Study, and this Agreement shall t=inate
a..'1d the pa.'"lies "hall b, mutually released from any further obligations hereunder; provided that
the Developer g1v,S thirty (30) calendar days' prior 'Written notice to the Agency and bas paid all
araounts of Agency expense:; that were in,'urrcd by the Agency in reliance upon any separate
'vritte~ agreement or agreements. which may be entered into, wherein the Developer agrees to
reirnb'.'r:ce the Ageroc:! for >pecifically budgeted and identified third party independent
consultants. whicb the Agency may de~ire to retain due to the \lIlavailability of staff to review the
P~'O.jec:l Sttldy.
70, Defaults and Breach - General.
Failure or dci<ty by clther Pol!'!)' to perform aIlY mlterial term or prOYlSlOn of this
Agreement shall coml1tute a default under this Agreement; provided, however, that if the party
who is (,(herwise claiI.U~d to be in default by the other party commences to cure, correct or
remedy the alleged default witbn thirty (30) calendar days after receipt of \"ritkn notice
specifying such defau.!t and shall diligently c=plete such cure, correction or remedy. such party
shall not be deemed TC. be in defauit hereunder.
Tne party, whIch may claim that" default has occurred, shall give written notice of
default to the paIty in ddault and specifying the alleged default. Delay in giving such notice
. shall not constitute ,] waiver of au:" default nor shall it change the time of default: provided,
howevc't, the injured pmy shaH na\ e no right to exercise any remedy for a default as set forth
herein ,,-ithout delivering the written default notice as specified herein.
Any failure 0, delay by a party in asserting any of its lights and remedies as to any
default shall not oper"te as a waiver of any default or of any rights or remedies associated with
such a default.
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In the event that a defatllt of eith<'..r pany may remain uncured for more than thirty (30)
.:alendar days follov.ing written notice, as pro"ide<! above, a "breach" shall be deemed to have
occurred. In the event of a breach, the party who is not in default shall be eutitle<! to seek any
other appropriate remooy by bitiating legal proceedings. The successful party in any such legal
proceroing shall be ~ntitkd to recover its reasonable attorney's fees as an element of its
damages, either as pan of such legal proceedings or in a separate legal action to recover such
attorney's fees lbe co,;is. salaI)' and expenses of the City Attorney and members of his office in
enforcinf1 thi, As-eenlent shaH be considered as "attorney's fees".
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In tbe event tha~ a breach has occurred under tins 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) calendar days following the
date of servJce <if the u0tice of termination on the oth....r party.
21. (;~Y~'erni.n~ La','~ Venne.
The parties heret,) achTlOwledge tha! this Agreement has been negotiated r.nd entere<! into
in rhe State of CalJf('TTll~. TIle p:1!ties herem expressly agree that this Agreemeut shall be
govelDed by, mtelJ'receJ uuder, and construed and enforced In accordance with the laws of the
State of Calitornia. further. the parties to this Agreement hereby agree that any legal actions
arising from this Agreemem shall be filed In Califorcia Superior COUl"'L, in the Court of San
BernardiM. Central Di,trict.
22.Partilllln"alidiry.
If auy ttllU. pruvmoL or portion. of this Agreement or th~ application thereof to any
p~rson or clr=tMlce shall, to any extent, be invalid or Ulle.oiorceable, the remainder of this
Agreement, or the aoplicati()ll or such term or provision or portion thereof to persons or
circumstances other ';'"m 60S'; J.i to which it i; held invalid or lmenforceable, shall not be
affected fr,ereby. and each ~ch term and prcvi;oion of this A...greernent shall be valid and enforced
to the fullest ex,~nt permitted by law.
23.Cl:o Intent to Create Third Party Beneficiaries.
The partte" Wl"r,,! !11al the rigots and (,lbligations under !lus Agreement shall benefit and
burden only the part".::: herde., and do not intend to '-Teate any rig.hts in, or right of action to or
te'r the USf' or bendi! .,f any lhi.cd p"rry, incluJing any governmental agency, who is not olle of
the parti"s to this :\grc'''IlI{']l\.
24. Wahen.
No wai\'er oj any hn:acb of 1U1Y covenant or provision hereJ.U conrain~d shall be deemed a
w<uver cf any precc(li..'1g or oucceeding breach thereof, or of any other covenant or provision
hereilJ. conWIne,1. ~"n extension or' the time for peIfonnance of any obligation or act to be
L.JI!;.'.'flo)- ;:,)1,;0..
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perfoffiled herein shall be deemed to be ilD extension of the time for performance of any other
obligation or act to be per1omlt~d under this Agreement.
25. Entire Agreement.
This Agr<"eIllmt (including aU Exhibits attached hereto) is the final expression of, and
contams the entLre agreement between, the parties with respect to the subject matter hereof and
supersedes all prior understaucli.ngs with respect thereto. This Agreement may not be modified,
changed, supplemented or terroinateJ., 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 pennino.:! herein. This Agreement may be executed in one or more
countrrpam, ""eh ot which shall be an origin.al, and all of which together shall constirote a
singie insu LITHen!.
26. Tinte of Essence.
Exc,~t as pro,-ided in Section 19 of this Agreemt'.nt, time is strictly of the essence vvith
respect to each allJ every ,elm. condition, obligation and pro\1sion hereof and that failure to
timely perform any of the terms, conditions, obligations or provisions hereof by either party shall
constitute a marerial breach of and a non-curable (but waivable) default under this Agreement by
the party so failing t'O perform.
17 Construl~tion.
Headings ill tlle beginnmg of each section, paragraph and subparagraph are solely for the
convenience of the parties and are not a part of this Agreement. Whem:ver required by the
context of this Agreement the singular shall include the plural and the masculine shall include
the feOlinine and VICt: versa. TIlis Agret'.r:uent shall not be construed as if it had been prepared by
one of the parties, bllt rather as if both parties had prepared the Sa.'1Je. Unless otherwise
indicated. all references to ,e.,tions are to flus Agreement. All exhibit, referred to in this
Agreement are attach..d bereto and incorporated herein by this refereuce.
28. AddhiOJnal Miltwr;.
To the greatc~t possible extent, the provisions of this Section 28 shall be read consistent
with the provisions of S,:ctiOll i thrQugh S~crion 27 of this Agreement. However, to the extent
that there is any inwmis,ency between th.~ provisions of ibis Section 28 'tlld the pro,isions of
Section 1 througll Section 27, then the contlictmg provisioIl.S in this Section 28 shall supersede
and control.
a Sinc" July 5. 2005, the sevpe of the Project has beeu retlned, such that the
Developer now plOJ.lo,es to determine the feasibility of developing the Sne as a mLxed-use
development as furws ~et fcmh if: R~cita1 F., and to negotiate with the Agency the potential
terms ofthe Project DDA.
b. The Agency and the City rewgnize that the Project is a major catalyst for the
successful and dfecti .:~ rede"elopm,~ct of downtovm San Bernardmo.
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l'. No~ithstanding the provisions of Section 6.e. of this Agreement, the Agency
shall use its best effons to protect any information submJtted by the Developer as confidential or
proprietary infonnation, as more particularly provided in Section 11 of this Agreement.
d. PriOl to the termination date of this Agreement, the Agency and the Developer
sball diligently :rod ll' good faith pursue the following matters to such conclusion as may be
acceptable to the Agt'nGY and the Developer 1D the sole discretion of each such party: (1)
certification 1->0' th~ Agency's governing board, as the lead CEQ.'\. agency, of the ELR ....ith
respect to tb.e Pmjecl :n accclrdance with CEQA, (2) approval by the Mayor and Common
Council of the City of the Specific Plan for the Project, (3) approval by the Mayor and Common
COUllei! of the City of a Tentative Tract Map encompassing the Project, and (4) approval by the
Mayor ~d Commo!; Council of the C!ty and the governing board of the Agency of the Project
DDA for the Pn'ject. subject to all public h.::aring requirements with respect to each of said
malter,; idef,tificxl as ilo'1lS (n ,hrough (4), inclusi ve.
~ \\TIr:ESS WHEREOf. the und~igned have executed this Agreement on the dates
iDdicat.ed next to "ach d th<;i.; si~'llatures .ti appear below.
DEVELOPER
LNR SAN BER:'-1ARDINO, LLC
a California limited liability company
By' L1'o."R cpr A&D Holdings, LLC
a Delaware limited liablliry company, its member
By: u.m. Commercial Property Investment Fund
Limited Partnership
a Delaware limi.ted partnership, itS member
By: LNR cpr FUlld GP, LLC
a Delaware limited liability company, its general
partner
Date: _~t; /0 '7._ _
By:
Name:
It~:
:ANA S. SANDERS
VICE PRESIDENT
AGEKCY
Rcuevdopment Agency of the City of San
BC'T'.lardmo.
a public body c()rporate. and politic
Date:
By:
Maggie Pacheco, Executive Director
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A PPROVED A So TO FOR..l\l."..ND LEGAL CONTENT:
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Map of Study Area
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Map of Agency Property and Pnvate Property
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SIte Plan from the Specific Plan
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Page I of I
Attorney
From: Julian K. Quattlebaum, III uulian.quattlebaum@channellawgroup.com]
Sent: Wednesday, May 02, 20072:42 PM
To: 'Julian K. Quattlebaum, III'; Empeno_He
Cc: Jon.Dohm@crowncastle.com; 'Joe Robinson'; 'John Beke'; 'Jamie T. Hall'; 'Robert Jystad'
Subject: RE: Continuance of hearing - CUP No. 06-24 and Appeal 07-02
Sorry about my bout of calendar confusion. The message below should have indicated that the original hearing
was scheduled for Monday, May 7, 2007 and that the new hearing date will be Monday, May 21,2007.
From: Julian K. Quattlebaum, III [mailto:julian.quattlebaum@channellawgroup.com]
Sent: Wednesday, May 02,20072:38 PM
To: 'empeno_he@sbcity.org'
Cc: 'Jon.Dohm@crowncastle.com'; 'Joe Robinson'; 'John Beke'; 'Jamie T. Hall'; 'Robert Jystad'
SUbjtict:: Continuance of hearing - CUP No. 06-24 and Appeal 07-02
Mr. Empeno,
This will confirm our conversation of this afternoon in which I indicated to you that neither Crown Castle nor
MetroPCS I Royal Street Communications has any objection to your requested continuance of the hearing
originally scheduled for this Friday, May 9, 2007, to the new hearing date of Friday, May 21,2007, at 4:30 pm.
We appreciate your willingness to research the matters raised in my partner, Robert Jystad's letter to the City
Council.
Julian K. Quattlebaum, III
Channel Law Group, LLP
100 Oceangate
Fourteenth Floor
Long Beach, CA 90802
(310) 356-6950
Fax: (310) 546-9199
Cell: (310) 480-7441
:# it) I ,At c.l. /'","7
~/l/Ol
5/3/2007