HomeMy WebLinkAboutR38-Economic Development Meeting
CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
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FROM; Emil A, Marzullo
Interim Executive Director
SUBJECT:
Watson-Westridge, LLC - Amendment No. I to
the 2005 Disposition and Development
Agreement (144.52-acre residential
development located north of Footbill Drive
and east of Sterling Avenue)
DATE; January 8, 2009
SvnoDsis of Previous Commission/Council/Committee Action(s):
On January 8, 2009, Redevelopment Committee Members Johnson, Baxter and Brinker unanimously voted to recommend that
the Com'munity Development Commission consider this action for approval,
On December 18, 2008, Redevelopment Committee Members Johnson and Baxter unanimously voted to recommend that the
Community Development Commission consider this action for approval,
Recommended Motion(s):
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(Communitv DeveloDment Commission)
Resolution of the Community Development Commission of the City of San Bernardino approving and
authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino
("Agency") to execute Amendment No. I to the 2005 Disposition and Development Agreement by and between
the Agency and Watson-Westridge, LLC ("Developer") (l44.52-acre residential development located north of
Foothill Drive and East of Sterling Avenue)
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Contact Person( s);
Musibau Arogundade
Phone;
(909) 663-1044
4th
Project Area(s);
Supporting Data Attached:
N/A
Ward(s):
Ii] Staff Report 0 Resolution(s) Ii:! Agreement(s)/Contract(s) Ii] Map(s) Ii:! Letter(s)
FUNDING REQUIREMENTS;
Amount: $
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Source:
N/A
N/A
Budget Authority:
Signature;
Emil A. Marzullo,
Fiscal Review:a I).t, ((" ,. -c--:r,c Iv ~
lve Director Barbara Lindseth, Administrative Services Director
Commission/Council Notes:
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P:\Agend.u\Comm Dev Comminion',CDC 2009\01-20-09 Amendment r-;o I to Wauon-Wutridge DDA SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 0112012009
Agenda Item Number: A1t
ECONOMIC DEVELOPMENT AGENCY
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STAFF REPORT
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WATSON-WESTRIDGE, LLC - AMENDMENT NO.1 TO THE 2005 DISPOSITION AND
DEVELOPMENT AGREEMENT (144.52-ACRE RESIDENTIAL DEVELOPMENT LOCATED
NORTH OF FOOTHILL DRIVE AND EAST OF STERLING AVENUE)
BACKGROUND:
On January 6, 2003, the Mayor and Common Council of the City of San Bernardino ("Council") and
Community Development Commission of the City of San Bernardino ("Commission") authorized the
Redevelopment Agency of the City of San Bernardino ("Agency") and the City of San Bernardino Water
Department ("City") staff to solicit proposals for the sale and development of Agency and City property
located north of Foothill Drive and east of Sterling Avenue. The City's property (APN: 0155-361-25)
consists of 136.40 acres and the Agency's property (APN: 0155-381-45) consists of8.12 acres, for a total
of 144.52 acres (the "Site"). In February 2003, the Site was surveyed and appraised. The appraised value
of the City's property was $955,000 and the appraised value of the Agency's property was $203,000 (total
value $1,158,000). This appraisal was based on the value of the raw land without consideration to the fact
that the Site is located within the Foothill Fire Zone and thus, the entire Site is not useable.
On May 8, 2003, Requests for Proposals ("RFP") were mailed to 30 developers and interested parties and
on July 3, 2003, the Agency received two responsive proposals. On July 14,2003, the two developers
made presentations and were interviewed by a panel comprised of Agency Staff, City staff, and Council
....., Member Neil Derry. The panel agreed that J.R. Watson & Associates Development Co. (Watson-
Westridge, LLC) ("Developer") had the most favorable proposal that met or exceeded the RFP
parameters. On October 6, 2003, the Commission approved a 2003 Redevelopment Project Study
Agreement ("2003 Study Agreement") with the Developer to study the development of approximately
107 single-family homes and to pay the Agency $1.2 milli.on for the Site. The Developer has been in
business for 25 years, has developed over 40 major residential and commercial projects, and constructed
the University Village project under a 2005 Disposition and Development Agreement ("DDA") with the
Agency.
On August 15,2005, the Council and the Commission approved the DDA between the Agency and the
Developer. Below are the business points of the DOA:
. The City will sell the I 36.4-acre site to the Agency at the appraised value of $776,000.
. The Agency will sell the entire Site to the Developer for the agreed upon purchase price of $1.2
million.
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. Although the Developer had initially agreed to build 107 single-family homes, due to environmental
and geological factors revealed during the study period, the Developer may be able to develop up to
77 single-family homes and appropriate on- and off-site improvements (approximately 55-acre
grading footprint). The homes will be built on a minimum 10,000 square feet lot with a minimum
2,500 square feet of living space, 3 and up to 7 bedrooms, up to 4 car garages, I and 2-story homes
with multiple floor plans and elevations. . In addition, the balance of the acreage will be developed
P\AgendasIComm~" Commission\CDC 2009',01.20-09 Amendment So ] 10 W.tson.WeJtridge DDA SRdOl: COMMISSION MEETING AGENDA
Meeting Date: 0112012009
Agenda Item Number: ~
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Economic Development Agency Staff Report
Amendment No.1 - Watson-Westridge. LLe
Page 2
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..... . with walking and hiking trails, monumental entry ways, 2 gazebos, a passive park, and open space.
The development will be a private and gated community and the common landscape and
improvements would be maintained through a maintenance district.
. The Developer agreed to match City funds of up to $200,000 to improve and enhance landscaping and
public improvements on Del Rosa Avenue, a major thoroughfare into the proposed development Site
(presently it is understood that the City has budgeted or will budget an equal sum in the City's Capital
Improvement Program budget to assist with the accomplishment of the enhancement improvements
which are vital to the success of the proposed development).
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· The Agency will be required in the DDA to pay not more than $56,000 for the acquisition of the
property from the County Flood Control District. This $56,000 figure represents the amount that will
be paid by the Developer, which is in excess of the appraised value of the Site. The Agency property
and the City property are not contiguous but are separated by property owned by the County Flood
Control District and used for a flood control basin and the storage or excavated materials from the
basin. It is anticipated that two lots in the Agency property will be exchanged for additional land or
an easement on the land of the County Flood Control District that is adjacent to the City property to
allow for the acquisition of the portion of the County property to thus connect the Agency property
. with the City property by an on-site street or a street easement that will be owned and maintained by
the Homeowner's Association (HOA). The appraisal assumed the "as is" value of the two parcels
consisting of the Agency property and the City property whereas the intended use requires that these
parcels be connected with an access road. To the extent that the $82,000 figure is not needed, the
Agency will retain the excess amount; if this amount is insufficient to acquire all the County property
as needed, then the Developer must pay the additional amounts or cancel the DDA and the escrow for
the purchase of the Site.
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· The Developer has committed to donate $50,000 to the Literacy Program managed by California State
University at San Bernardino ("CSUSB").
CURRENT ISSUE:
Since the approval of the DDA, the Developer has:
· Expended over $1.2 million for site investigations that include earth trenching and boring, soils
investigation, geology, topography, lot creation and grading studies, preparation of several tentative
maps and environmental studies;
· Reduced development from 107 to 72 lots due to environmental, geological factors, the City required
the Hillside Management Overlay District Code which minimizes the effect of grading and ensures
that the natural character of the hillside area is retained;
· Submitted a complete application for design review to the City, however, all new applications will
have to be resubmitted as a result of new geological, environmental findings;
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P:lAgendasTomm ~~' Commission ,(DC 2009.Q1.,2o.09 Amendment ~o ] to Watson.W"tridge DDA SR.,doc;
COMMISSION MEETING AGENDA
Meeting Date: 0112012009
Agenda Item Number: ~
Economic Development Agency Staff Report
Amendment No.1 - Watson-Westridge, LLC
Page 3
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. Donated $50,000 to the Literacy Program managed by CSUSB, as required by Section 2.IO(b) of the
DDA;
. Entered into and committed to an Agreement with V A Consulting and other engineering firms to
conduct aerial photographs, environmental, soils and geological studies, numeroUS variations of
workable lot studies and tentative maps, modifications to rough grading plans, infrastructure studies,
design and plotting studies, tentative tract map, final tract map and public improvement plans for the
property, addressing and recognizing the new environmental and geological findings;
. Secured an Agreement with the East Valley Water District with regard to the provision of water
service to the property and the location of certain water facilities.
As a result of the above progress and investment of time and money, the Developer is requesting a five-
year extension of the DDA to December 31, 2013 (See attachment). Agency Staff has reviewed the
Developers request and has had discussions with the Developer and the City with all parties agreeing to a
one-year extension of the DDA with a four-year first right of refusal to acquire the property. The one-
year extension of the DDA with a four-year first right of refusal will prevent the property from being tied
up for another five years and provide the Developer the right to be notified and exercise the option of
acquiring the property in the event the Agency or the City decides to put the property into any other
public or private use during the next five years.
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ENVIRONMENTAL IMPACT:
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A revised Initial Study is being prepared for the proposed development and will be distributed to affected
agencies in accordance with the California Environmental Quality Act (CEQA). Because there are
potential impacts, it is proposed that the Commission and the Council will consider the adoption of a
Mitigated Negative Declaration when the revised Initial Study is completed.
FISCAL IMPACT:
As described above under Background.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
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Emil A. Marzu o,Titerim Executive Director
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P\AgendasTomm Dc\' Commission',CDC 200901-20-09 Amendment r-;o Ito Wauon-Westrid~ DOA SR,doc
COMMISSION MEETING AGENDA
Meeting Date: 0112012009
Agenda Item Number:
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE AMENDMENT NO. 1 TO THE 2005
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN
THE AGENCY AND WATSON-WESTRIDGE, LLC, ("DEVELOPER")
(144.52-ACRE RESIDENTIAL DEVELOPMENT LOCATED NORTH OF
FOOTHILL DRIVE AND EAST OF STERLING AVENUE)
8 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a
9 public body, corporate and politic existing under the laws of the State of California, Health and
10 Safety Code 33101, and is charged with the mission of redeveloping blighted and underutilized
11 land pursuant to Health and Safety Code Section 33396; and
12 WHEREAS, on August 15, 2005, the Mayor and Common Council and Community
13 Development Commission approved the 2005 DDA for the disposition and development of 144.52
14 acres of land for residential development north of Foothill Drive and east of Sterling Avenue for
15 $1.2 million; and
WHEREAS, since the approval of the 2005 DDA, the Developer has:
. Expended over $1.2 million for site investigations that include earth trenching and
boring, soils investigation, geology, topography, lot creation and grading studies,
preparation of several tentative maps and environmental studies;
. Reduced development from 107 to 72 lots due to environmental, geological factors, the
City required Hillside Management Overlay District Code which minimizes the effect 0
grading and ensures that the natural character of the hillside area is retained;
. Submitted a complete application for design review to the City, however, all new
applications will have to be resubmitted as a result of new geological, environmental
findings;
. Donated $50,000 to the Literacy Program managed by CSUSB, as required by Section
2.1O(b) of the DDA;
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. Entered into and committed to an Agreement with V A Consulting and other engineering
firms to conduct aerial photographs, environmental, soils and geological studies,
numerous variations of workable lot studies and tentative maps, modifications to rough
grading plans. infrastructure studies, design and plotting studies, tentative tract map, final
tract map and public improvement plans for the property, addressing and recognizing the
new environmental and geological findings; and
. Secured an Agreement with the East Valley Water District with regard to the provision
of water service to the property and the location of certain water facilities.
WHEREAS. the 2005 DDA will expire on August 15, 2009, and the Developer has
requested a five-year extension of the 2005 DDA to December 31. 2013 to allow for the completion
11 of site investigations and development; and
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WHEREAS, Agency Staff and the Developer after discussions, has agreed to a one-year
13 extension with a four-year first right of refusal to acquire the property which is the subject of
1~ Amendment No. I to the 2005 DDA; and
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WHEREAS. Amendment No. I will prevent the Property from being tied up for five years
16 and provide the Developer the right to be notified and exercise the option of acquiring the Property
17 in the event the Agency or the City decides to put the Property into other public or private use; imd
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WHEREAS, a revised Initial Study is being prepared for the proposed development and
19 will be distributed to affected agencies in accordance with the California Environmental Quality
20 Act (CEQA). Because there are potential impacts, it is proposed that the Commission and the
21 Council will consider the adoption of a Mitigated Negative Declaration when the revised Initial
22 Study is completed; and
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24 No. I and approve Amendment No. I to the 2005 DDA as set forth in this Resolution.
WHEREAS, it is appropriate for the Commission to take action with respect to Amendment
NOW, THEREFORE. THE COMMUNITY DEVELOPMENT COMMISSION OF THE
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CITY OF SAN BERNARDINO DOES HEREBY RESOLVE. DETERMINE AND ORDER, AS
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1 Section 1. The Commission hereby approves Amendment No. I to the 2005 DDA The
2 Interim Executive Director is hereby authorized and directed to execute Amendment No. I to the
3 2005 DDA on behalf of the Agency together with nonsubstantive and conforming changes as may
4 be recommended by the Interim Executive Director and Agency Counsel. The Interim Executive
5 Director is hereby authorized to take all appropriate actions as set forth in Amendment No. I to the
6 2005 DDA to implement the disposition and redevelopment of the Site.
7 Section 2. This Resolution shall take effect from and after its date of adoption by this
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20 The foregoing Resolution is hereby approved this
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25 Approved as to Form:
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
("AGENCY") TO EXECUTE AMENDMENT NO. 1 TO THE 2005
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN
THE AGENCY AND WATSON-WESTRIDGE, LLC, ("DEVELOPER")
(144.52-ACRE RESIDENTIAL DEVELOPMENT LOCATED NORTH OF
FOOTHILL DRIVE AND EAST OF STERLING AVENUE)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a
meeting
Secretary
day of
,2009.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
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AMENDMENT NO.1
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TO
2005 DISPOSITION AND DEVELOPMENT AGREEMENT
(Watson-Westridge, LLC)
THIS AMENDMENT NO. I TO 2005 DISPOSITION AND DEVELOPMENT AGREEMENT
(the "Amendment No. I"), dated as of January 20, 2009, is entered into by and between the
Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the
"Agency") and Watson-Westridge, LLC, a California limited liability company (the "Developer").
The Agency and the Developer agree as follows:
RECITALS
WHEREAS, the Agency and the Developer have executed and entered into the 2005
Disposition and Development Agreement, dated as of August 15,2005 (the ,"2005 DDA"); and
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WHEREAS, the Agency and the Developer desire to amend the 2005 DDA pursuant to the
terms. covenants and conditions of this Amendment No. I (the 2005 DDA. as amended by this
Amendment No. I shall be referred to as the "Agreement").
'-. NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS MENTIONED ABOVE,
THE MUTUAL PROMISES OF THE AGENCY AND OF THE DEVELOPER IN THIS
AMENDMENT NO. I AND FOR OTHER GOOD AND VALUABLE CONSIDERATION THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY THE
AGENCY AND BY THE DEVELOPER, THE AGENCY AND THE DEVELOPER AGREE AS
FOLLOWS:
1.
reference.
Recitals. The Recitals of this Amendment No. I are incorporated herein by this
2, Definitions. Initially capitalized terms in this Amendment No. I shall have the
meanings as provided in the 2005 DDA except for those terms specifically defined in the introductory
paragraph of this Amendment No. I. in the recitals and/or in this Amendment No. I.
(a) The term "sold", "sell" or "sale" shall include a sale of or grant of an option to
buy the Property or any portion thereof or any interest therein by a private party and specifically
excluding any governmental entity. Any such sale to any party other than an affiliate of the Developer
or to a governmental entity shall be referred to herein as a "DisDosition."
(b) The term "offer" shall include, without limitation. any bona fide option
proposed to be granted by the Agency.
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(c) The term "affiliate" shall mean as to the Person (as hereinafter defmed) in
question, any Person that directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with the Person in question. As used in the immediately
preceding sentence, "control" means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person, whether through ownership of voting
securities, partnership interests, by contract or otherwise.
(d) The term "Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust, estate, unincorporated
organization or any other form of entity. The term Person shall specifically exclude any governmental
agency, political subdivision, municipal corporation, governmentally controlled non-profit corporation
or other pubic entity that intends to make use of the Property for a governmental use or other public
purpose.
(e) The term "Quitclaim Deed" shall mean the "Quitclaim Deed" to be executed and
acknowledged by the Developer to the Agency, in recordable form for recordation in the official
records of the county recorder's office for the County of San Bernardino, State of California, in
accordance with Section 6 of this Amendment No. I, a copy of which is attached hereto and
incorporated herein by this reference as Exhibit "B".
(f) The term "2005 DDA Expiration Date" shall mean the date that the term of the
2005 DDA expires pursuant to Section 3 of this Amendment No. I, or earlier terminates in accordance
with the terms, covenants and conditions of the 2005 DDA, as amended by this Amendment No. I.
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(g) The term "Release Agreement" shall mean the Release Agreement to be
executed by and between the Developer and the Agency, a copy of which is attached hereto and
incorporated herein by this reference as Exhibit "A".
(h) The term "Right of First Refusal Term" means the period commencing on the
2005 DDA Expiration Date and expiring four (4) years thereafter on August 15,2014, unless sooner
terminated in accordance with the 2005 DDA, as amended by this Amendment No. I, including the
transfer or commitment to a public use by either the San Bernardino Municipal Water Department (the
"Water Department") or the Agency of their respective portions of the Property, or any other
governmental agency, political subdivision, municipal corporation, governmentally controlled non-
profit corporation or other public entity that intends to make use of the Property for a governmental use
or other public purpose.
(i) The term "Property" as used herein includes real property owned by the Water
Department and real property owned by the Agency. Nothing contained in this Amendment No. I
shall preclude either the Water Department or the Agency from transferring their respective portions of
the Property, either separately, as single transactions or as a combined transaction to any other
governmental agency, political subdivision, municipal corporation, governmentally controlled non-
profit corporation or other public entity that intends to make use of the Property for a governmental use
or other public purpose. The Water Department and the Agency may additionally retain their
respective portions of the Property and commit such portions to a public use either separately, as single
transactions, or as a combined transaction. Any such public use or transfer in accordance with the
'-. preceding sentences of either or both portions of the Property shall relieve the Agency of any further
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compliance requirements with the restrictions of this Amendment No. I upon such transfer or
commitment to a public use by either the Water Department or the Agency of either or both of their
respective portions of the Property.
3. Term of the Al!Teement. The term of the Agreement shall be extended one (I) year
from August 15, 2009, to August 15, 2010. The term of the Agreement shall expire on August 15,
2010, subject to any earlier termination as provided for in the 2005 DDA, as amended by this
Amendment No.1.
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4. Initial Purchase Oooortunitv. Subject to the terms and conditions below, should the
Agency at any time during the Right of First Refusal Term desire to make a Disposition with respect to
all or any portion of the Property or any interest therein (the Property, or such portion thereof, or such
interest therein being hereinafter referred to as the "Offered Prooertv"), then the Agency shall give the
Developer written notice of such intention, and the Agency and the Developer, for a period of thirty
(30) calendar days after the Developer's receipt of such notice, shall negotiate in good faith to reach an
agreement and the price, terms and contract form pursuant to which the Developer will purchase the
Offered Property. If the Agency and the Developer are not able to reach an agreement for such
purchase and sale within such thirty (30)-calendar day period, the Agency, subject to the terms of this
Amendment No.1, may market the Offered Property to persons or entities other than the Developer.
Any such process initiated by the Agency with third parties after the 2005 DDA Expiration Date for
the remaining Right of First Refusal Term pursuant to this Section 4, after providing the Developer
with the aforesaid notice, may be consented to, approved and executed by the Agency with any third
party, subject to the Agency's compliance with Section 5 below, affording the Developer the First
Refusal Right (as defined below).
5. First Refusal. Subject to the terms and conditions set forth below, if the Agency at any
time after the 2005 DDA Expiration Date and for the remaining Right of First Refusal Term receives a
bona fide offer acceptable to the Agency, or makes a bona fide offer acceptable to an offeree, for a
Disposition of the Offered Property, then the Developer shall have the right and option, but not the
obligation, to purchase the Offered Property (the "First Refusal Right") on the following terms and
conditions:
(a) The Agency shall provide the Developer with a. written notice (the "Agencv
Notice") which shall (i) set forth the true identity of the proposed purchaser (including the identity of
the principals of the purchaser, if known to the Agency), (ii) include a description of the Offered
Property, (iii) include a description of all material terms of the proposed Disposition, including,
without limitation, the price, earnest money, due diligence inspection period and closing date, and (iv)
offer to consummate such Disposition with the Developer upon the same terms and conditions as set
forth in the Agency Notice. The Agency Notice shall have attached to it a true, correct and complete
copy of the contract of sale or other agreement that governs the rights and obligations of the Agency
and the proposed purchaser with respect to the proposed Dispositions (the "Disoosition Document')
Any time periods in the Agency Notice shall be deemed extended as necessary to allow the Developer
the full thirty (30)-calendar day period following receipt of the Agency's Notice in which to decide
whether to exercise the Developer's First Refusal Right.
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(b) During the thirty (30)-calendar day period following the Developer's actual
receipt of the Agency Notice (the "Response Period"), the Developer shall notify the Agency in
writing of the election by the Developer to purchase or to not purchase the Offered Property. If the
Developer elects to not purchase the Offered Property by delivering written notice of such election to
the Agency within the Response Period, the Agency may effect a Disposition of the Offered Property
to the proposed purchaser identified in the Agency Notice (i) at a price that is not less than ninety-five
percent (95%) of the price that would have been paid by the Developer if the Developer had elected to
purchase the Offered Property pursuant to the Agency Notice, and (ii) upon other terms and conditions
that are not more favorable to the proposed purchaser than those offered to the Developer in the
Agency Notice, provided such closing occurs with the third party purchaser of the Offered Property no
later than one hundred eighty (180) calendar days after the expiration of the Response Period, and
further provided that if such closing to the proposed purchaser does not occur within such one hundred
eighty (180)-calendar day period, the Agency shall again be required to comply with this Section 5
before it makes any other Disposition of the Offered Property. Such Disposition of the Offered
Property, if made in accordance with this Amendment No. I, shall be made free and clear of this
Amendment No. I but this Amendment No. I shall remain applicable to the remainder of the Property
during the remaining Right of First Refusal Term, and the Developer, at the request of the Agency,
shall execute and deliver to the Agency the Release Agreement prior to the date of the actual
Disposition of the Offered Property insofar as it pertains only to the Offered Property that is so
conveyed.
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(c) If the Developer does not elect to accept the Agency's offer with respect to a
Disposition in accordance with the terms hereof, and such Disposition from the Agency is not made on
the price and terms set forth in Section 5(b) above subject to the maximum one hundred eighty (180)-
calendar day closing period and other terms set forth above, this Amendment No. I shall remain in full
force and effect with respect to the Offered Property.
(d) If the Developer exercises the First Refusal Right by delivering written notice of
such exercise to the Agency within the Response Period, the Developer and the Agency shall close the
purchase and sale of the Offered Property in accordance with the terms set forth in the Agency Notice
and the Disposition Document.
(e) Notwithstanding any provision contained herein to the contrary, in the event: (i)
the Developer does not elect to accept the Agency's offer, (ii) the Agency sells the Offered Property
pursuant to the terms of this Amendment No. I, and (iii) the Agency retains a lien on the Offered
Property and forecloses such lien prior to the expiration of the Right of First Refusal Term, the rights
of the Developer under this Amendment No. I with respect to the Offered Property shall be
automatically reinstated, and the Agency shall not consummate any further Disposition of the Offered
Property without again complying with the terms of Section 5 herein.
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6. General Provisions. The Agency and the Developer restate and reaffirm the terms,
covenants and conditions of the 2005 DDA. All of the terms, covenants and conditions of the 2005
DDA are in full force and effect except as modified by this Amendment No. I. In the event of any
inconsistency, contradiction or ambiguity between the terms, covenants and conditions of the 2005
DDA and this Amendment No. I, the inconsistency, contradiction or ambiguity shall be resolved in
favor of this Amendment No. 1. This Amendment No. I may not be amended except by written
agreement executed by the Agency and by the Developer, is binding on the parties hereto and their
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permitted successors and permitted assigns, and shall be governed by the laws of the State of
California. The illegality, invalidity or unenforceability of any provision of this Amendment No. I
shall not affect the legality, validity or enforceability of any other provision of this Amendment No.1.
The Agency and the Developer have the authority to execute, deliver and perform this Amendment No.
t and the persons executing this Amendment No. 1 on behalf of the Agency and/or of the Developer
have the authority to bind the Agency and the Developer to this Amendment No. .1. This Amendment
No. I shall bind and run with the Property but shall not be appurtenant to any other property. Upon the
expiration of the Right of First Refusal Term or earlier upon the sale of the Property to a third party as
permitted pursuant to this Amendment No. I, the Developer shall deliver to the Agency the Quitclaim
Deed, as executed and acknowledged by the Developer, in recordable form for recordation in the
official records of the county recorder's office for the County of San Bernardino, State of California,
reasonably acceptable to the Agency and to a title insurance company to evidence the termination of
this Amendment No. I and the termination of any further rights of the Developer pursuant hereto with
respect thereto.
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5
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IN WITNESS WHEREOF, the Agency and the Developer hereto have duly executed
'_ this First Amendment as of the date first written above.
AGENCY
The Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Dated:
By:
Emil A. Marzullo, Interim Executive Director
Approved as to Form and Legal Content:
B, , t-4
Ag~y Counsel
DEVELOPER
Watson-Westridge, LLC,
a California limited liability company
By:
Name:
Title:
Dated:
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....
6
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Exhibit " A"
Release Agreement
7
P\Agendas'Agenda Anachments'Agenda Anlchment5"Agenda Anachments'Agrmts-A.mend 2009\01-20-09 Watson-Wntridge. LLC - Amendment No 1 FP.\AL,doo:
RELEASE AGREEMENT
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THIS RELEASE AGREEMENT (the "Agreement") is entered into as of this _ day of _,
200_, by and between Watson-Westridge, LLC, a California limited liability company (the
"Developer") and the Redevelopment Agency of the City of San Bernardino, a public body, corporate
and politic (the "Agency"), in light of the facts set forth in the following recitals. In this Agreement,
the Agency and the Developer may each be referred to as a "Party" and may collectively be referred to
as the "Parties."
RECITALS
WHEREAS, the Agency and the Developer have executed and entered into that certain 2005
Disposition and Development Agreement, dated as of August 15, 2005 (the "2005 DDA"); and
WHEREAS, the Agency and the Developer have executed and entered into that certain
Amendment No. I to the 2005 DDA, dated as of , 200_ (the "Amendment No. I "); and
WHEREAS, the Amendment No. I provides, without limitation, that: (i) the Developer has a
First Refusal Right to purchase from the Agency the Offered Property during the Right of First Refusal
Term, (ii) the Developer may elect to purchase or to not purchase the Offered Property, (iii) the
Agency shall have the right to sell the Offered Property to an individual or to an entity who is not the
Developer nor an affiliate of the Developer should the Developer elect not to purchase the Offered
Property, and (iv) at the request of the Agency, the Developer shall execute and deliver to the Agency
this Agreement should the Developer elect not to purchase the Offered Property; and
'"
WHEREAS, in accordance with the 2005 DDA, as amended by the Amendment No. I: (i) the
Agency has offered to sell the Offered Property to the Developer, (ii) the Developer has notified the
Agency, in writing, of its election to not purchase the Offered Property, (iii) the Agency has sold or
will sell the Offered Property to a person or entity that is not the Developer nor an affiliate of the
Developer, and (iv) the Agency has requested the Developer to execute and deliver to the Agency this
Agreement; and
WHEREAS, in accordance with the 2005 DDA, as amended by Amendment No. I, the
Developer has agreed to release all right, title and interest in the Offered Property and in all other
Released Claims (as defined below) in accordance with this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE,
AND FOR SUCH OTHER GOOD AND VALUABLE CONSIDERA nON, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY AND BETWEEN THE
AGENCY AND THE DEVELOPER, THE AGENCY AND THE DEVELOPER AGREE AS
FOLLOWS:
....
I. Recitals and Definitions. The Recitals set forth above are true and correct and are
incorporated herein by this reference. Initially capitalized terms not defined in this Agreement shall
have the meanings set forth in the Amendment No. 1. This Agreement will become effective on the
date (the "Effective Date") that this Agreement has been approved and duly executed by the
appropriate representatives of the Developer and of the Agency.
8
P \Agendas"Ascnda Anachmcnls'Agenda Anachmcnts\Agenda Attachments Agnnls-Amcnd 2009101-20-09 Wauon-Wnlridge, ltC . AmmdlMnl No 1 FfSALdoc
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'_. 2. Release. The Developer does hereby fully, completely, finally and forever release and
discharge the Agency and its respective officers, partners, members, agents, employees, attorneys,
successors, heirs, and assigns from any and all right, title or interest in the Offered Property, including,
without limitation, any claims, actions, causes of action, demands, rights, debts, promises, liabilities,
damages, accountings, costs and expenses, whether known or unknown, suspected or unsuspected, of
every nature whatsoever, whether now or hereafter existing, which the Developer has or may have
against the Agency with respect to any and all matters arising out of or in connection with the Offered
Property (all of which released matters shall collectively be referred to as the "Released Claims" and
singularly as the "Released Claim"). This release provision shall survive the execution, delivery,
performance and early termination of the 2005 DDA, as amended by the Amendment No.1.
IT IS THE INTENTION OF THE DEVELOPER HERETO THAT THIS AGREEMENT
SHALL BE EFFECTIVE AS A FULL AND FINAL RELEASE OF EVERY RELEASED CLAIM.
IN FURTHERANCE OF THIS INTENTION, THE DEVELOPER ACKNOWLEDGES THAT THE
DEVELOPER HAS BEEN ADVISED BY LEGAL COUNSEL FOR THE DEVELOPER OF THE
LEGAL EFFECT OF THIS AGREEMENT.
The Developer acknowledges that hereafter the Developer may discover facts in addition to, or
different from, those that the Developer now knows or believes to be true with respect to the subject
matter of this Agreement and the Released Claims, but that, notwithstanding the foregoing, it is the
intention hereby of the Developer to fully and forever settle and release each of the Released Claims,
and that in furtherance of this intention, this release herein given shall be and remain in effect as a full
and complete release.
3. Ownershio of Released Claims. The Developer hereby represents and warrants to the
Agency, as to any Released Claim, the Developer is the sole and absolute owner of each Released
Claim released by the Developer, free and clear of all other rights and interest therein, and has the
right, ability and sole power to release said Released Claims. The Developer has not, and will not,
transfer, convey, assign, encumber, pledge or hypothecate the Released Claim, or any interest therein.
4. Attornevs' Fees. In the event there is any dispute concerning or arising out of the
terms of this Agreement or the performance by the Developer hereto with respect to the terms of the
Agreement, the prevailing Party in such dispute shall be entitled to recover, in addition to its costs, all
attorneys' fees, court costs and expenses reasonably incurred in connection with the dispute. Further,
if any action is taken, the Developer agrees to submit to the jurisdiction of the courts of San
Bernardino County, State of California. .
5. Counteroarts. The Agreement may be executed in one (I) or counterparts, each of
which shall be deemed an original, and all taken together, shall constitute one and the same original
Agreement.
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6. Severabilitv. If any provision of this Agreement is held, determined or adjudicated to
be illegal, invalid or unenforceable for any reason by any court of competent jurisdiction, such
provision shall be severed from the remaining provisions of the Agreement and shall not affect thevalidity or enforcement of the remaining provisions.
"".
9
P\Agendas'Agcnda AnOKhmcnts\AgelKla Attachmenl$'~nda Atuchments'Agnnts-Amend 2009'.01.20.09 Wal$On-Wemidgc, LtC. Amendment NQ I F~ALdoc
7. Intel!ration. The Developer and the Agency hereby expressly agree that this
'- Agreement constitutes the entire agreement between the Parties relating to the release by the Developer
of the Released Claims. This Agreement supersedes all prior negotiations, promises, covenants,
agreements and representations, if any, between the Parties relating to the release by the Developer of
the Released Claims.
8. Controllin2 Law. This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of California.
9. Section titles. The section titles in this Agreement are used for convenience only by the
Parties and are not to be taken as part of the instrument or used to interpret this Agreement.
10. Internretation. Whenever the context of this Agreement so requires, the masculine
shall include the feminine, or neuter, the feminine shall include the masculine or neuter, the neuter
shall include the masculine or feminine, the singular shall include the plural and the plural shall
include the singular.
II. Amendment. This Agreement may not be altered, amended, modified, or otherwise
changed in any respect, except by a writing executed by an authorized representative of each Party.
_.
12. Authorization. The Agency and the Developer represent and warrant to one another
that each Party has the authority to execute, deliver and perform this Agreement and that each Party
has taken all necessary action to approve this Agreement. The undersigned, by their signatures,
represent and warrant that they are authorized agents of their respective entities and are authorized to
execute this Agreement.
13. Successors. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, executors, administrators, trustees, heirs, personal
representatives and assigns.
End of Page
_.
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P:\Agendas\Agenda Attachments'Agenda Attaclunenls'.Agenda Anaehment5..Agnnt~Amm:l2009'OI.2(l.09 Walson-Westridge, LLC . Amendment J'oio I FINAL_doc:
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IN WITNESS WHEREOF, the Parties hereto execute this Agreement as of the date first written
above.
DEVELOPER
Watson-Westside, LLC,
a California limited liability company
Dated:
By:
Name:
Title:
AGENCY
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Dated:
By:
Emil A. Marzullo, Its Interim Executive Director
Approved as to Form and Legal Content:
By:
Agency Counsel
11
P"Agendas'Agenda Anachmems'.o\gf:nda AttKhmenls'Agenda Anachrnenn'AgrmIs-Amend 2009\OI-2~ Willson-Westridge, LLC - Amendment No_ I FINAL doc
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Exhibit" A"
The Offered Property
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P\Agendas'Agenda Attaclllntms~ndi. Attachments"Agenda Attachmenls'Agrmts-Amend 2009',01.20-09 Wal50n-We.$Iridgt:. LLC. Amendment!l:o 1 FISAL doc
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Exhibit "B"
Quitclaim Deed
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P,\Agendas'Asenda Anachmems\Apnda Anachments\Agcnda Anachmcnts'AgrmI:w-Amend 2009'OI-2Q..09 W"tilOlI-Weuridgc, LLC. Amendment No 1 FD<ALdoc
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RECORDING REQUESTED BY:
"....
When Recorded Mail Document
and Tax Statement To:
Redevelopment Agency
of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 9240 I
Attn.: Interim Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
QUITCLAIM DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Watson-
Westridge, LLC, a California limited liability company (the "Grantor"), hereby remises, releases and
quitclaims to the Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Agency") the following described real property in the City of San Bernardino, County of
San Bernardino, State of California:
-
See attached Exhibit "A"
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IN WITNESS WHEREOF, the Grantor has caused this Quitclaim Deed to be executed
by its authorized officer as of the date indicated next to the signature, below. .
Watson-Westridge, LLC,
a California limited liability company
Dated:
By:
Name:
Title:
[NOTARY ACKNOWLEDGMENT TO BE ATTACHED]
Approved as to Form and Legal Content:
By:
Agency Counsel
"'",
14
Y.\Agendas'.'\t!enda Attac;hments'Agenda Attachments"'~genda AnacllmenlsAgrmtr.-Amend 2009\01-20-09 WlllsorrWestridge, LLC. Amendment 1'00 I F~AL,doc
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ACCEPTANCE OF QUITCLAIM DEED BY
THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
The undersigned officer of the Redevelopment Agency of the City of San Bernardino, a public
body, corporate and politic, hereby acknowledges on behalf of the Agency acceptance of the delivery
of the subject property from Watson-Westridge, LLC, a California limited liability company.
Redevelopment Agency of the City of San Bernardino.
a public body, corporate and politic
Dated:
By:
Emil A. Marzullo, Interim Executive Director
[NOTARY ACKNOWLEDGMENT TO BE ATTACHED]
15
P "Al!tnda$'Asenda AnaciuncnU'A8cnda Anachmenl$\Agcncla Attachments Agrmts-Amcnd 2009\0] -2Q...09 Wllson-Westrid!!c. LLC . Amendment ~o ] FrNALdoc
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Exhibit" A"
Legal Description of the Property
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P-lAgendu\Agmda Attachmen.l$\Agfllda Anac:htnenu\Agenda Attachmenu'Asrmu.-Amend 2009\01-20-09 WllSon-westridgc, LLC.. Amendment No I flNALdoc