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HomeMy WebLinkAbout27-Community Development CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION Date: June 30, 20 II Subject: A Resolution of the City of San Bernardino approving an amendment to Development Agreement No. 91-01 between the City of San Bernardino and the developer of the Inland Center Mall. The project site is located at 500 South Inland Center Drive. (DA No. 08-01) From: M. Margo Wheeler, Director Dept: Community Development MCC Date: July 18, 2011 Synopsis of Previous Council Action: April I, 1996 - The Mayor and Common Council approved Development Agreement No. 91-01 (Resolution No. 96-84) and certified an Environmental Impact Report (SCH #94032045) which granted the developer the right to expand the Inland Center Mall. November 3, 1997 - The Mayor and Common Council upheld the Planning Commission's denial of an appeal of the approval of Development Permit 2 No. 97-13 to initiate Phase I of the expansion of the Inland Center Mall. Recommended Motion: Tho< ,"0 h~,j"" '" d,""', "od fuo< "id ""I,,,," ho 'd'P:!( WJ ~ M. Margo Wheeler, AICP Contact Person: Aron Liang, Senior Planner Phone: 3332 Supporting data attached: StafT Report Ward(s): 3 FUNDING REQUIREMENTS: Amount: N/A Source: Acct. Description: Finance: Council Notes: Agenda Item No. ::5"3 ()1-/~-~I/ iltpl1UlJM~f Pay CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION STAFF REPORT Subject: A Reso]ution of the City of San Bernardino approving an amendment to Deve]opment Agreement No. 91-0] between the City of San Bernardino and the developer of the In]and Center Mall. The project site is located at 500 South In]and Center Drive. (Development Agreement Amendment No. 08-0]) Applicant: WM Inland LP C/O: Arun Parmar 500 Inland Center Drive San Bernardino, CA 92408 Representative: Gresham Savage No]an & Ti]den C/O: Mark Ostoich 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408 Background: On June 22, 20]], the Planning Commission recommended that the Mayor and Common Council approve Deve]opment Agreement Amendment (DA) No. 08-0] to extend and amend the Deve]opment Agreement enacted on April ], 1996, for a phased expansion of the Inland Center Mall, requiring completion of Phase] in 2026 and commencement of the final Phase II by 2031. Proposed amendments include substitution of current Deve]opment Code parking standards for the more stringent requirement in the existing Agreement, and incorporation of minor modifications to the project site caused by the recent widening of 1-215. The subject site is a 61-acre regional mall located at 500 South Inland Center Drive in the CR-], Commercial Regional Malls land use district. The applicant/representative requests that the Mayor and Common Council approve Development Agreement Amendment No. 08-01 as recommended by the Planning Commission at their meeting of June 22, 20]]. The Planning Commission voted unanimously in favor of the proposed development agreement amendment. Commissioners Eble, Heasley, Jimenez, Machen, Mulvihill and Rawls voted in favor of the motion and Commissioners Coute and Durr were absent. Due to current economic conditions, expansion for the Mall as anticipated in Development Agreement No. 9]-0] has been challenging. The applicant/representative requests that the completion dates for Phases I and II be extended and that minor clarification and updates be added to simplify certain sections of the agreement, to enhance processing of further expansion of the Mall. The Planning Commission staff report (Attachment 1) contains a more detailed analysis of DA 08-0 I. California Environmental Quality Act (CEQA) Compliance: An Environmental Impact Report (SCH #94032045) was prepared to analyze all potentia] impacts related to approval of Development Agreement No 91-0] in compliance with CEQA requirements and Section ]9.20.030 (6) of the Deve]opment Code. Findings of Fact and a Statement of Overriding Considerations were adopted in accordance with guidelines for the implementation of CEQA. All future development described in the subject agreement will be required to incorporate applicable mitigation measures from the EIR. 2 Financial Impact: None. Recommendation: That the hearing be closed and that the resolution be adopted. Attachment I: Planning Commission Staff Report Dated June 22, 20 II Resolution 3 ATTACHMENT 1 PLANNING COMMISSION STAFF REPORT CITY OF SAN BERNARDINO PLANNING DIVISION CASE: AGENDA ITEM: HEARING DATE: WARD: Development Agreement Amendment No. 08-01 I June 22, 20 II 3 OWNER: WM Inland Investors IV, LLC 401 Wilshire Blvd. No. 700 Santa Monica, CA 90401 APPLICANT: Arun Parmar 500 Inland Center Drive San Bernardino, CA 92408 REPRESENTATIVE: Gresham Savage Nolan & Tilden C/O: Mark Ostoich 550 East Hospitality Lane, Ste. 300 San Bernardino, CA 92408 REQUEST/LOCATION: A request to extend and amend the Development Agreement enacted on April I, 1996, for a phased expansion of the Inland Center Mall, requiring completion of Phase I in 2026 and commencement of the final Phase II by 2031. Proposed amendments include substitution of current Development Code parking standards for a more stringent requirement in the Agreement, and incorporation of minor modifications to the project site caused by the recent widening of 1-215. The subject site is a 61-acre regional mall located at 500 South Inland Center Drive in the CR-I, Commercial Regional Malls land use district. Project Assessor Parcel Number(s): 0136-531-01-02, 07-09 CONSTRAINTS/OVERLAYS: Freeway Corridor Overlay District ENVIRONMENTAL FINDINGS: o Not Applicable . Previous EIR, SCH #94032045 o No Significant Effects o Potential Effects, Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program STAFF RECOMMENDATION: Iii Recommend Mayor and Council Approval o Approval/Conditions o Denial o Not Applicable DA 08-01 June 22, 2011 Page 2 PROJECT DESCRIPTION The applicant requests approval of a Development Agreement Amendment under the authority of Development Code Section 19.40.040 and California Government Code Section 65868 to extend the completion dates from May I, 2006 and May I, 2011 to May I, 2026 and May 1,2031 for Phases I and II and amend parking standards for the previously approved Development Agreement No. 91-0 I between the City of San Bernardino and the developer of the Inland Center Mall. The project site is located at 500 Inland Center Drive in the CR-I, Commercial Regional Malls land use district (Attachment A). Chapter 19.40, Development Agreement and California Government Code Section 65864 et seq allows the City to enter into development agreements with private developers. Pursuant to Government Code Section 65868, a development agreement can be amended or canceled in whole or in part. The procedures for amending or canceling any provision or provisions of a development agreement are the same procedures as required for initial approval of a development agreement. SETTING/SITE CHARACTERISTICS The project site is the Inland Center Mall located at 500 South Inland Center Drive in the CR-I, Commercial Regional Malls land use district. LOCATION Site North South East West LAND USE Inland Center Mall Retail multi-tenant commercial Floor Control Channel Floor Control Channel Interstate 215 Freeway GENERAL PLAN CR-I, Commercial Regional Mall CG-I, Commercial General PFC, Public Facility Control PFC, Public Facility Control CALTRANS CALIFORNIA ENVIRONMENTAL OUALITY ACT (CEOA) An Environmental Impact Report (SCH #94032045) was prepared and fully analyzed all potential impacts related to approval of Development Agreement No 09-01 in compliance with CEQA requirements and Section 19.20.030 (6) of the Development Code. Findings of Fact and Statement of Overriding Considerations were adopted in accordance with guidelines for the implementation of CEQA. Since the total buildable area described in the subject agreement area had been previously analyzed as part of original Development Agreement No. 91-01, no additional environmental review is required. All future development described in the subject agreement will be required to incorporate applicable mitigation measures from the original EIR. BACKGROUND . April I, 1996 - The Mayor and Common Council approved Development Agreement No. 91-01 by Resolution No. 96-84 and certified an Environmental Impact Report (SCH #94032045) which granted the developer of the Inland Center DA 08-01 June 22, 2011 Page 3 Mall the right to expand the Inland Center Mall and develop the project site pursuant to the provisions established in the Development Agreement No. 91-0 I. . September 10, 1997 - Development Services Director approved Minor Modification No. 97-004 to modify the gross floor area for anchor stores I and 2 from 160,000 sq.ft. to 165,000 sq.ft. and 140,000 sq.ft. to 135,000 sq. ft. not to exceed the aggregate of 540,000 sq.ft. . September II, 1997 - The Development/Environmental Review Committee (D/ERe) approved Development Permit Type 2 (DP2) No. 97-13 to initiaie the construction of Phase I. . September 25, 1997 - Central City Company (Carousel Mall) filed an appeal ofthe D/ERC's approval ofDP2 No. 97-13. . The October 7,1997 - The Planning Commission upheld the D/ERC's approval ofDP2 No. 97-13. . October 21, 1997 - Central City Company (Carousel Mall) filed an appeal of the Planning Commission's action. . November 3, 1997 - The Mayor and Common Council upheld the Planning Commission's action. . January 23,2008 - Development Agreement Amendment No. 08-01 was filed. . Draft Agreement held in abeyance pending completion of 1-215 widening. PROPOSED AMENDMENT In order to facilitate the expansion of the Inland Center Mall, the City approved a 20-year Development Agreement with the developer of the Inland Center Mall on April I, 1996. The Development Agreement has granted the developer vested right to expand the Inland Center Mall in two (2) Phases and established the terms under which the development will occur. A portion of Phase I has been completed to include a 165,000 sq.ft., 2-level, anchor department store currently occupied by Macy's and a 4-level parking structure abutting Macy's to the south. Other improvements and upgrades have also been added to the first level retail shopping mall. Due to current economic conditions, expansion for the Mall as anticipated in the Development Agreement No. 91-01 has been challenging. The applicant requests that the completion dates for Phases I and II be extended and that minor clarification and updates be added to simplify certain sections of the agreement as to enhance processing of further expansion of the Mall. Attachment B provides a detailed analysis of the proposed development agreement amendment. The following are key points: . Extends the completion dates to allow the Developer to complete Phases I and II. . Extends Phase I expected completion date from May 1,2006 to May 1,2026. . Extends Phase II expected completion date from May 1,2011 to May I, 2031. . Simplifies parking standard to comply with current code requirement with no parking surplus. . Excess Caltrans right-of-way of 2.6 acres added to the project site shall automatically be annexed in the Development Agreement. DA 08-01 June 22, 2011 Page 4 Additionally, the result of Caltrans' acquisition of property from the Inland Center Mall for widening of the Interstate 215 Freeway may have reduced/eliminated the Developer's ability to construct and/or maintain a landscape buffer between the subject site and the 1-215, pursuant to the Freeway Corridor Overlay District Section 19.14.030 (I), Landscape Setback Buffer. Furthermore, such acquisition by Caltrans may make the subject site non-conforming or increase an existing non-conforming situation. A City-initiated Development Code Amendment No. 11-07 is currently to modify Section 19.14.030 of the Freeway Corridor Overlay District. The proposed code amendment would resolve the non-conforming condition on the Inland Center property, as well as numerous other parcels affected by the freeway widening, without sacrificing aesthetic values. Due to its size, the original Development Agreement has been provided on disk for reference. RECOMMENDA nON Staff recommends that the Planning Commission recommend approval of Development Agreement Amendment No. 08-01 to the Mayor and Common Council. R'A;_s:r Aron Liang ! Senior Planner A~1)(~iWti" · M. f::, Wh"!,,, Ale' Attachment A Attachment B Attachment C Attachment D Location Map Site Plan Analysis of Development Agreement Amendment First Amendment to Development Agreement Original Development Agreement on disk ATTACHMENT A CITY OF SAN BERNARDINO PLANNING DIVISION PROJECT: Development Agreement 08-01 LOCATION MAP HEARING DATE: 6/22/2011 u NORTH . f0- Il) - "'MlrLsT-~-_n- - I ~,~ -.... -'MILL B :11 -- ,.... In .1.. . v-t ' ' . . I WRD ATTACHMENT A CITY OF SAN BERNARDINO PLANNING DIVISION PROJECT: Development Agreement 08-01 LOCATION MAP HEARING DATE: 6/22/2011 u NORTH "" ~ ~ u Ii I ! Iii II III I I . :I: U ~e ji; ~~ ~ i; 0( se ~!l <;! d~~ ~ II .~~ I IJ~~~ is! i~~~ J !IJ~i ~lill~lt~ -~!f. ~~ f~ IIz flH ~ izl! ~~ hi! I~ IUd ~ ~ II ~ '. ... III I ;; ~ I '~i f .~'.' .-' -y-" /,~' i . "..~ "il: >" i'.'" ......,:. .'" '" '< "<..::. ,I r i ji j.. i I ~1lI'1I '~I'. i~~H < ",/ ' /;/ // .f," ,/{/" Jf, 0': . ",!jY';?' "'", .i;? "/) F . II ,i,f" ',', '.... " , '" ,,' I' , , , i /~"', 1'1 / '\, \" " . \ ~ "_-;'%;,,, ,:.. .U-"'i!iI \".",,' "'.,-;;, "'-~-" '\ - " ...~; .',' " "1-';'" ,,-:' - ",,'-/ 'Z z ATTACHMENT B ~::5 0..0.. 9w ~lii ~i o w ~ fa a H ~~ ~~ f~ H Ii ~~ H i!! e ~~ · . ~ CD -SS lllf ; i~ ,~ h.i H~ U ~I ,~i~ H ~~ ~h~ H h Hi} 8~ !. l~l h H~ll~; H 5ji2-1l11.s tlr ! ~HH~ ! '''H=~~~ dip~l1~ · · 2-s~I" ~i s ~a~~ s8d -.'lti " "' ~l ^ . I . ;; ~ i ,; ~ ! I i ~ ~ . ! I I ~ I :i " . ~ g " " I ATTACHMENT C GRESHAM I SAVAGE , ),-'1>ic':"'''', ,C\ 1 -\'il M.lrkJJstl1iclw"Cresh,lmS<1Vage.com . San Bernardino Office (909) 8904499 . .!;IX (909) 890-9890 February 11, 2011 [D)~@~OW@f[)' ~ FEB!" 2011 LY) HAND DELIVERED CITY OF SAN dEI-iNAROINO COMMUr\ITY r:JEVELOPMENT OEP.\HTMENT Ms. Margo Wheeler, Director Community Development Department City of San Bernardino 300 N. "0" Street, 3rd Floor San Bernardino, California 92418 Re: Inland Center Dear Margo: Thank you for meeting with us Wednesday. We are in the process of thinking through potential, additional uses/development envelopes that may be incorporated into Inland Center and will let you know if we think additional changes in the Development Agreement are necessary. Enclosed is a copy of the May 1, 1996 Development Agreement for your information. Enclosed also is the draft Amendment we intend to file in the near future. Following are the changes/confirmations proposed by the Amendment: Existing Development Agreement First Amendment to Development Agreement 2.(f) Certificate of Occupancy for Phase 1 1.(a) Extend date to 5/1/2026. improvements by 2006 2.(f) Building Permit for Phase II improvements 1.(a) Extend date to 5/1/2031. required to be obtained by 5/1/2011 6.(b) Contemplates release of 2.6 acres of land from 3. On acquisition of the 2.6 Caltrans right-of-way and provides that the City acres by Developer, the 2.6 will assist the Developer in securing title to the acres will automatically be 2.6 acres. annexed in the Development Agreement. 6(g) Complex parking analysis. 2. Simplified reaffirmation of applicable parking standard. In addition, following is a summary of a few important activities that have occurred since the date of the existing Development Agreement: . . ;~,,'_/-(;',:"'// 100/"//_, / H :;: '--'l: 3750 University i'l,\fenUe, Suite 250 River'sije, C.'lilfarnJa 92501 -->! ~,iJ :'j,.,i.:-:r!, 550 East Hosoitaiity Lane, Suite 300 San Bernardino, Caiifornia 92408 Gresi~a mSi'l1i aqe.com \\/990-000 -- ('~39~71 Ms. Margo Wheeler February 11, 2011 Page 2 Provision in Existing Development Agreement Intervening Activities 2.(h) Parties acknowledge that landscaping and Developer proposed amendments signage at the Mall on the Effective Date of the to Chapters 19.22 and Sections Development Agreement may not be consistent 19.14.020 and 19.14.030(6) and (7), with Development Code. Developer shall to allow larger and taller signage. amend Sections 19.14 (Fwy Corridor Overlay City approved amendments as District), 19.22 (Sign Regulations) and 19.28 Ordinance MC-1057 on (Landscape Standards) to achieve consistency September 7, 1999. and ensure that the existing and proposed landscaping and signage at the Mall is legal and conforming. For specific details regarding code provisions to be amended, see Exhibit "H". Exhibit "H" Freeway Overlay District, Pending widening of the 1-215, the landscape Chapter 19.14.030, requires all areas adjacent to the Freeway are deemed to non-residential land use districts satisfy Chapter 19.28 of the Code. When the within 500' of the 1-215 to provide Freeway is widened, to ensure a landscape buffer a 25' landscape setback and a 50' between the 1-215 and the Mall, landscaping will building setback along the be replaced between the ring road and the freeway. Per letter from V. Ross parking area as agreed to by the City, Caltrans dated 4/22/2009, if Caltrans and Developer. acquires property that . To the extent possible, the ring road will be "encroaches" into the freeway retained as part of the redesign concept. corridor setback, Caltrans is not required to replace the setback . If relocating the landscape would reduce area. However, such acquisition the parking spaces below the minimum may make property non- number required in the Development conforming or increase an Code, City will not unreasonably withhold existing non-conforming locating part of landscape buffer on the situation. Now that the Caltrans public ROW of the 1-215. improvements have been . The landscape buffer will be installed no completed, to prevent the Mall later than 1 year after completion of the from being deemed non- 1-215 widening. conforming for failure to provide the required 25' landscape setback, Developer intends to propose a variance from Chapter 19.14.030. 6(a) If the Caltrans freeway widening results in a After the Caltrans widening, reduction in parking spaces at the Mall, City parking counts confirm 4,434 will not require the replacement of those lost existing parking spaces at the parking spaces, provided the number of parking Mall, which exceeds the number spaces lost does not result in a reduction of of parking spaces required by the spaces below the minimum number required by Development Code. the Development Code. \\., ".:";.'."1 Ms. Margo Wheeler February 11, 2011 Page 3 Hopefully, this letter and the enclosures will provide useful background on the Development Agreement. Of course, I would be happy to meet with you at your convenience to further discuss the Development Agreement. Very truly yours, ~ rJlu-,~ Mark A. Ostoich, of GRESHAM SA V AGE NOLAN & TILDEN, A Professional Corporation MAO/pmj Enclosure cc: Overton Kuhn Arun Parmar \\,),<,.,.",,' GRESHAM I SAVAGE Mark.OstoichCii)GreshamSavage.com . San Bernardino Office (909) 890-4499 . fax (909) 890-9690 ATTORNEYS AT LAW ~~ March 7, 2011 HAND DELIVERED Mr. Aron Liang City of San Bernardino 300 North "0" Street San Bernardino, California 92418-000 I Re: Proposed First Amendment to Inland Center Mall Development Agreement Activity No. DA08-0I Dear Mr. Liang: On January 23, 2008, Gresham Savage submitted an application on behalf of Inland Center to amend the Development Agreement with the City of San Bernardino. As you may recall, at a follow up meeting, the City asked for additional information regarding the Caltrans freeway improvements, their impact on the then existing landscaped freeway buffer, and the parking spaces at Inland Center Mall. The following information is submitted in response to that request: 1. The reconstructed ring road - When Caltrans widened the 1-215 freeway at Inland Center Drive, Caltrans reconfigured the off-ramp that serves Inland Center and added a second frontage road to carry traffic from the bridge over the freeway at Orange Show Road to Mill Street. The addition of the second frontage road, and the reconfiguration of the Inland Center Drive off-ramp interfered with the ring road that circles Inland Center. To accommodate the freeway expansion, Caltrans moved the ring road closer to the mall buildings. . The width of the 'ring road' in its new location varies, but the minimum width is 28.87'. . For a depiction of the interface between the ring road, and the Inland Center Drive off-ramp, see the cross sections on page X-ll of the Caltrans plans. Exhibit X-II depicts the ring road either below grade or near grade with the off-ramp. . Note, on both sides of the Inland Center Drive off-ramp, a concrete barrier protects motorists. RIVERSIDE 3750 University Avenue, Suite 250 . Riverside, California 92501 SAN BERNARDINO 550 East Hospitality Lane, Suite 300 San Bernardino, California 92408 GreshamSavage,com 'W'Y90..(JOO n5~5626,2 Mr. Aron Liang March 7, 2011 Page 2 2. Loss of landscape setback between the off-ramp and the Ring Road: Section 6(f) of the Development Agreement provides for a 15' landscaped buffer between the 1-215 freeway and Inland Center, rather than a 25' wide landscaped buffer as required by the Municipal Code (Chapter 19.14). The Development Agreement also acknowledges as follows: "In the event that Caltrans expands the 1-215 freeway, nothing in this Agreement will be deemed to alter the Developer's continuing obligation to maintain at least a 15' landscape buffer between the Inland Center Mall and the 1-215 freeway." However, as a result of the freeway expansion, the reconfiguration of the Inland Center Drive off-ramp, and the addition of the second frontage road, the landscape buffer between the Ring Road and the 1-215 freeway has been eliminated. To replace the landscaped buffer would eliminate required parking spaces. Because the Freeway Overlay Zone requires a 25' landscaped buffer between the 1-215 freeway and the ring road, Inland Center is requesting a variance to excuse the missing landscaping. See the proposed Variance Findings, enclosed. 3. Size of the condemnation parcel for freeway improvements: Caltrans condemned 1.8 acres of Inland Center's property to obtain the right of way to expand the 1-215. 4. Parking spaces lost due the condemnation and reconstruction of the ring road: The Caltrans improvements and the relocation of the ring road eliminated 207 parking spaces. 5. Existing vs. Approved Gross Leasable Area ("GLA"): The existing GLA and existing parking spaces are listed below, followed by the approved GLA and approved parking spaces pursuant to the Development Agreement. Note, the parking calculations below do not include the outparcels and parking spaces located east of the Flood Control Channel. Parking Spaces: Terri Rahhal asked for a calculation of the existing gross leaseable at Inland Center, and the number of parking spaces remaining after the Caltrans expansion. The chart below provides that information, and confirms that the existing parking spaces at Inland Center comply with the Development Code. 2 \\199i)-(I('O--545626.2 A Inland Center Mall [Existin9 as of A rll '996 Mr. Aron Liang March 7, 2011 Page 3 Existina GLA and Parkina SummarY -- as af SeDtember 2010 Total Existing Total Parking Required TOTAL SF parking1 (4 spacesJ1,OOO SF) Anchors Sears [including Tire Battery & Automotive] 264.682 1507 1058.7 Macys [aka Phase 2 - Anchor 3J 165,000 0 660 Vacant Anchor [aka Gottschalks) 204,178 1394' 816.7 Forever 21 (utilizing 94,011SF) [aka Broadway, including TBA, totals 149.814SFJ 149.814 800 599.2 Sub-Total 783,674 3134.7 Mall 230.583 670 922.3 4,371 4,057 TOTAL SF 1.014.257 4.31/1.000 sq fI 4.00/1.000 sq 11 According to the Development Agreement, Inland Center contained 985,829 square feet of floor area and 4,400 parking spaces in 1996, when the City approved the Development Agreement. (Development Agreement at section 6(g).) The Development Code requires 4 parking spaces per 1,000 square feet for retail commercial uses, or 3,944 parking spaces. The Development Agreement provides for 456 more parking spaces than are required by the Development Code. At build-out, the Development Agreement provides for the addition of 770,995 square feet of floor area and 3,020 additional parking spaces for a total of 7,420 parking spaces. (Development Agreement, Section 2(c)(vi).) At 4 parking spaces per 1,000 square feet, the Development Code requires 7,194 parking spaces. The Development Agreement provides for 226 more parking spaces than are required by the Development Code. reement - A ril1996 Total SF Additional Lower Level Mall s ace "Non-retail" Approved im rovements Parkin Additional First Level Mall s ace Anchors 98S,829 4,400 3,943 I Number of Spaces in Parking Structure = 1009 3 W991).(1('0--545626.2 Mr. Aron Liang March 7, 2011 Page 4 Aooroved GLA and oarkina soaces oursuant to the Develooment Aareement. Aoril1996 Additional Additional Additional Second Required Lower Level First Level Level Mall "Non-retail" Approved Parking Total SF Anchors Mall SDace Mall soace space imorovements Parklnn 1411,000 SFl DA PHASE ONE fAnchors 1 & 2" 530,825 300,000 3,700 7,400 142,505 75,000 2,220 2,123 ~A PH~E TWO Anchor 3 281 ,BOO 240,000 16,000 25000 800 1,127 Sub-Totals Q'\1.. l,,".s 540,000 3,700 7,400 158,505 100,000 APPROVED MALL SF 1,798,454 7,420 7,194 Please let me know what additional information is required to schedule the First Amendment to the Development Agreement for consideration by the Planning Commission. Very truly yours, ~~ Mark A. Ostoich, of GRESHAM SAVAGE NOLAN & TILDEN, A Professional Corporation MAO/pmj Enclosure cc: Arun Parmar Overton Kuhn 4 'N990_0(JO__54S626.2 ATTACHMENT 0 RECORDING REQUESTED BY: GRESHAM SAVAGE NOLAN & TILDEN AND WHEN RECORDED, MAIL TO: Gresham Savage Nolan & Tilden 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408 Attn: Mark A. Ostoich, Esq. (THIS SPACE FOR RECORDER'S USE ONLY) FIRST AMENDMENT TO DEVELOPMENT AGREEMENT Between THE CITY OF SAN BERNARDINO, a Municipal Corporation and WM INLAND INVESTORS IV, LLC, a Limited Liability Company Firsl Amendment 10 Development Agreement 05 to 04 W9()l).(IC'O C.n))4.1 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT This First Amendment to Development Agreement ("First Amendment") is entered into effective , 20_, between the City of San Bernardino, a municipal corporation ("City") and WM Inland Investors IV, LLC, a Delaware limited liability company, doing business as Inland Center ("Developer"). A. Effective May I, 1996, City and Developer's predecessor-in-interest, Mano Management Company, Inc., a Delaware corporation ("Mano"), entered into a Development Agreement regarding anticipated development at the Inland Center Mall ("Development Agreement"). The Development Agreement was enacted on April I, 1996, by Resolution No. 96-84. B. Developer is the successor-in-interest of Mano and has received from Mano the transfer of all ofMano's rights and obligations under the Development Agreement. C. Since 1996, market conditions have adversely affected regional malls throughout the United States. Such market conditions include, without limitation, the consolidation of major tenants, leading to the departure of traditional major tenants from the marketplace and changing consumer patterns, leading to a preference for life-style oriented developments that combine retail, restaurant and entertainment uses. Despite reasonable efforts, such market conditions have prevented Mano and Developer from meeting certain milestone dates for development, as envisioned by City and Developer at the time the Development Agreement was enacted. D. In addition, the California Department of Transportation ("CaItrans") recently widened Interstate 215 by constructing two additional lanes immediately adjacent to the Inland Center Mall ("Interstate 215 hnprovements"), on property previously containing a 15' landscape buffer immediately adjacent to the freeway, and parking spaces in the parking lot. Construction of the Interstate 215 Improvements prevents Developer's ability to comply with certain provisions of the Development Agreement related to landscape buffering adjacent to the Interstate 215, and with the 25' landscape buffer required by the Freeway Overlay zone for properties adjacent to the freeway. E. Developer continues to desire to carry out the intent of the Development Agreement in a manner which is responsive to market conditions as they exist from time to time. To that end, Developer has requested certain amendments to the Development Agreement, as more particularly set forth in this First Amendment, and the City is agreeable to the same. F. On , 20_, the City Council adopted Resolution No. ("Enacting Resolution"), which enacted this First Amendment and the Enacting Resolution became effective on the date of its adoption. G. By adopting the Enacting Resolution, the City Council reaffirms the Development Agreement as amended by this First Amendment. Hereafter, each reference to the Development Agreement shall be deemed to be a reference to the Development Agreement, as amended by this First Amendment. I First Amendment to Development Agreement-OS to 04 \\"NI)-O(,n ,)n334,1 IN CONSIDERATION of the mutual covenants and conditions contained in this First Amendment, the parties agree as follows: I. Phasing. OPERATIVE PROVISIONS (a) Paragraph 2(f) of the Development Agreement is deleted in its entirety and the following is substituted in its place: "Developer intends that the Development of the Inland Center Mall will be phased as follows: Phase II Improvements I Construct New Anchor 1 with approximately 140,000 square feet of gross building area. Construct New Anchor 2 with approximately 160,000 square feet of gross building area. Construct additional lower level retail shopping mall improvements with approximately 3,700 square feet of gross building area, additional first level retail shopping mall improvements with approximately 7,400 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 142,505 square feet of gross building area. Construct new non-retail improvements with approximately 75,000 square feet of gross building area. Construct three adjacent parking structures accommodating approximately 2,220 autos. Construct New Anchor 3, with approximately 240,000 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 16,000 square feet of gross building area. Construct new non-retail improvements with approximately 25,000 square feet of gross building area. Construct an adjacent parking structure accommodating approximately 800 autos. From time to time, and as circumstances warrant, Developer intends to update the description of Phase II to account for market demand, subject to approval requirements stated in "Operative Provisions" in subparagraph 3(a) of the Development Agreement. Notwithstanding the foregoing, if by May 1, 2026, Developer fails to obtain a certificate of occupancy from the City (or the equivalent approval by the City, if the City no longer issues certificates of occupancy at that time), with respect to the construction of the improvements in Phase I or if by May I, 2031, Developer fails to obtain a building permit with respect First Amendment to Development Agreement-05 to 04 W01r)-(J(lO_.67S~J4,1 2 to the improvements in Phase II, then at the election of the City, the City may require Developer to agree to an amendment of this Agreement to provide that, during the remainder of the term of this Agreement, the Development of the Inland Center Mall will be governed by the land use provisions of the City's Development Code (Title 19 of the Municipal Code), as they exist at the time of actual Development." (b) Notwithstanding any contrary provision in the Development Agreement, including in Exhibit "D" of the Development Agreement, Developer may phase the Development of the Inland Center Mall in a manner that, in Developer's sole discretion, responds to applicable market conditions. 2. Parking. Paragraph 6(g) of the Development Agreement is deleted in its entirety and the following is substituted in its place: "Developer will be required to provide onsite parking at a ratio of 4 parking spaces for each 1,000 square feet of gross leaseable area which is occupied from time to time in the buildings, in connection with Developer's use of the Inland Center Mall as contemplated in the Development Agreement." 3. Annexation. In the event Developer acquires the land which is depicted as "2.6 acres" in Exhibit "J" of the Development Agreement, such land will, as of the date of Developer's acquisition (as documented by recordation of a deed conveying title to such land to Developer), automatically be deemed annexed into the Development Agreement and, from and after such date, will be subject to all of the provisions of the Development Agreement. 4. No Default. Developer acknowledge and Development Agreement. As of the Effective Date of this First Amendment, City and agree that neither party is in default of any provision of the 5. Unnecessary Provisions. Paragraphs 35 and 36 of the Development Agreement are no longer necessary and are deleted in their entirety. 6. Defined Terms. Except as otherwise defined in this First Amendment, all capitalized terms in this First Amendment will have the same meanings as are ascribed to those terms in the Development Agreement. 7. Address for Notices and Other Communications to Developer. Developer's address for notice under the Development Agreement is changed to the following: WM Inland Investors IV, LLC c/o Macerich Company 401 Wilshire Boulevard, Suite 700 Santa Monica, California 90401 Attn: Chief Legal Officer 8. Incorporation of Recitals. The Recitals in this First Amendment are material and are incorporated herein by reference. 3 First Amendment to Development Agreement-OS to 04 W9')O.(I(fU-(!7,,)~41 9. Development Agreement Continues in Full Force and Effect. In any case where a specific section in the Development Agreement is amended by this First Amendment, the parties intend to also amend any other provision in the Development Agreement which is related to the same subject matter. Accordingly, in the event of any conflict between any provision of this First Amendment and any provision in the Development Agreement, the conflicting provision in this First Amendment shall supersede and control. Except as amended by this First Amendment, all of the provisions of the Development Agreement will continue in full force and effect. [SIGNATURES FOLLOW] 4 First Amendment to Development Agreement-OS to 04 W')<)I).(I(I(1__6783341 CITY City of San Bernardino, a municipal corporation By: Its: ATTEST: By: City Clerk APPROVED AS TO FORM AND LEGAL CONTENT: By: City Attorney [ADDITIONAL SIGNATURE FOLLOW] 5 First Amendment to Development Agreement-OS to 04 W9'll).(l(l(l ,,7S3341 DEVELOPER WM INLAND INVESTORS IV, L.L.C., a Delaware limited liability company By: WM Inland, L.L.C., a Delaware limited liability company, its sole member By: Walton Inland Holdings IV, L.L.c., a Delaware limited liability company, its managing member By: Walton REIT Holdings IV, L.L.C., a Delaware limited liability company, its sole member By: Walton REIT IV, L.L.c., a Delaware limited liability company, its managing member By: Walton Street Real Estate Fund IV, L.P., a Delaware limited partnership, its sole member By: Walton Street Managers IV, L.P., a Delaware limited partnership, its general partner By: WSC Managers IV, Inc., a Delaware corporation, its general partner By: Name: Its: By: Macerich Inland LLC, a Delaware limited liability company, a member By: The Macerich Partnership, L.P., a Delaware limited partnership, its sole member By: The Macerich Company, a Maryland corporation, its sole general partner By: Name: Its: 6 First Amendment to Development Agreement-OS to 04 W9'l!)-()(I(I.-67S3~4_1 COUNTY OF ) ) ) STATE OF On , 20_, before me, , !! Notary Public, in and for said County and State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislherltheir authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California, that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public COUNTY OF ) ) ) STATE OF On , 20_, before me, , !! Notary Public, in and for said County and State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California, that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public First Amendment to Development Agreement 05 10 04 \V9;;O.,I}OO-.67S334,1 RESOLUTION NO. 2 3 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 91-01 BETWEEN THE CITY OF SAN BERNARDINO AND THE DEVELOPER OF THE INLAND CENTER MALL, LOCATED AT 500 SOUTH INLAND CENTER DRIVE. 4 5 6 7 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. Recitals. 10 11 WHEREAS, WM Inland LP has requested approval of an amendment to Development Agreement No. 91-01 for a phased expansion of the Inland Center Mall; and WHEREAS, the proposed agreement amendment is referred to herein as Development Agreement Amendment No. 08-01 and is also referred to herein as First Amendment to Development Agreement for the Inland Center Mall; and WHEREAS, the Inland Center Mall consists of approximately 61 acres located at 500 South Inland Center Drive; and WHEREAS, on April 1, 1996, the Mayor and Common Council approved Development Agreement No. 91-01 by Resolution No. 96-84 which provided the developer of the Inland Center Mall the right to expand the Inland Center Mall and develop the project site in accordance 12 13 14 15 16 17 18 19 20 21 with the provisions established in the Development Agreement; and 22 WHEREAS, an Environmental Impact Report (State Clearinghouse No. 94032045) was prepared for Development Agreement No. 91-01, pursuant to Section 15050 of the California Environmental Quality Act (CEQA) Guidelines; and WHEREAS, the Planning Commission of the City of San Bernardino held a noticed public hearing on June 22, 2011, to consider Development Agreement Amendment No. 08-01 and recommended approval to the Mayor and Common Council; and 23 24 25 26 27 28 ~/(P o &'-fS-- " 2 3 4 5 WHEREAS, the Mayor and Common Council held a noticed public hearing on July 18, 2011, to consider the proposed Development Agreement Amendment No. 08-01, including the Planning Commission recommendation and the Planning Division Staff Report dated June 22, 2011. (, NOW, THEREFORE, BE IT RESOLVED, FOUND AND DETERMINED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 2. Findings: A. Development Agreement Amendment No. 08-01 is internally consistent with the General Plan in that it meets General Plan Policy 4.5.2 in that it maintains and enhances commercial regional cores and economically sound community-serving commercial concentrations by attracting new regional outlets, maintaining the existing regional retail base, and stabilizing the future regional retail base. B. Development Agreement Amendment No. 08-01 is consistent with Development Code Chapter 19.40 in that, in conjunction with Development Agreement No. 91-01, it contains the mandatory contents for development agreements, including and not limited to the duration of the agreement, the permitted uses of the property, and the density or intensity of use(s) as described in Section 19.40.040 of the Development Code. C. The proposed amendment will promote the public interest, health, safety, convenience and welfare of the City in that expansion of the Inland Center Mall will create temporary construction jobs and permanent job opportunities in the City, and generate revenues and property taxes for the City. SECTION 3. Development Agreement Amendment No. 08-0 I: Development Agreement Amendment No. 08-01, also referred to as the First Amendment to Development Agreement for the Inland Center Mall, attached hereto and incorporated herein as Exhibit A, and is hereby approved. The City Manager is hereby authorized and directed to execute the First Amendment to Development Agreement for the Inland Center Mall on behalf of the City of San Bernardino. 7 8 9 to ]1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 SECTION 4. Compliance with California Environmental Oualitv Act: 2 An Environmental Impact Report (ErR) (SCH #94032045) was prepared to analyze the 3 environmental impacts of the expansion of the Inland Center Mall as proposed under 4 Development Agreement No. 9 I -0 1. The Mayor and Common Council certified the EIR, 5 adopted Findings of Fact, a Statement of Overriding Considerations and a Mitigation 6 Monitoring/Reporting Program (MM/RP) on April I, 1996. Development Agreement 7 Amendment No. 08-01 does not alter the scope of the approved expansion plan, provides only 8 minor modifications to the project site, and does not require further environmental analysis or ') documentation pursuant to Sections 15162 through 15164 of the State CEQA Guidelines. 10 SECTION 5. Notice of Determination 11 The Planning Division is hereby directed to tile a Notice of Determination with the 12 County Clerk of the Board of Supervisors of the County of San Bernardino, certifying the City's 13 compliance with the California Environmental Quality Act. 14 III 15 16 III 17 III 18 19 III 20 21 III 22 23 III 24 25 26 27 28 3 2 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 91-01 BETWEEN THE CITY OF SAN BERNARDINO AND THE DEVELOPER OF THE INLAND CENTER MALL, LOCATED AT 500 SOUTH INLAND CENTER DRIVE. 3 4 5 (, I HEREBY CERTIFY that the toregoing resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof, held 8 on the day of , 20 11, by the following vote, to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ VACANT BRINKER SHORETT KELLEY JOHNSON MC CAMMACK II 12 13 14 15 16 17 18 Rachel Clark, City Clerk 19 ,2011. day of The foregoing resolution is hereby approved this 20 21 22 Patrick 1. Morris, Mayor City of San Bernardino 23 Approved as to form: 24 25 JAMES F. PENMAN, City Attorney B)..~' ~i1cwJ. 26 27 28 4 Exhibit A RECORDING REQUESTED BY: GRESHAM SA V AGE NOLAN & TILDEN AND WHEN RECORDED, MAIL TO: Gresham Savage Nolan & Tilden 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408 Attn: Mark A. Ostoich, Esq. (THIS SPACE FOR RECORDER'S USE ONLY) FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR THE INLAND CENTER MALL Between THE CITY OF SAN BERNARDINO, a Municipal Corporation and WM INLAND LP, a Delaware limited partnership First Amendment to Development Agreement 05 10 04 W'i'j'J,o;,e, 7(J~~711 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR THE INLAND CENTER MALL This First Amendment to Development Agreement for the Inland Center Mall ("First Amendment") is entered into effective , 20_, between the City of San Bernardino, a municipal corporation ("City") and WM Inland LP, a Delaware limited partnership, doing business as Inland Center ("Developer"). A. Effective May 1, 1996, City and Developer's predecessor-in-interest, Mano Management Company, Inc., a Delaware corporation ("Mano"), entered into a Development Agreement regarding anticipated development at the Inland Center Mall ("Development Agreement"). The Development Agreement was enacted on April 1, 1996, by Resolution No. 96-84. B. Developer is the successor-in-interest of Mano and has received from Mano the transfer of all ofMano's rights and obligations under the Development Agreement. C. Since 1996, market conditions have adversely affected regional malls throughout the United States. Such market conditions include, without limitation, the consolidation of major tenants, leading to the departure of traditional major tenants from the marketplace and changing consumer patterns, leading to a preference for life-style oriented developments that combine retail, restaurant and entertainment uses. Despite reasonable efforts, such market conditions have prevented Mano and Developer from meeting certain milestone dates for development, as envisioned by City and Developer at the time the Development Agreement was enacted. D. In addition, the California Department of Transportation ("Caltrans") recently widened Interstate 215 by constructing two additional lanes immediately adjacent to the Inland Center Mall ("Interstate 215 Improvements"), on property previously containing a 15' landscape buffer immediately adjacent to the freeway, and parking spaces in the parking lot. Construction of the Interstate 215 Improvements prevents Developer's ability to comply with certain provisions of the Development Agreement related to landscape buffering adjacent to the Interstate 215, and with the 25' landscape buffer required by the Freeway Overlay zone for properties adjacent to the freeway. E. Developer continues to desire to carry out the intent of the Development Agreement in a manner which is responsive to market conditions as they exist from time to time. To that end, Developer has requested certain amendments to the Development Agreement, as more particularly set forth in this First Amendment, and the City is agreeable to the same. F. On , 20_, the City Council adopted Resolution No. ("Enacting Resolution"), which enacted this First Amendment and the Enacting Resolution became effective on the date of its adoption. G. By adopting the Enacting Resolution, the City Council reaffirms the Development Agreement as amended by this First Amendment. Hereafter, each reference to the Development 1 First Amendment to Development Agreement-OS to 04 \'."i'lo)_(J('(1 7(12~77 I Agreement shall be deemed to be a reference to the Development Agreement, as amended by this First Amendment. IN CONSIDERATION of the mutual covenants and conditions contained in this First Amendment, the parties agree as follows: 1. Phasing. OPERATIVE PROVISIONS (a) Paragraph 2(f) of the Development Agreement is deleted in its entirety and the following is substituted in its place: "Developer intends that the Development of the Inland Center Mall will be phased as follows: Phase II Improvements I Construct New Anchor I with approximately 140,000 square feet of gross building area. Construct New Anchor 2 with approximately 160,000 square feet of gross building area. Construct additional lower level retail shopping mall improvements with approximately 3,700 square feet of gross building area, additional first level retail shopping mall improvements with approximately 7,400 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 142,505 square feet of gross building area. Construct new non-retail improvements with approximately 75,000 square feet of gross building area. Construct three adj acent parking structures accommodating approximately 2,220 autos. Construct New Anchor 3, with approximately 240,000 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 16,000 square feet of gross building area. Construct new non-retail improvements with approximately 25,000 square feet of gross building area. Construct an adjacent parking structure accommodating approximately 800 autos. From time to time, and as circumstances warrant, Developer intends to update the description of Phase II to account for market demand, subject to approval requirements stated in "Operative Provisions" in subparagraph 3(a) of the Development Agreement. Notwithstanding the foregoing, if by May I, 2026, Developer fails to obtain a certificate of occupancy from the City (or the equivalent approval First Amendment 10 Development Agreement-OS to 04 11,.'i"Ij.!I(I':' ~[)~477. J 2 by the City, if the City no longer issues certificates of occupancy at that time), with respect to the construction of the improvements in Phase I or if by May I, 2031, Developer fails to obtain a building permit with respect to the improvements in Phase II, then at the election of the City, the City may require Developer to agree to an amendment of this Agreement to provide that, during the remainder of the term of this Agreement, the Development of the Inland Center Mall will be governed by the land use provisions of the City's Development Code (Title 19 of the Municipal Code), as they exist at the time of actual Development." (b) Notwithstanding any contrary provision in the Development Agreement, including in Exhibit "D" of the Development Agreement, Developer may phase the Development of the Inland Center Mall in a manner that, in Developer's sole discretion, responds to applicable market conditions. 2. Parking. Paragraph 6(g) of the Development Agreement is deleted in its entirety and the following is substituted in its place: "Developer will be required to provide on site parking at a ratio of 4 parking spaces for each 1 ,000 square feet of gross leaseable area which is occupied from time to time in the buildings, in connection with Developer's use of the Inland Center Mall as contemplated in the Development Agreement." 3. Annexation. In the event Developer acquires the land which is depicted as "2.6 acres" in Exhibit "J" of the Development Agreement, such land will, as of the date of Developer's acquisition (as documented by recordation of a deed conveying title to such land to Developer), automatically be deemed annexed into the Development Agreement and, from and after such date, will be subject to all of the provisions of the Development Agreement. 4. No Default. Developer acknowledge and Development Agreement. As of the Effective Date of this First Amendment, City and agree that neither party is in default of any provision of the 5. Unnecessarv Provisions. Paragraphs 35 and 36 of the Development Agreement are no longer necessary and are deleted in their entirety. 6. Defined Terms. Except as otherwise defined in this First Amendment, all capitalized terms in this First Amendment will have the same meanings as are ascribed to those terms in the Development Agreement. 7. Address for Notices and Other Communications to Developer. Developer's address for notice under the Development Agreement is changed to the following: WM Inland LP c/o Macerich Company 401 Wilshire Boulevard, Suite 700 Santa Monica, California 90401 Attn: ChiefLegaJ Officer 3 First Amendment to Developmelll Agreement-OS to 04 \\'),;,)[11:>0:' 702477.1 8. Incorporation of Recitals. The Recitals in this First Amendment are material and are incorporated herein by reference. 9. Development Agreement Continues in Full Force and Effect. In any case where a specific section in the Development Agreement is amended by this First Amendment, the parties intend to also amend any other provision in the Development Agreement which is related to the same subject matter. Accordingly, in the event of any conflict between any provision of this First Amendment and any provision in the Development Agreement, the conflicting provision in this First Amendment shall supersede and control. Except as amended by this First Amendment, all of the provisions of the Development Agreement will continue in full force and effect. [SIGNATURES FOLLOW] 4 First Amendment to Development Agreement-OS to 04 '.\ 'Sh)I). rJ~'; I 71i:;477 I CITY City of San Bernardino, a municipal corporation By: Charles McNeely City Manager ATTEST: By: Rachel Clark City Clerk APPROVED AS TO FORM: B~.~dd~ lame F. Penman City Attorney [ADDITIONAL SIGNATURE FOLLOW] 5 First Amendment to Development Agreement-OS to 04 W"')(I,(:'(l{' ,[('4171 DEVELOPER WM INLAND LP, a Delaware limited partnership By: Walton Inland GP, L.L.c., a Delaware limited liability company, its general partner By: Walton Inland Holdings IV, L.P., a Delaware limited partnership, its sole member By: Walton Inland Holdings IV GP, L.L.c., a Delaware limited liability company, its general partner By: Walton REIT Holdings IV, L.L.C., a Delaware limited liability company, its sole member By: Walton REIT IV, L.L.c., a Delaware limited liability company, its managing member By: Walton Street Real Estate Fund IV, L.P., a Delaware limited partnership, its managing member By: Walton Street Managers IV, L.P., a Delaware limited partnership, its general partner By: WSC Managers IV, Inc., a Delaware corporation, Its general partner By: Name: Title: 6 First Amendment to Development Agreement-OS to 04 W'N;}.fi'>(> 7(124771 STATE OF ) ) ) COUNTY OF On _, 20_, before me, , a Notary Public, in and for said County and State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California, that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public STATE OF COUNTY OF ) ) ) On _, 20_, before me, , g Notary Public, in and for said County and State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person( s), or entity upon behalf of which the person( s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California, that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public First Amendment to Development Agreement OS to 04 W\I'j:'LI)(I(I 71)2..771 RECORDING REQUESTED BY: GRESHAM SA V AGE NOLAN & TILDEN AND WHEN RECORDED, MAIL TO: Gresham Savage Nolan & Tilden 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408 Attn: Mark A. Ostoich, Esq. (THiS SPACE FOR RECORDER'S USE ONLY) FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR THE INLAND CENTER MALL Between THE CITY OF SAN BERNARDINO, a Municipal Corporation and WM INLAND LP, a Delaware limited partnership First Amendment to Development Agreement 05 to 04 ,\'q<lr;nC'(l 7!1~'177] FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR THE INLAND CENTER MALL This First Amendment to Development Agreement for the Inland Center Mall ("First Amendment") is entered into effective , 20_, between the City of San Bernardino, a municipal corporation ("City") and WM Inland LP, a Delaware limited partnership, doing business as Inland Center ("Developer"). A. Effective May I, 1996, City and Developer's predecessor-in-interest, Mano Management Company, Inc., a Delaware corporation ("Mano"), entered into a Development Agreement regarding anticipated development at the Inland Center Mall ("Development Agreement"). The Development Agreement was enacted on April I, 1996, by Resolution No. 96-84. B. Developer is the successor-in-interest of Mano and has received from Mano the transfer of all ofMano's rights and obligations under the Development Agreement. C. Since 1996, market conditions have adversely affected regional malls throughout the United States. Such market conditions include, without limitation, the consolidation of major tenants, leading to the departure of traditional major tenants from the marketplace and changing consumer patterns, leading to a preference for life-style oriented developments that combine retail, restaurant and entertainment uses. Despite reasonable efforts, such market conditions have prevented Mano and Developer from meeting certain milestone dates for development, as envisioned by City and Developer at the time the Development Agreement was enacted. D. In addition, the California Department of Transportation ("Caltrans") recently widened Interstate 215 by constructing two additional lanes immediately adjacent to the Inland Center Mall ("Interstate 215 Improvements"), on property previously containing a 15' landscape buffer immediately adjacent to the freeway, and parking spaces in the parking lot. Construction of the Interstate 215 Improvements prevents Developer's ability to comply with certain provisions of the Development Agreement related to landscape buffering adjacent to the Interstate 215, and with the 25' landscape buffer required by the Freeway Overlay zone for properties adjacent to the freeway. E. Developer continues to desire to carry out the intent of the Development Agreement in a manner which is responsive to market conditions as they exist from time to time. To that end, Developer has requested certain amendments to the Development Agreement, as more particularly set forth in this First Amendment, and the City is agreeable to the same. F. On , 20_, the City Council adopted Resolution No. ("Enacting Resolution"), which enacted this First Amendment and the Enacting Resolution became effective on the date of its adoption. G. By adopting the Enacting Resolution, the City Council reaffirms the Development Agreement as amended by this First Amendment. Hereafter, each reference to the Development I first Amendment to Development Agreement-OS to 04 \';,<;,;<,.:,(1" 7(;:,,~-; I Agreement shall be deemed to be a reference to the Development Agreement, as amended by this First Amendment. IN CONSIDERATION of the mutual covenants and conditions contained in this First Amendment, the parties agree as follows: 1. Phasing. OPERATIVE PROVISIONS (a) Paragraph 2(f) of the Development Agreement is deleted in its entirety and the following is substituted in its place: "Developer intends that the Development of the Inland Center Mall will be phased as follows: Phase II Improvements I Construct New Anchor I with approximately 140,000 square feet of gross building area. Construct New Anchor 2 with approximately 160,000 square feet of gross building area. Construct additional lower level retail shopping mall improvements with approximately 3,700 square feet of gross building area, additional first level retail shopping mall improvements with approximately 7,400 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 142,505 square feet of gross building area. Construct new non-retail improvements with approximately 75,000 square feet of gross building area. Construct three adjacent parking structures accommodating approximately 2,220 autos. Construct New Anchor 3, with approximately 240,000 square feet of gross building area. Construct additional second level retail shopping mall improvements with approximately 16,000 square feet of gross building area. Construct new non-retail improvements with approximately 25,000 square feet of gross building area. Construct an adjacent parking structure accommodating approximately 800 autos. From time to time, and as circumstances warrant, Developer intends to update the description of Phase II to account for market demand, subject to approval requirements stated in "Operative Provisions" in subparagraph 3(a) of the Development Agreement. Notwithstanding the foregoing, if by May I, 2026, Developer fails to obtain a certificate of occupancy from the City (or the equivalent approval First Amendment to Development Agreement-05 to 04 \\";')1)_(":'\1 Y,:':An,i 2 by the City, if the City no longer issues certificates of occupancy at that time), with respect to the construction of the improvements in Phase I or if by May 1,2031, Developer fails to obtain a building permit with respect to the improvements in Phase II, then at the election of the City, the City may require Developer to agree to an amendment of this Agreement to provide that, during the remainder of the term of this Agreement, the Development of the Inland Center Mall will be governed by the land use provisions of the City's Development Code (Title 19 of the Municipal Code), as they exist at the time of actual Development." (b) Notwithstanding any contrary provision in the Development Agreement, including in Exhibit "D" of the Development Agreement, Developer may phase the Development of the Inland Center Mall in a manner that, in Developer's sole discretion, responds to applicable market conditions. 2. Parking. Paragraph 6(g) of the Development Agreement is deleted in its entirety and the following is substituted in its place: "Developer will be required to provide on site parking at a ratio of 4 parking spaces for each 1,000 square feet of gross leaseable area which is occupied from time to time in the buildings, in connection with Developer's use of the Inland Center Mall as contemplated in the Development Agreement." 3. Annexation. In the event Developer acquires the land which is depicted as "2.6 acres" in Exhibit "J" of the Development Agreement, such land will, as of the date of Developer's acquisition (as documented by recordation of a deed conveying title to such land to Developer), automatically be deemed annexed into the Development Agreement and, from and after such date, will be subject to all of the provisions of the Development Agreement. 4. No Default. Developer acknowledge and Development Agreement. As of the Effective Date of this First Amendment, City and agree that neither party is in default of any provision of the 5. Unnecessarv Provisions. Paragraphs 35 and 36 of the Development Agreement are no longer necessary and are deleted in their entirety. 6. Defined Terms. Except as otherwise defined in this First Amendment, all capitalized terms in this First Amendment will have the same meanings as are ascribed to those terms in the Development Agreement. 7. Address for Notices and Other Communications to Developer. Developer's address for notice under the Development Agreement is changed to the following: WM Inland LP c/o Macerich Company 401 Wilshire Boulevard, Suite 700 Santa Monica, California 90401 Attn: Chief Legal Officer 3 First Amendment to Development Agreement-OS to 04 \.\;';'111.(:011(' 'n2477.1 8. IncoIDoration of Recitals. The Recitals in this First Amendment are material and are incorporated herein by reference. 9. Development Agreement Continues in Full Force and Effect. In any case where a specific section in the Development Agreement is amended by this First Amendment, the parties intend to also amend any other provision in the Development Agreement which is related to the same subject matter. Accordingly, in the event of any conflict between any provision of this First Amendment and any provision in the Development Agreement, the conflicting provision in this First Amendment shall supersede and control. Except as amended by this First Amendment, all of the provisions of the Development Agreement will continue in full force and effect. [SIGNATURES FOLLOW] 4 First Amendment to Development Agreement-OS to 04 \\"'j<),j,tI(I(17(;2477.1 CITY City of San Bernardino, a municipal corporation By: Charles McNeely City Manager ATTEST: By: Rachel Clark City Clerk APPROVED AS TO FORM: B~~~ City Attorney [ADDITIONAL SIGNATURE FOLLOW] 5 First Amendment to Development Agreemellt~05 to 04 \\"i'llj(:,(HI7(;::>:7,.i DEVELOPER WM INLAND LP, a Delaware limited partnership By: Walton Inland GP, L.L.c., a Delaware limited liability company, its general partner By: Walton Inland Holdings IV, L.P., a Delaware limited partnership, its sole member By: Walton Inland Holdings IV GP, L.L.C., a Delaware limited liability company, its general partner By: Walton REIT Holdings IV, L.L.c., a Delaware limited liability company, its sole member By: Walton REIT IV, L.L.c., a Delaware limited liability company, its managing member By: Walton Street Real Estate Fund IV, L.P., a Delaware limited partnership, its managing member By: Walton Street Managers IV, L.P., a Delaware limited partnership, its general partner By: WSC Managers IV, Inc., a Delaware corporation, Its general partner By: Name: Title: 6 First Amendment to Development Agreement-OS to 04 W'i'HjJi(,(l 7024771 COUNTY OF ) ) ) STATE OF On , 20~, before me, , !! Notary Public, in and for said County and State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by his/her/their siguature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State ofCaliforrua, that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public COUNTY OF ) ) ) STATE OF On ~, 20~, before me, , i! Notary Public, in and for said County and State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislherltheir siguature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State ofCaliforrua, that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) Notary Public Fir5! Amendment to Development Agreement 05 to 04 leV';'): ...(j.:(, .. 7r) :.17~? 1