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HomeMy WebLinkAboutR35- Economic Development ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FROM: Ronald E.Winkler,Director SUBJECT: Amendment No. 1 to Disposition and Development Agreement—California Blo-Mass,Inc. DATE: February 29,2000 ORIu lj JA L ---- Svrumsis of Previous Commission/Council/Committee Action(s): On October 18, 1999,the Mayor and Common Council adopted Resolution No. 1999-263 and the Commission adopted Resolution No.CDC 1999-37 approving a disposition and development agreement for the California Bio-Mass project. -------------------------- ------------------- Recommended Motion(s): (Community Development Commission) MOTION: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSIONAPPROVING AMENDMENT NO. I TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT (CALIFORNIA BIO-MASS,INC.)AND EXTENDING THE COMPLETION OF THE DUE DILIGENCE PERIOD TO A NEW DATE. Contact Person(s): Gary Van Osdel/Ron Winkler Phone: 663-1044 Project Area(s) Northwest Ward(s): Six(6) Supporting Data Attached: ®Staff Report®Resolution(s)OAgreement(s)/Contract(s)OMap(s)❑Letter/Memo FUNDING REQUIREMENTS Amount: $ N/A Source: N/A Budget Authority: N/A SIGNATURE: ary Osde ,9xicutivepirector p6nald E.W der,Director Eco mic Development#gency --------- -- ----------- --- -- Commission/Council Notes: GVO:SMM:Iag:Amendment#1 COMMISSION MEETING AGENDA Meeting Date: 03/06/2000 Agenda Item Number: R3S ECONOMIC DEVELOPMENT AGENCY STAFF REPORT --------------------------------------------------------------------------------------------------------------------- Amendment No. 1 —California Bio-Mass,Inc. BACKGROUND On October 18, 1999,the Council/Commission conducted a joint public hearing for the disposition of approximately 10.28 acres of agency owned property to California Bio-Mass, Inc. Said property is located on the west side of Industrial Parkway,between the Cable Creek and Devil's Creek flood control channels (northerly of University Parkway). California Bio-Mass, Inc. is a firm that deals in the processing of organic waste material. These materials are converted into soil products for agriculture,horticulture and landscape use. The Disposition and Development Agreement(DDA)provides for the sale of the agency owned 10.28-acre parcel for a sales price of$441,000. California Bio-Mass, Inc. is proposing the construction of a facility for the collection,transfer, and marketing of green waste and other organic materials. The materials collected at the transfer facility include curbside green waste, wood materials, food waste and commercial landscape waste. All materials will be transferred to another site for processing. Finished materials(mulch and other soil amendments) will be brought back to the facility for bagging. The project includes up to 60,000 square feet of warehouse and office space. CURRENT ISSUE The DDA provides a period of 120 days from the opening of escrow for the developer to complete certain due diligence investigations, and to obtain development approvals from the City for the improvement of the project. California Bio-Mass, Inc. has proceeded with their project in accordance with the terms of the Agreement, however, application for a Conditional Use Permit was scheduled to be reviewed by the Planning Commission on February 22, 2000, but was continued to March 21,2000. In accordance with the DDA, a 30-day extension was granted extending the due diligence period through March 31, 2000. Should the decision of the Planning Commission be appealed to the City Council, Amendment No. 1 authorizes additional time through August 1, 2000, which would give the developer time to obtain the necessary development approvals. In the event the actions of the City Council are challenged, the proposed amendment further provides for an additional extension of time by mutual agreement. FISCAL IMPACT None. ---------------------------------------------------—--------------------------------------------------------------------------------------- GVO:SMM:Iag:Amendment#1 COMMISSION MEETING AGENDA Meeting Date: 03/06/2000 Agenda Item Number: RECOMMENDATION Staff recommends that the Community Development Commission adopt the attached resolution approving Amendment No. 1 to the Disposition and Development Agreement(California Bio- Mass,Inc.)which provides for the extension of the completion of the due diligence period to a new date. Ronald E. Nxinkler,Director Development Department -------------------------------------------------------------------------------------------------------------------------------------------- GVO:SMM:Iag:Amendment#1 COMMISSION MEETING AGENDA Meeting Date: 03/062000 Agenda Item Number: R 3 S a8i } i '3E z S S"'rs 3a S 33333 3 3 5 91lS! ! ! � Hie �e (1111 33��$!!!!!i ! !I� y e M11 HIM a g9g�9 � 4 e— •-�"--- \ VITE S O NI �- '— AVA WVd � : 2 R G � 3 5 e RS �' F t C 1 IS-3 _,....._.., .,,. . �.w., �. i r^emu 1 - -- RESOLUTIOIT N . L� 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AMENDMENT NO. 1 TO THE 3 1999 DISPOSITION AND DEVELOPMENT AGREEMENT (CALIFORNIA BIO MASS, INC. ) AND EXTENDING THE 4 COMPLETION OF THE DUE DILIGENCE PERIOD TO A NEW DATE. 5 6 WHEREAS, the Redevelopment Agency of the City of San 7 Bernardino (the "Agency") entered into that certain 1999 8 Disposition and Development Agreement (California Bio Mass, 9 Inc. ) (the "Agreement") with California Bio Mass, Inc. , a California 10 corporation (the "Developer") , which relates to the sale and 11 disposition by the Agency of certain lands to the Developer in 12 consideration for the payment by the Developer of the sum of 13 $441, 000.00, subject to the terms and conditions set forth in the 14 Agreement; and 15 16 WHEREAS, despite its diligent efforts, the Developer has 17 not been able to complete certain "Due Diligence Investigations" of 18 the Property, as these terms are defined in the Agreement, which 19 relate to certain development project approvals; and 20 21 WHEREAS, accordingly, the parties believe that an 22 extension of the time in which the Developer may complete (or waive 23 the completion) of its Due Diligence Investigations, as relates to 24 the Property, is indicated at this time as provided hereinbelow; 25 26 27 28 SBEO/0001/DOC/3616 ' 'n 2/29/00 dgw 1 // b �' / ` 3/3/00 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT 2 (CALIFORNIA BIO MASS, INC. ) AND EXTENDING THE COMPLETION OF THE DUE DILIGENCE PERIOD TO A NEW DATE. 3 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY 4 THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, 5 AS FOLLOWS: 6 7 Section 1 . The facts set forth in the Recitals of 8 this Resolution are true and correct. 9 10 Section 2 . Based upon the record submitted at the 11 meeting at which this Resolution was approved by the Commission, as 12 the governing body of the Agency, the Commission hereby finds and 13 determines that the terms of Amendment No. 1 to the 1999 14 Disposition and Development Agreement (California Bio Mass, Inc. ) 15 ("Amendment No. 1") are acceptable to the Commission. The 16 Commission is informed by the Developer that the terms of Amendment 17 No. 1 are acceptable to it . 18 19 Section 3 . The Commission hereby approves and accepts 20 Amendment No. 1, as attached hereto as Attachment No. 1 . , and 21 incorporated herein by this reference. The Chairperson of the 22 23 Commission and the Executive Director of the Agency are hereby authorized and directed to execute Amendment No. 1 on behalf of the 24 Agency. 25 26 27 28 SSEO/0001/DOC/3616 2/29/00 dgw 2 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT 2 (CALIFORNIA BIO MASS, INC. ) AND EXTENDING THE COMPLETION OF THE DUE DILIGENCE PERIOD TO A NEW DATE. 3 9 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the , Community Development Commission of the City of 5 San Bernardino at a meeting 6 thereof, held on the day of 2000, by the 7 following vote, to wit: 8 9 Commission AYES NAYS ABSTAIN ABSENT ESTRADA 10 LIEN MCGINNIS 11 SCHNETZ SUAREZ 12 ANDERSON 13 MILLER 14 Secretary 15 16 The foregoing Resolution is hereby approved this 17 day of 2000 . 18 19 Judith Valles, Chairperson Community Development Commission 20 of the City of San Bernardino 21 ! Approve / o fo an 1 content : 22 By: 23 Agency Counsel 24 25 26 27 28 SBEO/0001/DOC/3616 2/29/00 dgw - 3 CDC 2000-5 f-- 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT 2 (CALIFORNIA BID MASS, INC. ) AND EXTENDING THE COMPLETION OF THE DUE DILIGENCE PERIOD TO A NEW DATE. 3 ATTACHMENT NO. 1 4 5 AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT (CALIFORNIA BIO MASS, INC. ) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SBEO/0001/DOC/3616 2/29/00 dgw 5 i CDC 2000-5 AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND .DEVELOPMENT AGREEMENT (CALIFORNIA BIO MASS, INC. ) THIS AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT . AGREEMENT (the "Amendment No. 1") is dated as of March 6, 2000, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic (the "Agency") and DAVID L. HARDY AND MICHAEL J. HARDY, tenants in common, doing business as CALIFORNIA BIO MASS, INC. , a California corporation (the "Developer") . The Agency and Developer hereby agree as follows: --RECITALS-- 1 . The Developer and the Agency have previously entered into that certain 1999 Disposition and Development Agreement (California Bio Mass, Inc. ) (the "Agreement") which relates to the sale and disposition by the Agency of certain lands to the Developer in consideration for the payment by the Developer of the sum of $441, 000 . 00, subject to the terms and conditions set forth in. the Agreement. 2 . Despite its diligent efforts, the Developer has not been able to complete certain "Due Diligence Investigations" of the Property, as these terms are defined in the Agreement, relating to certain development project approvals . 3 . Accordingly, the parties believe that an extension of the time in which the Developer may complete (or waive the completion) of its Due Diligence Investigations, as relate to the Property, is indicated, at this time, as provided hereinbelow. NOW THEREFOR IN CONSIDERATION OF THE PROMISES OF THE PARTIES THE DEVELOPER AND THE AGENCY HEREBY AGREE AS FOLLOWS: Section 1 . The text of the Agreement is incorporated in full in this Amendment No. 1 by this reference. Unless the usage of a specific term or phrase as set forth in this Amendment No. 1 may otherwise require, the meaning of all defined words as used herein shall be as provided in the Agreement. SBEO/0001/DOC/4013 2/29/00 1015 jmw 1 CDC 2000-5 Section 2 . As of the date of the approval of this Amendment No. 1 by the governing board of the Agency and the full execution of this Amendment No. 1 by the parties, there is no breach under the Agreement, and both the Developer and the Agency declare that to the best knowledge of each of them, there are no facts which with the giving of notice and the passage of time would constitute a default under the Agreement. Section 3 . (a) As of the date of approval of this Amendment No.l, by the governing board of the Agency, the Developer has accepted the condition of title to the Property as provided in Section 2 . 13 of the Agreement. (b) As of the date of approval of this Amendment No. 1 by the governing board of the Agency, the Developer has completed its investigation of the matters covered in Section 2 . 09 (b) of the Agreement as relates to the Property, and subject to the matters covered in Section 2 .09 (c) as relates to certain development project approvals for the Project, the Developer represents and warrants to the Agency that the Developer is prepared to deliver its Due Diligence Approval Certificate to the Agency subject only to the provisions of Section 2 . 15 (c) and Section 2 . 15 (d) of the Agreement, as amended by this Amendment No. 1. Section 4 . Section 2 .03 (b) of the Agreement is hereby amended to read as follows : " (b) In the event that the Developer has not delivered its Due Diligence Approval Certificate to the Agency and the Escrow Holder by the applicable date indicated in Section 2 . 15 (c) or Section 2 . 15 (d) , then in such event this Agreement shall terminate upon written notice to the Escrow Holder from either the Agency or the Developer, whereupon the Deposit shall be returned by the Escrow Holder to the Developer (less an amount equal to the customary and reasonable escrow cancellation charges payable to the Escrow Holder) without further or separate instruction to the Escrow Holder, and the parties shall each be relieved and discharged from all further responsibility or liability under this Agreement. " SBEO/0001/DOC/4013 2/29/00 1015 jmw 2 CDC 2000-5 Section 5 . Upon the approval of this Amendment No. 1 by the governing board of the Agency and the full execution of this Amendment No. 1 by both of the parties hereto, no further extensions of time for the completion of the Due Diligence Period shall be authorized by the Executive Director under the provisions of Section 2 . 15 (b) of the Agreement. Section 6. Section 2 . 15 of the Agreement is hereby amended to add a new subsection " (c) " to read as follows : " (c) Upon the approval of Amendment No. 1 to this Agreement by the governing board of the Agency and the full execution of Amendment No. 1 to this Agreement by both of the parties, the Due Diligence Period of the Developer with respect to the matters included in Section 2.09(d) of this Agreement shall be extended to the first of the following dates to occur: (i) Subject to (ii) and (iii) , below, the close of the business day on the fifteenth (15th) day following the close of the public hearing and final action of the City Planning Commission for its consideration and final action on Conditional Use Permit No. 99-17; or (ii) Subject to (iii) , below, in the event that any third-party may submit an appeal as provided in San Bernardino Municipal Code Section 19.52 .100 of the final action of the City Planning Commission with respect to Conditional Use Permit No. 99-17, then in such event the Due Diligence Period shall be further extended to a date which is one hundred (100) days following the close of the public hearing of the City Council and its final action in consideration of such appeal; or (iii) August 1, 2000. " Section 7 . Section 2 . 15 of the Agreement is hereby amended to add a new subsection " (d) " to read as follows: " (d) Notwithstanding the provisions of Section 2 .15 (c) , in the event that on or before July 31, 2000, a third party may SBEO/0001/DOC/4013 3 2/29/00 1015 jmw CDC 2000-5 initiate legal proceedings in a court of competent jurisdiction to challenge or set aside the final action by the City Council as provided in Section 2 . 15 (c) (ii) , then in such event the Developer and the Agency may in the sole discretion of each of them, jointly approve a further extension of the Due Diligence Period to a date which is mutually acceptable to the Developer and the Agency. The provisions of this Section 2 . 15 (d) shall be applicable to the consideration of any such further extension of the Due Diligence Period upon the written request of the Developer to the Agency which references this Section 2 . 15 (d) . The Agency shall provide the Developer with its response to such a request for a further extension of the Due Diligence Period within thirty (30) days following its receipt; provided however that if the Agency has not responded to a request of the Developer under this Section 2 . 15 (d) within thirty (30) days for any reason, the Developer shall be conclusively deemed to have rejected the condition of the Property, and either party may thereafter terminate this Agreement as provided in Section 2 .03 (b) . " SBEO/0001/DOC/4013 2/29/00 1015 jmw 4 • CDC 2000-5 - THE AMENDMENT NO. 1 may be executed in counterpart and when fully executed by the parties each counterpart shall be deemed to be one original Amendment No. 1 to the Agreement; provided however that this Amendment No. 1 to the Agreement shall have been approved by majority vote of the governing board of the Agency and fully executed by the parties by a date no later than March 21, 2000 . DEVELOPER David L. Hardy and Michael J. Hardy, as tenants in common, doing business as California Bio Mass, Inc. , a California corporation Date: By: David L. Hardy Date: By: Michael J. Hardy AGENCY Redevelopment Agency of the City o Son Bernardino Date: !J8 08' gedd By: U ith Valles Ch it of the Community D velopment Commission Date: By: Gary Van Osdel Executive Director APPROVED AS TO FORM: Sabo a3 - i - �LLP 11� Agency Special Counsel [All Signatures Must Be Notarized] SBEO/0001/DOC/4013 5 2/29/00 1015 jmw