HomeMy WebLinkAboutContracts & Agreements_2-05 RDA_CCv0001.pdf ACQUISITION FUNDING AGREEMENT
by and between
THE REDEVELOPMENT AGENCY OF THE CITY OF REDLANDS,
a public body corporate and politic
and
REDL Af-x NDS LAND ACQUISITION COMPANY L.P.,
a Delaware limited partnership
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This ACQUISITION FUNDING AGREEMENT ("Agreement") is dated for
identification purposes as of January 4, 2005 arid is entered into by arid between THE
REDEVELOPMENT AGENCY CSF "I HE CITY OF REDLANDS. a public body" corporate rand
politic (the:. "Agency"), and REDLANDS LAND ACQUISITION COMPANY L.P., a Delaware
limited partnership (the "Developer"), upon the terns acid subject to the conditions -set forth
herein. Both the Agency arid the Developer are sometimes hereinafter referred to individually as
4a "Par
ty" and collectively as the "Parties,"
RECITALS_
A. The Agency is a public body, corporate and politic, exercising governmental'
functions acid powers and organized and existing under the Community Redevelopment Law of
the State of California (California Health & Safety Code Section 33000 cit seq.),-
B. The Developer is an active limited partnership formed and existing under the laves
of the State of Delaware and is qualified to do business in the State of California;
Cu The Parties have entered into that certain Exclusive Right to Negotiate
Agreement (the "ERN") dated September 7, 2004, whereby the Parties agreed to enter into
negotiations; leading to the development of a project (the "Project") on the site (the "Site"), a
depiction of which is attached hereto as Exhibit "A" and incorporated herein by this reference.,
within the Agency's Project Area No. 1, to achieve the goal of redevelopment of the Site;
D3 The Parries are conducting such exclusive: negotiations pursuant to the ERN;
E� Before the Parties may enter into a Disposition and Development Agreement
and/or Owner Participation Agreement (collectively, the 'IDDA"), the Parties: must, inter al es
comply with the requirements of the California Environmental, Quality Act, as amended
("CEQA"'); and
F Prior to the completion of the CEQA process and consideration of the LPDA, the
Parties desire to eater into this Agreement to further- implement the ERN and move forward in
the interim to complete such steps in furtherance of the Project as maybe carried out in;
accordance with jaw, including establishing as more specific agreement with respect to funding
the preliminary steps for site assembly and CEC, A compliance.
AGREEMENT.,
NOW. THEREFORE. FOR GOOD AND VALUABLE CONSIDERATION, the receipt
and sufficiency of which are, hereby acknowledged, the Parties mutually agree as follows,
1. Development ment Action .
The Parties agree that it is in the best interest of the Project to tale any or all development
actions in furtherance thereof as permitted by law prior to the completion of the CEQA process
and consideration of the.. DDA, including, without htaaitaation, acquisition by the Developer of any
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or all of the parcels comprising the Site in accordance with section 2.04 of the ERN, ret ent I oil of
one or more appraisers to appraise real property interests, retention of one or more. consultants to
appraise ftii-iiittire/f'iXtLtt,es/equipiiieiit and/or loss of goodwill: retention of one or more
consultants to assess relocation benefits and retention 4 one or more environmental consultants
to conduct the studies and analysis required by CEQA (the "Development Actions").
Costs.
Unless otherwise agreed in writing, subject to the Developer's prior written approval of all
contracts and the timing and limits of'expenditures, the Developer shall be solely responsible for,
arid/or shall pay all Agency costs for third party professional. services or consultant costs relating
to the Developtrient Actions arid the project, The Developer shall deposit cash or cash equivalent
with the Agency in the amounts required by the Agency. for a portion of the Agency-estimated
costs of each of the third party consultants arid professional services retained by the Agency for
Development Actions and for the Agency's actual costs for administering such third party
consultant and professional services contracts as provided for in Section 2.01 of the ERN, subject
to the Developer's prior written approval of all contracts and the timing and limits of
expenditures.
Costs shall be billed monthly, and the Developer shall be provided with a copy of each invoice
by facsimile at least ten (10) days before payment is due, for approval. The Agency shall not pay
air invoice before it has been approved by the Developer. If the Developer fails to notify Agency
in writing of its objection to an invoice within five (5) days of the Developer's receipt of such
invoice, the Developer shall be deemed to have approved such invoice, The amount to be
reimbursed to the Agency (or paid by the Developer) is limited to tile arnount of the approved
invoice,
The Developer authorizes the Agency to use or draw on the deposit to pay its actual and
reasonable third party consulting/professional costs relating to the performance of this
Agreement, sub�ject to the. Developer's prior written approval of all contracts and the timing and
limits of expenditures. If the Agency's costs exceed the initial deposit, then the Developer shall
supplement the deposit, In an amount determined by the Agency, within ten (10) business days
after receiving a written request from the Agency specifying the nature and amount of incurred
third party consulting costs required to complete obligations tinder this Agreement.
Upon the termination of this Agreement, any remaining unexpended arid unencumbered deposit
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shall be returned to the, Developer within thirty (301) days.
3, Site
The Agency understands and acknowledges, that the Developer does not presently
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own the Siteaand that the Developer is involved in negotiations with the respective owners of the
various portions of the Site and any current tenants thereon) in an attempt to {acquire:re the, Site. If
the Developer is unable to acquire all of the parcels comprising the Site, then, pUrstiant and subject
to the terms of the DDA as contemplated by the RN. tire, Agency shall Initiate the procedures
required by law to consider the necessity for exercising the. Agency's power of enunerit donna in
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with respect to tile parcels e("Muprising the Site not acquired by the Developer, for conveyance to
the Developer. Following initiation of such procedures, they shall be pursued with diligence and as
soon thereafter aas reasonably possible and in compliance with law, the Agency shall hold itpublic
hearing on it resolution of necessity regarding acquisition of such parcels. Nothina Contained herein
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shall be construed to mean that the Agency is agreeing or has agreed to adopt it resolution Of
necessity or to exercise the right of eminent dornain, which resolution shall be adopted and right
shall be exercised only in the absolute discretion of the Agency and only after the Agency has
made all determinations required by applicable law, The Developer specifically acknow1cdges that
this Agreement shall not affect or limit in any manner (i) the conduct of any actions which may be
taken by the Agency in connection with its consideration of the applicable resolution(s) of
necessity nor (1d) the exercise of the Agency's discretion under and compliance with its Owner
Participation Rules. If the Agency, acting in its sole, absolute and Unfettered discretion, dUlV ,adopts
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the applicable resolution(s) of necessity, then the Agency shall thereafter promptly commence.
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and, shall thereafter diligently pursue, subject to force majeure causes, the condemnation action(s)
contemplated by the resolution(s) of necessity, subject to the terms and conditions of the DDA.
4. Discretionary Approvals.
The Developer acknowledges that neither the Agency nor the City of Redlands ("City")
may commit itself to any future. discretionary approvals (including, without 11mitation, approvals
required under CE A, state planning and zoning law, and/or state legislative bodies) and are not
bound to approve the DDA contemplated herein or any other discretionary approval which may be
required for the Project. The Agency shall have no liability to the Developer if the Pal-ties for any
reason whatsoever fail to approve as DDA or the City or the Agency fail to grant any other
discretionary approval. The Developer acknowledges and agrees that nothing herein restricts nor
shall be deemed to restrict the Agency's Board in the free exercise of its discretion or in the free
exercise of its executive, quasi-judicial or legislative powers.
5Termination.
Either Party may terminate this Agreement upon thirty (30) days written notice to the other
Party. This Agreement shall automatically terminate upon execution of the DDA by both Parties,
thereafter, all terms and conditions hereof shall be null, void and superceded by the terms and
conditions of the DDA, except as provided herein.
6, Avoraisals and Environmental and Other Studies.
The Agency shall promptly provide the Developer with copies of any appraisals and
environmental reports and any other studies, which the Agency prepare,,, or causes to be prepared,
or otherwise obtains with respect to all or any portion of the Site or the Project, subject to any legal
requirements with respect to con fide ntial ity.
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7. Notices.
All notices required or permitted hereunder shall be delivered in person or by facsinille,
by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested
registered 4-1
to such Party at its address shown below, or to any other place designated in writing by such
Party.
The Agency: John Davidson, Executive Director Redevelopment
Agency of the City of Redlands
35 CaJon Street. Suite 200
P.O- Box 3005 (Mailing)
Redlands, California 92373
Facsimile No.: (909) 798-7503
With a copy to: Daniel J. McHugh, City Attorney
City of Redlands
35 Cajon Street, Suite 200
P.O. Box 3005 (Mailing)
Redlands, California 92373
Facsimile No.: (909) 798-7503
The Developer: Redlands Land Acquisition Company, L.P. c/o
General Growth Properties
110 North Wacker Drive
Chicago, Illinois 60606
Attention: General Counsel
Facsimile No.: (3 12) 960-5476
With a copy to: Brown, Winfield & Canzoneri, Inc.
300 South Grand Avenue, Suite 1500
Los Angeles California 90071-3125
Attention: Anthony Canzoncri, Esq.
Facsimile No.: (21 3) 687-1703
Any such notice shall be deemed received upon delivery, if delivered personally
or by facsimile, one (1) business day after delivery to an overnight courier, if delivered by
overnight courier and three (3) business days after deposit into the t"Tnited States Mail. if
delivered by registered or certified mail.
S. NTo Obligafion to Third Parties,
This Acrteernent shall not be deemed to confer any rights upon, nor obligate either
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of the Parties to this Agreement to, any person not a Party to this Agreement.
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9. Defense and h7der�anity
The Developer shall defeird, indemnify and hold harmless the Agency and the City.
and their respective elected officials, officers and employees from and against lil any and all
third-party claims, losses,. proceedings. datuages, causes of action, liability, costs and expenses
(inelr.rding reasonable attorneys' fees, and including in-house counsel fees at rates prevailing in
San Bernardino County. California) arising from or in connection with: or caused by, any'
negligent or intentionally wrongful act or omission of the Developer and its officers. employees
aand agents in connection with the Developer carrying out its obligations under- this Agreement,
and (ii) any action or proceedita,2 brought by any third party=- challenging the validity of any
provision of, or the entirety of this Agreement, or any of the transactions conternplated by this
Agreement, 'arncl/ t ilii any breach by the Developer of Frray° provision of this Agreement.
including any breach by the Dev=eloper of this Defense and Indemnity provision. This provision
shall survive any termination of this Agreement pursuant to section S, hereof:,
10, Attor iieys' fees:
In the event any action is commenced to enforce or interpret the terms or condition
of this Agreement,;the prevailing party in such action, whether resolved by mediation, arbitration
or judgment, shall; in addition to any costs and other relief, be entitled to the recovery of its
reasonable attorneys' tees. If Agency utilizes its in-house counsel, Agency shall be entitled to
attorneys' fines incurred for irk-house- counsel at rates prevailing in San Bernardino County,
California. This provision shall survive any termination of this Agreement pursuant to section 5
hereof.
11. Miscellaneous.
This Agreement and the legal relations between the Parties hereto shall be governed
by and construed and enforced in accordance with the lbws of the State of California. Any tern
herein can be waived only lay a written waiver signed by the Party against whom such waiver is
to be asserted. This Agreement maybe execrated in counterparts, each of which when sea executed
shall be deemed an original, and all of which.h, when taken together, shall constitute but one and
the sarne instrument. Except as expressly modified or supplemented by this Agreement, the P.I
shall remain in frill ford and affect in accordance with its terms,
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IN WITNESS WHEREOF, the Parties have executed this AcqUisition Funding
Agreernentas of the day and year first written above.
The. "AGENCY"
THE REDEVELOP INIENT AGENCY OF THE
CITY OF REDLANDS, a PLiblic body corporate and politic
l3v:
S,4us. n Peppier, Chairperson
ATTEST
By:
L�or_ije-,Poyzer. Sc4 y
THE "DEVELOPER"
REDLANDS LAND ACQUISITION COMPANY L.P.
By: REDLANDS LAND ACQUISITION COMPANY L.LC., a Delaware
limited liability company, its general partner
By GGPLP L.L.C., a Delaware limited liability company
its sole member
By: GGP LIMITED PARTNERSHIP, a Delaware
limited partnership, its managing member
By'. GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation, its general partner
By:
Clem, Senior Vice President
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MINUTES of a regular meeting of the Board of Directors of the Redevelopment Agency of
the City of Redlands held in the City Council Chambers, Civic Center, 35 Cajon
Street, at 3:31 P.M. on January 4, 2005,
PRESENT Susan Peppler, Chairperson
Gilberto Gil, Vice Chairperson
Pat Gilbreath, f3oardmember
Gary George, Boardmember
Jon Harrison, Boardmember
ABSENT None
STAFF John Davidson, Executive Director; Daniel J. McHugh, Agency Attorney;
Michael Reynolds, Agency Treasurer; Jeffrey L, Shaw, Community
Development Director; James R. Bueermann, Police Chief; and Lorrie Poyzer,
Agency Secretary.
CONSENT CALENDAR
Minutes - The minutes of the regular meeting of December 21, 2004, were
unanimously approved as submitted on motion of Mrs. Gilbreath, seconded by
Mr, Harrison,
,Acquisition Funding Agreement - Redlands Promenade Project - On
motion of Mrs. Gilbreath, seconded by Mr. Harrison, the Board of
Directors unanimously approved an acquisition funding agreement with
Redlands Land Acquisition 'Company, L.P. for the Redlands Promenade
Project on approximately 13 acres located on the west side of Eureka
Street between the Eurekal0range Street Interstate 10 Freeway off-ramp
and the BNSF railroad tracks and authorized execution of the document
on behalf of the Redevelopm,-Nnt Agency.
Contract - Redlands Promenade Project - On motion of Mrs. Gilbreath,
seconded by Mr. Harrison, the Board of Directors unanimously approved a
contract with LSA Associates, Inc. for professional services to prepare the
environmental document for the Redlands Promenade Project on
approximately 13 acres located on the west side of Eureka Street bebmeen the
Eureka/Orange Street Interstate 10 Freeway off-ramp and the BNSF railroad
tracks in the amount of $56,233,00 for Task 1 and $88,795.00 for Task 2 and
authorized execution of the document on behalf of the Redevelopment Agency.
Subordination Agreement - Wolbert - On motion of Mrs. Gilbreath, seconded
by Mr. Harrison, the Board of Directors unanimously approved to subordinate
an existing silent second trust deed with Laura Wolbert, 1428 Padua Avenue,
and authorized execution of tlr-�e document on behalf of the Redevelopment
Agency.
Redevelopment Agency
January 4,2005
Page 1
MINUTES of a regular meeting of the Board of Directors of the Redevelopment Agency of
the City of Redlands held in the City Council Chambers, Civic Center, 35 Cajon
Street, at 4:25 P.M. on December 21 2004,
PRESENT Susan Peppler, Chairperson
Gilberto Gil, Vice Chairperson
Pat Gilbreath, Boardmember
Gary George, Boardmember
Jon Harrison, Boardmember
ABSENT None
STAFF John Davidson, Executive Director; Daniel J. McHugh, Agency Attorney;
Michael Reynolds, Agency Treasurer; Jeffrey L. Shaw, Community
Development Director; Cletus Hyman, Deputy Police Chief; and Lorrie Poyzer,
Agency Secretary.
JOINT MEETING - REDEVELOPMENT AGENCY AND CITY COUNCIL
Resolution No. 388 - Great Neighborhood Program - Mrs. Gilbreath moved to
adopt Resolution No. 388, a resolution of the Board of Directors of the
Redevelopment Agency of the City of Redlands authorizing the use of low- and
moderate-income housing funds outside the Redlands Project Area, and
approved a participation agreement with., Kathleen Kjellberg, 239 Nordina
Street, for $10,000,00. Motion seconded by Mr. Gil and carried unanimously,
Mrs. Gilbreath moved to approve the Declarations of Covenants and
Restrictions dated December 21, 2004, covering said properties. Motion
seconded by Mr. Gil and carried unanimously. (Also see Resolution No. 6349
in the City Council minutes for December 21, 2004)
CONSENT CALENDAR
Minutes - The minutes of the regular meeting of December 7, 2004, were
unanimously approved as submitted on motion of Mrs. Gilbreath, seconded by
Mr. George.
Agireement - Redlands Land Acquisition Company, L.P. - Mrs. Peppier
moved to continue this item to the Redevelopment Agency meeting of
January 4, 2005, as requested by representatives from General Growth
Partners. Motion seconded by Mr. Harrison and carried unanimously.
PUBLIC COMMENTS
North Redlands Rede Lelo n�� nt Polect - Connie McFarland, Lugonia
Community Association, complimented Mr. Harrison for his attendance at four
meetings held recently regarding the North Redlands Redevelopment Project,
She questioned why Mrs, Gilbreath and Mrs. Peppler, and Mr. George had not
Redevelopment Agency
December 21,2004
Page 1