HomeMy WebLinkAbout2010-307
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(NOTE: COMPANION RESOLUTION CDC/2010-51)
RESOLUTION NO. 2010-307
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING AND AUTHORIZING THE MAYOR
OF THE CITY OF SAN BERNARDINO ("CITY") TO EXECUTE THAT
CERTAIN AGREEMENT BY AND AMONG THE CITY AND THE INLAND
VALLEY DEVELOPMENT AGENCY ("IVDA"), THE COUNTY OF SAN
BERNARDINO ("COUNTY") AND THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") FOR THE ACQUISITION,
DEVELOPMENT AND REHABILITATION OF PROPERTIES IN THE 3RD
STREET CORRIDOR BETWEEN WATERMAN AVENUE AND
TIPPECANOE AVENUE IN THE UNINCORPORATED PORTION OF THE
COUNTY OF SAN BERNARDINO.
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10 WHEREAS, the Third Street Project Area displays substantial and pervasive symptoms of
11 blight and cannot be remedied by private parties acting alone without community redevelopment
12 assistance; and
13 WHEREAS, the City, the County, the IVDA and the Agency mutually desire to undertake
14 joint land use and infrastructure planning work affecting the Third Street Project Area or any portion
15 thereof, and to thereafter permit the construction and development, other permissible uses consistent
16 with the land use designations as may hereafter be approved which construction and development
17 will contribute directly and continuously to the economy of the City and of the surrounding region,
18 and to the general benefit and welfare of its residents; and
19 WHEREAS, the Agency intends to purchase one (1) or more real properties located within
20 the Third Street Project Area through the use of legally available funds and through legally available
21 means; and
22 WHEREAS, the City, the County and the Agency intend to utilize certain funds of the IVDA
23 after the approval and execution of this Agreement for use by the County, the IVDA and the Agency
24 in the manner as hereinafter provided for the County/IVDA Housing Funds and the Agency/IVDA
25 Housing Funds (as defined below) which funds shall be used in addition to other legally available
26 funds and administered by the Agency with the approval of the IVDA governing board to pay for
27 costs and expenses incurred by the Agency within the Third Street Project Area and other purposes
28 consistent with the use of such funds in accordance with the Inland Valley Development Plan (the
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2010-307
1 "Redevelopment Plan") and the Community Redevelopment Law ("CRL"); and
2 WHEREAS, the Parties intend: (i) to use the IVDA Housing Funds in addition to their
3 existing funds to initiate and complete a comprehensive joint land use and infrastructure planning
4 effort to encourage sustainable economic development and enhanced single family home ownership
5 in the Third Street Project Area and adjacent areas, (ii) to facilitate the procurement of specialty
6 consultants and staffing resources to implement planning, design, entitlement and housing strategies
7 in the Third Street Project Area, and (iii) to use the IVDA Housing Funds in accordance with this
8 Agreement subject to approval by the IVDA governing board of each disbursement of such IVDA
9 Housing Funds; and
10 WHEREAS, the City and the County intend to consider mutual cooperation and potential
11 delegation as to present and future code enforcement authority in connection with and relating to the
12 Third Street Project Area, and the City and the County intend to enforce all applicable jurisdictions,
13 until such time as all or each portion of the Third Street Project Area is annexed into the City, and
14 thereafter in accordance with the standard procedures of the City, including the Municipal Code, for
15 the enforcement of building code violations generally within the municipal boundaries of the City.
16 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
17 BERNARDINO DO HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS:
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Section 1.
The information set forth in the above recitals of this Resolution is true and
19 correct.
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Section 2.
That the Mayor of the City of San Bernardino is hereby authorized by the
21 Mayor and Common Council to execute on behalf of the City, the Agreement, a copy of which is
22 attached hereto as Exhibit "A".
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Section 3.
This Resolution shall take effect per City Charter by this Mayor and Common
24 Council.
25 I II
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27 III
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2010-307
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING AND AUTHORIZING THE MAYOR
OF THE CITY OF SAN BERNARDINO ("CITY") TO EXECUTE THAT
CERTAIN AGREEMENT BY AND AMONG THE CITY AND THE INLAND
VALLEY DEVELOPMENT AGENCY ("IVDA"), THE COUNTY OF SAN
BERNARDINO ("COUNTY") AND THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") FOR THE ACQUISITION,
DEVELOPMENT AND REHABILITATION OF PROPERTIES IN THE 3RD
STREET CORRIDOR BETWEEN WATERMAN AVENUE AND
TIPPECANOE AVENUE IN THE UNINCORPORATED PORTION OF THE
COUNTY OF SAN BERNARDINO.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
meeting thereof,
9 Common Council of the City of San Bernardino at a j oint regular
10 held on the 7th day of September, 2010, by the following vote to wit:
11 Council Members: Aves Nays Abstain Absent
12 MARQUEZ -L
DESJARDINS x
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BRINKER x
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SHORETT x
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KELLEY x
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JOHNSON x
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MC CAMMACK x
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a~ h.~
Cfty""Clerk
.,.~
q day of September , 2010.
21 The foregoing Resolution is hereby approved this
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25 Appro ed as to Form:
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2010-307
1 EXHIBIT "A"
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REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY, CALIFORNIA
AND RECORD OF ACTION
September 28, 2010
FROM: MARY JANE OLHASSO, Administrator
Economic Development Agency
SUBJECT: APPROVE COOPERATIVE AGREEMENT BETWEEN COUNTY OF SAN
BERNARDINO, THE INLAND VALLEY DEVELOPMENT AGENCY, THE CITY
OF SAN BERNARDINO, AND THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
RECOMMENDA TION(S)
Approve a Cooperative Agreement No. 10-908 between the County of San Bernardino, the
Inland Valley Development Agency, the City of San Bernardino and the Redevelopment Agency
of the City of San Bernardino (the Parties) for the preparation of a Joint Land Use and
Infrastructure Planning Study for a Third Street Project Area that is generally located north of
Third Street, south Of Fifth Street between Waterman Avenue and Tippecanoe Avenue in San
Bernardino.
(Affected Districts: Third and Fifth)
(Presenter: Mary Jane Olhasso, Administrator, 387-9801)
BACKGROUND INFORMATION
The Inland Valley Development Agency (IVDA), a Joint Powers Authority, was established
January 24, 1990. The original members of the IVDA included the cities of Loma Linda, Colton,
Highland, San Bernardino and the County of San Bernardino. The IVDA is a specially legislated
redevelopment area responsible for the non-aviation portion of the former Norton Air Force Base,
which includes approximately 13,000 acres of surrounding properties to the airport. In April 1994,
the Board of Supervisors approved an agreement with IVDA to permit the payment of the low-
and moderate-income housing funds (LMIHF) generated within the County's unincorporated area
of IVDA to the County (non-LMIHF are retained by IVDA and administered directly by the JPA).
The proposed Cooperative Agreement provides that the Parties will cooperatively study the legal,
political, and fiscal feasibility of the redevelopment of properties located within the boundaries of
the Third Street Project Area (Area) in the unincorporated area of the county, north of Third
Street, south of Fifth Street, between Waterman and Tippecanoe Avenues to enhance regional
economic development and redevelopment opportunities that may be more effectively
administered by and through multi-jurisdictional planning and redevelopment efforts. The Parties
also intend to assess land use designations/zoning, infrastructure planning and code enforcement
Page 1 of 2
cc: EDA-Olhasso wI agree
Contractor c/o Dept wI agree
ACR-Acct Pay Mgr wI agree
EBIX/BPO c/o Risk
County Counsel-Blakemore
CAO-Cole
RDA- Thomas
LAFCO
File - wI agree
jr 10/4/10
ITEM 28
MOTION
AYE
5
RD
BY\
FOR COUNTY USE ONLY
..JL New Vendor Code Dept. A , no~mber
,-- Change SC CDH
Cancel
County Department Dept. Orgn. [C:ontractor's License No.
Economic Development Agency EDF EDF
County Department Contract Representative Telephone Total Contract Amount
Marv Jane Olhasso (909) 387-9801 $0
o Revenue o Encumbered Contract Type
o Unencumbered [Xl Other: No financial obliaation
If not encumbered or revenue contract type, provide reason:
Commodity Code I Contract Start Date Contract End Date Original Amount Amendment Amount
$
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
I $
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
I $
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Amount
I $
Project Name Estimated Payment Total by Fiscal Year
IVDA 3rd Street Cooperative
Agreement FY Amount I/D FY Amount I/D
- -
- -
- -
County of San Bernardino
FAS
CONTRACT TRANSMITTAL
CONTRACTOR IVDA
FederallD No. or Social Security No.
Contractor's Representative Mike Burrows
Address 294 South Leland Norton Way, Suite #1, San Bernardino, CA 92408
Phone (909) 382-4100
Nature of Contract: (Briefly describe the general terms of the contract)
The City of San Bernardino, County of San Bernardino, IVDA, and the City of San Bernardino Redevelopment
Agency mutually desire to undertake joint land use and infrastructure planning work affecting the Third Street
Project Area, or any portion thereof, and to thereafter permit the construction and development, other permissible
uses consistent with the land use designations as may hereafter be approved which construction and
development will contribute directly and continuously to the economy of the City, the County and the surrounding
region, which will also be to the general benefit and welfare of its residents.
(Attach this transmittal to all contracts not prepared on the "Standard Contracf' form.)
..
Date
Reviewed as to Contract Compliance
Date
~ -'tJ> -to
Date
Auditor/Controller-Recorder Use Onl
o Contract Database 0 FAS
Input Date Keyed By
Revised 1/13/2009
COOPERATIVE AGREEMENT
BY AND AMONG THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, INLAND VALLEY DEVELOPMENT AGENCY AND THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
(THIRD STREET PROJECT AREA)
This COOPERATIVE AGREEMENT (this "Agreement"), dated as of September 28, 2010 (the
"Effective Date"), by and among the City of San Bernardino, a charter city (the "City"), the County of
San Bernardino, a charter county and political subdivision of the State of California (the "County"), the
Inland Valley Development Agency, a joint powers authority (the "IVDA"), and the Redevelopment
Agency of the City of the San Bernardino, a public body, corporate and politic (the "Agency"). The City,
the County, the IVDA and the Agency are sometimes individually referred to each as a "Party" and
collectively referred to as the "Parties."
Recitals
Whereas, the City, County, IVDA, and Agency mutually desire to undertake joint land use and
infrastructure planning work affecting the Third Street Project Area (as defined below), or any portion
thereof, and to thereafter permit the construction and development, other permissible uses consistent with
the land use designations as may hereafter be approved which construction and development will
contribute directly and continuously to the economy of the City and of the surrounding region, and to the
general benefit and welfare of its residents; and
Whereas, the Agency intends to purchase one (1) or more real properties located within the Third
Street Project Area through the use of legally available funds and through legally available means; and
Whereas, the City, County, and Agency intend to utilize certain funds of the IVDA after the
approval and execution of this Agreement for use by the County, IVDA, and Agency in the manner as
hereinafter provided for the Agency/IVDA Housing Funds (as defined below) which funds shall be used
in addition to other legally available funds and administered by the Agency with the approval of the
IVDA governing board to pay for costs and expenses incurred by the Agency within the Third Street
Project Area and other purposes consistent with the use of such funds in accordance with the Inland
Valley Development Plan (the "Redevelopment Plan") and the Community Redevelopment Law
("CRL"); and
Whereas, the Parties intend: (i) to use the Agency/IVDA Housing Funds in addition to IVDA
Non-housing existing funds to initiate and complete a comprehensive joint land use and infrastructure
planning effort to encourage sustainable economic development and enhanced single family home
ownership in the Third Street Project Area and adjacent areas, (ii) to facilitate the procurement of
specialty consultants and staffing resources to implement planning, design, entitlement, and housing
strategies in the Third Street Project Area, and (iii) to use the Agency/IVDA Housing Funds in
accordance with this Agreement subject to approval by the IVDA governing board of each disbursement
of such Agency/IVDA Housing Funds; and
Whereas, no County/IVDA Housing Funds may be expended without written approval of the
County Board of Supervisors; and
Whereas, the City and County intend to consider mutual cooperation and potential delegation as
to present and future code enforcement authority in connection with and relating to the Third Street
Project Area, and the City and County intend to enforce all applicable building codes in connection with
the Third Street Project Area, on behalf of their respective jurisdictions, until such time as all or each
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portion of the Third Street Project Area is annexed into the City, and thereafter in accordance with the
standard procedures of the City, including the Municipal Code, for the enforcement of building code
violations generally within the municipal boundaries of the City.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter
contained and for other good and valuable consideration, the receipt of which are hereby acknowledged,
the Parties agree as follows:
Section 1. Definitions. As used in this Agreement, the following words and terms shall
have the meaning as provided in the Recitals or in this section unless the specific context of usage of a
particular word or term may otherwise require:
"Agency" means the Redevelopment Agency of the City of San Bernardino, a public body,
corporate and politic, and its officials, officers, employees, volunteers and agents.
"Agency/IVDA Housing Funds" mean the low and moderate housing income funds as required
by the CRL to be used and applied for certain housing purposes that have been transferred from
the IVDA to the Agency in accordance with the Redevelopment Plan and the adopted policies of
the IVDA.
"Agreement" means this Agreement entered into by and among the City, the County, the IVDA
and the Agency.
"City" means the City of San Bernardino, a charter city, and its officials, officers, employees,
volunteers and agents.
"County" means the County of San Bernardino in the State of California.
"County/IVDA Housing Funds" mean the low and moderate housing income funds as required by
the CRL to be used and applied for certain housing purposes that have been transferred from the
IVDA to the County in accordance with the Redevelopment Plan and the adopted policies of the
IVDA.
"Effective Date" means the date first above referenced in the introductory paragraph of this
Agreement.
"Environmental Laws" refers collectively to any and all federal, state, municipal or local statute,
law, ordinance, code, rule, regulation, permit, order, or decree regulating, relating to, or imposing
liability or standards of conduct on a person discharging, releasing or threatening to discharge or
release or causing the discharge or release of any hazardous or solid waste or any hazardous
substance, pollutant, contaminant, water, wastewater or storm water, as amended from time to
time.
"IVDA" shall mean the Inland Valley Development Authority, a joint powers authority created
pursuant to Government Code Sections 6500, et seq.
"IVDA Housing Funds" shall mean the low and moderate income housing funds of the IVDA
designated as such pursuant to Section 33334.2 of the CRL as generated within the Inland Valley
Redevelopment Project Area including the portion thereof previously payable to the Agency and
County as the Agency/IVDA Housing Funds and the County/IVDA Housing Funds.
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, .
"IVDA Non-Housing Funds" shall mean those funds of the IVDA as generated within the Inland
Valley Redevelopment Project Area which are not low or moderate income housing funds.
"Laws" means all federal, state, municipal and local laws, statutes, codes, ordinances, rules,
regulations and orders, including, without limitation, the Environmental Laws, as amended from
time to time, including the CRL.
"Party" or "Parties" means the City, the County, the IVDA and the Agency referred to
individually or collectively.
"Project" means the preparation of a joint land use and infrastructure plan for which the Agency
shall function as the lead agency for purposes of leading and directing such planning efforts, and
the IVDA and County shall participate as members of the Technical Advisory Committee
throughout plan development and implementation. "Project Study Area" means the parcels of
land within the IVDA Redevelopment Project Area and Third Street Project Area which will be
the subject of multi-jurisdictional planning activities, as more thoroughly described in Exhibit
"B" attached hereto and incorporated herein by this reference.
"Redevelopment Project Area" means the Inland V alley Development Project Area as identified
in the Redevelopment Plan as duly adopted by the IVDA in July, 1990.
"Third Street Project Area" means the area bounded by Tippecanoe Avenue, Waterman Avenue,
Fifth Street and the area immediately north of Third Street, located in the unincorporated area of
the County and in the State, as more thoroughly described in Exhibit "A" attached hereto and
incorporated herein by this reference.
Section 2. Term. The term of this Agreement shall be One Year (1) year from and after the
Effective Date, unless otherwise terminated or extended by mutual agreement of the Parties.
Section 3. Joint Land Use and Infrastructure Planning. The Parties will cooperatively study
the legal, political and fiscal feasibility of certain properties located within the boundaries of the IVDA
Redevelopment Project Area located in close proximity to the IVDA to enhance regional economic
development and redevelopment opportunities that may be more effectively administered by and through
multi-jurisdictional planning and redevelopment efforts. The Parties also intend to assess current zoning,
infrastructure, planning, entitlement, and code enforcement issues and opportunities (the "Project Study").
It is contemplated that the City of San Bernardino will serve as lead agency for purposes of directing the
planning activities under this Agreement, with participation and direction from representatives of the
Parties. Such participation and direction shall be facilitated through the formation of a Technical
Advisory Committee consisting of a minimum of One (1) Staff representative from the County, the City,
and the IVDA. The IVDA will facilitate procurement activities for consultant services, as needed, on
behalf of the Parties. The proposed Scope of Work for the Joint Land Use and Infrastructure Planning
phase is set forth in Exhibit "A."
Section 4. Third Street Proiect Area Annexation. It is the intent of the parties to discuss
potential future annexation by the City in the Third Street Project Area, as appropriate, in furtherance and
support of the planning activities as set forth in Section 3.
Section 5. Agency/County/IVDA Acquisition. The Agency, County, and/or the IVDA may
purchase or acquire improved or unimproved real properties within the Third Street Project Area (within
their respective jurisdictions) through the use of any legally available funds and through the use of any
legally available means pursuant to the CRL and the Redevelopment Plan during the term of this
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Agreement. To the extent necessary, the Agency and/or County may enter into one or more separate
cooperative agreements with the IVDA to address other issues and project specifics that are not set forth
in this Agreement.
Section 6. Code Compliance. During the term of this Agreement, to the extent allowed by
law, the County may desire to delegate to the City the right of enforcement of certain applicable County
building codes in connection with, and relating to the Third Street Project Area, and the building
conditions as may be found therein. Such delegation shall be subject to a separate agreement(s) between
the County and City.
Section 7. Flood Control Channel Realignment. As a function of the planning and design
activities set forth in Section 3, the Parties will analyze the benefits and opportunities for the Agency
and/or the IVDA to enter into one or more agreements with the County of San Bernardino Flood Control
District with respect to the realignment or other alternate use of the (i) presently unenclosed earthen flood
control channel designated as the City Creek Bypass Flood Control Channel, and (ii) the Little Third
Street public right-of-way located to the north of the City Creek Bypass Flood Control Channel. During
the planning phase, it is the intent of the Parties that such County properties will be improved and
otherwise utilized for public purposes or realigned to afford a higher degree of land utilization in
furtherance of any subsequent private development within the Third Street Project Area.
Section 8. Compliance with All Laws. In the course of performing this Agreement and/or
any Project related activity, the Parties agree to comply with all applicable Laws including the CRL and
the Redevelopment Plan.
Section 9. Mutual Indemnification. The City, the County, the IVDA and the Agency shall
defend, indemnify, protect and hold harmless the other Party, or other Parties, their officials, officers,
employees, volunteers and agents free and harmless from any and all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons,
including wrongful death, to the extent arising out of or incident to any intentional or negligent acts,
errors or omissions of the indemnifying Party, or the Parties, their officials, officers, employees, or agents
in the performance of the Project or this Agreement, including, without limitation, the payment of
reasonable attorneys' fees, court costs, expert witness fees and other related costs and expenses of
defense. The sole exception to the indemnifying Party's obligation to indemnify shall be for acts of
negligence or willful misconduct of the indemnified Party, or Parties, their officials, officers, employees,
or agents. This is a comparative negligence provision and each Party shall bear its own costs to the extent
to which they are each negligent. The indemnifying Party or Parties shall defend, at their own cost,
expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that
may be brought or instituted against the indemnified Party, or Parties, their officials, officers, employees,
volunteers and agents. The indemnifying Party or Parties shall pay and satisfy any judgment, award or
decree that may be rendered against the indemnified Party or Parties, their officials, officers, employees,
volunteers and agents in any such suits, actions or other legal proceedings. Each Party's obligation to
indemnify shall not be restricted to insurance proceeds, if any, received by any other Party its officials,
officers, employees, volunteers and agents. This mutual indemnification provision shall survive the
execution, performance, expiration and early termination of this Agreement.
Section 10.
Audit and Inspection of Records.
Section 10.1. The Parties agree that their respective records, which shall include, but not be
limited to, Project files, accounting records, written policies and procedures, public bid documents,
engineering and construction contracts, consultant contracts and payment history, contract files (including
plans and specifications), original estimates, correspondence, change order files (including documentation
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covering negotiated settlements), invoices, and any other supporting evidence relied upon to substantiate
charges related to the Project (collectively referred to as the "Records") shall be open to inspection and
subject to audit and reproduction by each Parties' auditors or other authorized representatives at all
reasonable times, in order for the Parties to enforce their rights under this Agreement and permit
evaluation of expended costs. The cost of said audit shall be at the expense of the Party requesting the
audit.
Section 10.2. The Parties, through any of their duly authorized representatives, upon providing
at least forty-eight (48) hours prior written notice, shall be afforded access to all of the Records of the
other related to the Project during normal business hours and shall be allowed to interview any employee,
consultant or contractor of the other, subject to reasonable limitations, throughout the term of this
Agreement.
Section 10.3. Information contained in the Records or other matters discovered during such
audits or inspections shall not be disclosed to third parties unless required by law or unless otherwise
resulting from or related to the pursuit of any remedies or the assertion of any rights by the Parties
hereunder.
Section lOA. All Records pertaining to the Project must be retained by the Parties for three (3)
years, or for any longer period required by law, following the complete fulfillment and satisfaction by the
Parties of all commitments made and undertaken pursuant to this Agreement.
Section 11. Exhibits. The following exhibits are hereby incorporated into and made a part of
this Agreement wherever referred to as though set forth at length, except where certain portions of
specific exhibits have been deleted or superseded by sections of this Agreement:
Exhibit "A"
Exhibit "B"
Third Street Project Area
Project Study Area
Section 12.
Dispute Resolution.
Section 12.1. Negotiation. In the event of a dispute, claim or controversy arising from or in
relation to this Agreement, the Parties agree to undertake good faith attempts to resolve said dispute,
claim or controversy within seven (7) calendar days after the receipt of written notice from the Party
alleging that a minor dispute, claim or controversy exists. The Parties additionally agree to cooperate
with the other Party or Parties in scheduling negotiation sessions. However, if said matter is not resolved
within thirty (30) calendar days after conducting the first negotiating session, any Party may then request
that the matter be submitted for mediation or arbitration as determined by the Parties.
Section 12.2. [RESERVED - NO TEXT]
Section 12.3. [RESERVED - NO TEXT]
Section 12A. [RESERVED - NO TEXT]
Section 12.5. Allocation of Fees and Costs. The Parties agree that those Parties participating in
mediation or arbitration shall share the fees of the mediator, arbitrator and all costs associated with
mediation and arbitration proceeding; provided, however, each Party that is subject to the proceeding
shall be responsible for its own legal costs, including attorneys' fees and the costs associated with experts
except as otherwise provided in Section 15 hereof.
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Section 13.
Default.
Section 13.1. Notice of Default. Failure or delay by any Party to perform any material term or
provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the
Party or Parties who are otherwise claimed to be in default by the other Party or Parties commences to
cure, to correct or to remedy the alleged default within thirty (30) calendar days after receipt of written
notice specifying such default and thereafter diligently undertakes efforts to complete such cure,
correction or remedy, such Party or Parties shall not be deemed to be in default hereunder. The Party or
Parties claiming that a default has occurred shall give written notice of default to the defaulting Party or
Parties specifying the deficiencies causing the alleged default. Delay in giving such written notice shall
not constitute a waiver of any default nor shall it change the time of default; provided, however, the non-
defaulting Party or Parties shall have no right to exercise any remedy for a default hereunder without first
delivering the written default notice as specified herein.
Section 13.2. Failure to Cure. In the event that the defaulting Party or Parties fails to
commence to cure, to correct or to remedy a default within thirty (30) calendar days following receipt of
written notice, or thereafter fails to diligently complete such cure, correction or remedy, a breach of this
Agreement shall be deemed to have occurred. In the event of a breach, the non-defaulting Party or Parties
may terminate this Agreement through a written notice of termination. Disputes regarding the facts that
may have given rise to termination under this section shall be subject to the dispute resolution provisions
provided above, but the right to terminate for such reason shall not be subject to review.
Section 13.3. Changed Conditions. In the event that any Party to this Agreement, despite its
best efforts, cannot, for reasons beyond the control of the Party, timely satisfy a contingency or condition
required by this Agreement, that Party shall provide immediate written notification to the other Parties
within seven (7) calendar days after the occurrence of the event specifying the reasons for which the
requirements cannot be met. As soon as practically possible thereafter, the Parties shall meet and confer
in good faith to consider the changed conditions and the potentially adverse impacts upon this Agreement.
The Parties shall work in good faith to resolve the problem and if this meet-and-confer process results in a
recommended restructured form of this Agreement, representatives of the Parties will recommend such
changes as necessary to the individual, Party or governing body authorized to amend this Agreement.
Any approval of such restructured Agreement shall be subject to the amendment provisions provided
below.
Section 14. Force Maieure. In addition to specific provIsIOns of this Agreement,
performance by any Party hereunder shall not be deemed to be in default, or considered to be a default,
where delays or defaults are due to the force majeure events of war, insurrection, strikes, lockouts, riots,
floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine
restrictions, freight embargoes or lack of transportation, weather-caused delays, inability to secure
necessary labor, materials or tools, delays of any contractors, subcontractor or supplier, which are not
attributable to the fault of the Party claiming an extension of time to prepare or acts or failure to act of any
public or governmental agency or entity. Delays encountered by any Party in obtaining governmental
actions, reviews, approvals and permits shall not be deemed to be an enforced delay or a force majeure
event pursuant to this section. An extension of time for any such force majeure event shall be for the
period of the enforced delay and shall commence to run from the date of occurrence of the delay;
provided, however, that the Party that claims the existence of the delay has first provided each of the other
Parties with written notice of the occurrence of the delay within seven (7) calendar days after the
commencement of such occurrence or delay. A Party's failure to timely submit such notice of the
occurrence of the delay pursuant to this Section shall be precluded from asserting the occurrence of an
enforced delay or force majeure event.
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Section 15. Attorneys' Fees. Each prevailing Party in any legal action or legal proceeding
regarding the enforcement of this Agreement shall receive its attorneys' fees, court costs, witness fees and
consultant fees. For purposes of this Agreement, attorneys' fees shall include, without limitation, the
costs, salary and expenses of the city attorney for the City of San Bernardino, and members of his office,
and the County Counsel for the County of San Bernardino and members of his/her office in enforcing this
Agreement.
Section 16. Approvals. Approvals required of the Agency, of the County or of the City, or
any officers, agents or employees of any Party, shall not be unreasonably withheld and approval or
disapproval shall be given within a reasonable time.
Section 17. Eminent Domain.
as a part of this joint planning effort.
Eminent Domain proceedings are not anticipated
Section 18.
Notices, Demands and Communications Between the Parties.
Section 18.1.1. Formal notices, demands and communications between the Agency, the County
and the City shall be deemed sufficiently given if: (i) dispatched by registered or certified mail via the
United States Postal Service, postage prepaid, return receipt requested, as designated in this section, or (ii)
by messenger service for immediate personal delivery, or (iii) by electronic transmittal, including fax
transmissions with telephonic verification receipt. Such written notices, demands and communications
may be sent in the same manner to such other addresses as the Parties may from time to time designate by
written notice to the other Parties.
Section 18.1.2. All notices, demands and communications shall be sent, as follows:
TO CITY:
TO COUNTY:
City of San Bernardino
Attn: City Manager
300 North "D" Street, 6th Floor
San Bernardino, CA 92418
County of San Bernardino
Economic Development Agency
215 N. D. Street, Suite 202
San Bernardino, CA 92415-0121
TO AGENCY:
TO IVDA:
Redevelopment Agency of the City of
San Bernardino
Attn: Interim Executive Director
201 North "E" Street, 3rd Floor
San Bernardino, CA 92401
Inland Valley Development Agency
Attn: Assistant Director
294 South Leland Norton Way, Suite #1
San Bernardino, California 92408
Section 18.1.3. Notices that are dispatched by registered or certified mail through the United
States Postal Service shall be deemed to be received, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return receipt, five (5) calendar days after deposit with
the United States Postal Service. Notices that are dispatched by messenger for immediate personal
delivery services shall be deemed received upon the day dispatched. Notices dispatched by express
delivery services shall be deemed received upon execution of the delivery receipt by the Party receiving
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such notices. Notices dispatched through electronic transmittals shall be deemed received upon
telephonic verification of such receipt.
Section 18.2. Amendment. This Agreement may be amended at any time by the mutual
consent of the Parties by an instrument in writing signed by all of the Parties.
Section 18.3. Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all
obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Section 18.4. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
Section 18.5. Time is of the Essence. For each provision of this Agreement which states a
specific amount of time within which the requirements thereof are to be satisfied, time shall be deemed of
the essence.
Section 18.6. Third Party Beneficiaries. This Agreement and the performance of the Parties'
obligations hereunder are for the sole and exclusive benefit of the Parties. No person or entity who or
which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by
any provision hereof, and no such person or entity shall acquire any rights or causes of action against the
Parties hereunder as a result of any Party's performance or nonperformance of their respective obligations
under this Agreement.
Section 18.7. Governing Law. This Agreement shall be governed by the laws of the State of
California without regard to conflicts of laws principles. This Agreement shall be deemed to have been
made in the County of San Bernardino, State of California, regardless of the order of the signatures of the
Parties affixed hereto. Any litigation or other legal proceedings which arise under or in connection with
this Agreement shall be conducted in a federal or state court located within or for the County, in the State.
The Parties consent to the personal jurisdiction and venue in federal or state court located within or for the
County, in the State, and hereby waive any defenses or objections thereto including defenses based on the
doctrine of forum non conveniens.
Section 18.8. Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be construed
simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time,
days or period for performance shall be deemed calendar days and not work days. All references to the
City, to the County and to the Agency include all officials, officers, employees, personnel, agents,
volunteers, contractors and subcontractors of the City, of the County and of the Agency, except as
otherwise specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment or describe the scope, the
content, or the intent of this Agreement.
Section 18.9. Waiver. No delay or omission in the exercise of any right or remedy of a non-
defaulting Party or Parties on any default shall impair such right or remedy or be construed as a waiver.
Any Parties' consent or approval of any act by the other Party requiring its consent or approval shall not
be deemed to waive or to render unnecessary its consent to or approval of any subsequent act of the other
Party. Any waiver by any Party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
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Section 18.10. Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are
cumulative and the exercise by any Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default or any
other default by the other Party. All warranties and promises to indemnify shall survive the termination,
abandonment, expiration or completion of this Agreement.
Section 18.11. Legal Counsel. Each Party acknowledges that: (i) it has read this Agreement,
(ii) it has had the opportunity to have this Agreement explained to it by legal counsel of its choice, (iii) it
is aware of the content and legal effect of this Agreement, and (iv) it is not relying on any representations
made by any other Party or any of the employees, agents, representatives, or attorneys of any other Party.
Section 18.12. Severabilitv. In the event that anyone or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not
affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which
are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder.
Section 18.13. Binding Effect. The terms of this Agreement shall inure to the benefit of, and
shall be binding upon, each of the Parties and their respective successors and assigns.
Section 18.14. Authorized Representatives. The person or persons executing this Agreement on
behalf of the Agency, of the County and of the City warrant and represent that he/she has the authority to
execute this Agreement on behalf of that Party and that they have the authority to bind that Party to the
performance of its obligations hereunder.
Section 18.15. Entire Agreement. This Agreement constitutes the entire and integrated
agreement of the Agency, of the County and of the City with respect to the subject matter hereof and
supersedes any and all prior and contemporaneous oral or written negotiations, representations or
agreements.
[SIGNA TURES ON THE FOLLOWING PAGE]
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CITY
COUNTY
SIGNATURE PAGE TO COOPERATIVE AGREEMENT
City of San Bernardino,
a charter city
BY:~
Dated: q - \ '3 - ) 0
By:
Title: Gar
Dated:
APPROVED AS TO LEGAL FORM:
APPROVED AS TO LEGAL FORM:
~
BY.~
. Coun 0 el
A
By: p 4.1iM JJ. (fj ~ VM YVt IJlJAU,{ ~~'
City Clerk ~-I- ()
AGENCY
IVDA
Redevelopment Agency of the
CityOfs~.ardino '....
b?
By: . . ". ..'
Emil A. Marzullo,
Interim Executive Director
Inland Valley Development Agency
By: ~ 62--
Assistant Director
Dated:
Dated:
9-/0--10
APPROVED AS TO LEGAL FORM:
APPROVED AS TO LEGAL FORM:
By: \ ~tkL
- Agency C unsel
By: \~
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Exhibit "A"
Third Street Project Area
Proposed Scope of Work
The proposed Joint Land Use and Infrastructure Planning effort shall include comprehensive analyses of
the following:
. Current and Future Land Use (by Jurisdiction)
. Current and Future Roadway, Environmental, Drainage, and Utility Infrastructure
. Development of a 25-year Vision Plan/Overlay for Future Land Use and Development
. Design and Pre-Entitlement Work (as Necessary)
. Environmental Entitlements (as Necessary)
. Development of a Financing Plan
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'*
.
~
Exhibit "B"
Project Study Area
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