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RESOLUTION (ID # 4238) DOC ID: 4238 C
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Allen Parker M/CC Meeting Date: 12/21/2015
Prepared by: Allen Parker, (909) 384-
5122
Dept: City Manager Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Execution Establishing of an Exclusive Right to Negotiate Agreement for Former
Norton Air Force Base Parcel G-1. (#4238)
Current Business Registration Certificate: Yes
Financial Impact:
There is no cost to the City for this agreement.
Motion: Adopt the Resolution.
The City of San Bernardino and The Inland Valley Development Agency desire to enter
into an Exclusive Right to Negotiate Agreement for Former Norton Air Force Base
Parcel G-1. Please refer to the attached Agreement and Resolution for further
information.
City Attorney Review:
Supporting Documents:
ENA with IVDA reso(DOC)
agrmt 4238 (PDF)
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1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AN EXCLUSIVE RIGHT TO
3 NEGOTIATE AGREEMENT FOR FORMER NORTON AIR FORCE BASE PARCEL G-
4 1 BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE INLAND
VALLEY DEVELOPMENT AGENCY.
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6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The City Manager is hereby authorized to execute an Exclusive Right to
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Negotiate Agreement for Former Norton Air Force Base Parcel G-1 with the Inland Valley
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Development Agency, attached hereto as Exhibit"A" and incorporated herein. v
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12 SECTION 2. This authorization shall be null and void if the agreement is not signed
13 within 60 days of the passage of this Resolution. 00
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE EXECUTION OF AN EXCLUSIVE RIGHT TO
2 NEGOTIATE AGREEMENT FOR FORMER NORTON AIR FORCE BASE PARCEL G-
3 1 BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE INLAND
VALLEY DEVELOPMENT AGENCY.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof, held on the
6
day of , 2015, by the following vote, to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT
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9 MARQUEZ a
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10 BARRIOS
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14 NICKEL
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15 JOHNSON L
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16 MULVIHILL
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18 Georgeann Hanna, City Clerk z
19 The foregoing Resolution is hereby approved this day of , 2015.
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22 R. Carey Davis, Mayor
City of San Bernardino
23 Approved as to form:
24 Gary D. Saenz, City Attorney
25 By.
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EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT
FOR FORMER NORTON AIR FORCE BASE PARCEL G-1
BY AND BETWEEN
THE CITY OF SAN BERNARDINO AND
THE INLAND VALLEY DEVELOPMENT AGENCY
THIS EXCLUSIVE RIGHT TO NEGOTIATE AGREEMENT (the "Agreement"),is dated,
entered into and effective as of , 2015 (the "Effective Date"), and is entered into by and
between the City of San Bernardino, a Municipal Corporation, (the "CITY), and the Inland Valley
Development Agency (the"IVDA") which is a joint powers authority organized and existing under
the laws of the State of California,upon a portion of the former Norton Air Force Base(the"NAFB")
located within the City of San Bernardino, California.
RECITALS
The property comprising the former NAFB was approximately 2,100 acres in size, portions Z
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of which have been either owned in fee by, or under lease to, IVDA for purposes of facilitating the c
effective conversion of the property into commercial reuse. v
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The IVDA previously sent a Letter of Intent dated November 14, 2014 (Exhibit 1) which
identified general terms and conditions for a potential purchase of the Galaxy Center property, also 0
known as former NAFB Parcel G-1 ("Parcel G-1"). Notwithstanding, the parties presently have no 00
other existing agreements, arrangements or other contractual commitments between them for any
matter relative to the subject matter contained herein. 7
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THEREFORE, IN CONSIDERATION OF THE COVENANTS AND PROMISES
CONTAINED HEREIN, THE CITY AND THE IVDA AGREE AS FOLLOWS:
Section 1. Term of Agreement.
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(a) The rights and duties of the parties established by this Agreement shall commence
immediately upon the Effective Date, and except as provided in Subsection(c) below,
this Agreement shall terminate and be of no further force or effect after 4:30PM,
California time six months after the Effective Date, unless prior to that time either:
(i) the parties execute a separate purchase and sale agreement (the "Purchase and
Sale Agreement") or such other agreements which may include the release and
acquisition by the IVDA of all or a portion of the Parcel G-1, subject to
applicable review and approval by the United States Government, in
accordance with such mutually acceptable terms to be negotiated and agreed
upon by and between the parties which documents specifically reference this
Agreement and extend the termination date hereof;or
(ii) the parties may mutually agree to extend the termination date of this Agreement
for such period of time as they may agree each at their sole discretion.
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(b)
The initial term of this Agreement, and including all extensions of the term as
applicable, is referred to in this Agreement as the "Negotiation Period." In
consideration of IVDA obtaining the Negotiation Period the IVDA in the event utility
costs paid by the City for Parcel G-1 exceed the $2,000 deposit made by the IVDA
under Section 2(b)then the IVDA will shall reimburse the CITY on a monthly basis for
such excess utility costs up to an additional $2,000 per month(total maximum payment
by the IVDA of $4,000). If the City has incurred such excess utility cost then the
CITY shall furnish IVDA with copies of the utility bills and the IVDA will reimburse
the CITY for such excess costs up to the maximum additional amount of$2,000 within
thirty (30) days after receipt of the bills.
(c) Provided that the IVDA is not then in default pursuant to any term or provision of this
Agreement,the IVDA shall have the right to extend the Negotiation Period for one (1)
additional term of six (6) months on or before ten (10) calendar days prior to the
expiration of the initial Negotiation Period,which extension shall be on the same terms z
and conditions as the Negotiation Period. w
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Section 2. Obli atg ions of the IVDA.
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(a) During the Negotiation Period, the IVDA shall proceed diligently and in good faith to 2
complete reasonable due diligence efforts with regard to Parcel G-1 and shall commit c�
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sufficient resources to accomplish such obligations. CO
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Within thirty 30 days after the Effective
Date and thereafter on the first business day of
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each calendar month of the Negotiation Period,IVDA shall deposit with the CITY a N
in the amount of Two Thousand Dollars $2 000 each such deposit,and all such �.
deposit ( )( p
deposits collectively being referred to herein as the"Deposit"). The CITY shall place a�
the Deposit into an interest bearing account. IVDA's failure to deliver timely any
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II Deposit shall be a default of this Agreement. The Deposit may be used by the CITY for
the payment of third party costs in connection with the negotiation of the Purchase and s
Sale Agreement, including the CITY's legal fees and financial and other consulting
services and for reimbursement of utility cost as provided in Section 1(b) above. The Q
CITY shall have no obligation(from the Deposit or otherwise)to reimburse IVDA's costs
prior to the entry into the Purchase and Sale Agreement.
(c) The Deposit shall be non-refundable unless the CITY shall be found by a court or other
tribunal having jurisdiction to have materially breached this Agreement, in which event
an unused portion of the Deposit shall be refunded to IVDA.
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Section 3. CITY Not to Negotiate with Others.
(a) During the Negotiation Period, the CITY and its agents and their consultants shall not
without the IVDA's prior written consent negotiate with any other person or entity for
the purpose of considering any form of purchase proposal,lease or other agreement for
Parcel G-1, except as provided in 3(b)below.
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(b) Exceptions to the limitations imposed upon the CITY as to discussions with third
parties are the following:
(i) A list of existing lessees and permitted users of Parcel G-1 is attached as Exhibit
"2". The CITY may continue to allow the existing lessees and permitted users
to occupy the property; provided that no extension of such use for a period
longer than 30 days(or a particular one time use more than 60 days in advance)
will be made without the prior consent of the IVDA. All such permitted uses
shall reserve a right of access by the IVDA to Parcel G-1 and all improvements
thereon to perform due diligence as provided in Section 4(b) below.
(c) During the Negotiation Period, the CITY shall not be precluded, however, from
furnishing to other persons or entities unrelated to the IVDA all currently existing and
compiled publicly available information in the possession of the CITY relating to z
Parcel G-1 and the financial activities and interests of the CITY in Parcel G-1 and any w
other matters which are public records.The CITY may also provide any other currently
existing and compiled publicly available information, or such other similar P ublic v
information that becomes available during the Negotiation Period, in the possession of x
the CITY, as customarily would be furnished to persons requesting information from
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the CITY concerning its activities, goals, financial matters and other matters of a
similar nature. CO
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Section 4. CITY Cooperation. During the Negotiation Period, the CITY shall use its best CO
efforts to: N
(a) Cooperate with and assemble at the request of the IVDA all written materials, plans, E
studies,reports, and documents relating to Parcel G-1 and its facilities which may be in 0
the possession of or are reasonably available to the CITY.
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(b) Provide the IVDA with access to Parcel G-1 during the Negotiation Period for the M
purpose of conducting due diligence investigations thereon, including environmental
investigations of the sub-surfaces and surfaces of any structure or other improvements Q
exclusive of any destructive testing or removal of any items or any excavation efforts
unless the IVDA and the CITY shall have approved a license agreement (a "License
Agreement") in such form as the parties may deem necessary at their sole discretion to
protect the interests of both parties. For purposes of the above limitation, Phase I and
Phase II environmental testing and sampling shall not be considered as destructive
testing.
(c) Except for the possible lease subject to the limitations as set forth in Section 3(b)above,
the CITY will refer to the IVDA all other inquiries regarding the possible lease or use of
all or any part of Parcel G-1 during the Negotiation Period.
Section 5. Nondiscrimination. The IVDA shall not discriminate against nor segregate any
person, or group of persons on account of race, color, creed, religion, sex, marital status, sexual
orientation, handicap, national origin or ancestry in the performance of any due diligence
City.IVDA Galaxy ENA 2015
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investigations conducted by the IVDA hereunder nor in negotiations with any person or entity for
any use or occupancy of the property.
Section 6. Rights of Parties to Documents. During the Negotiation Period it is contemplated
that both parties will provide access to the other party of certain documents and access to copies of
original documents. Any documents which the IVDA has requested a copy of and for which the
IVDA has paid the appropriate duplication costs thereof determined by the CITY shall be retained by
the IVDA. All documents and working materials presented by the IVDA to the CITY and its
employees, agents and consultants shall be retained by the CITY, the provisions of this Section 6
shall survive the termination of this Agreement.
Section 7. Compliance with Law. The IVDA agrees to comply with all applicable laws in
the performance of all due diligence and exercise of any rights under this Agreement, including
environmental and safety laws and all federal and state labor standards, including but not limited to
the provisions of the Davis-Bacon Act and all other State laws relative to public bidding and the z
payment of prevailing wages on public works contracts. w
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Section 8.No Assignment of Agreement. This Agreement shall not be assigned by the IVDA v
without prior written approval of the CITY which approval the CITY may grant or refuse at its sole x
discretion.
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Section 9. Required Approvals, This Agreement is not intended as a binding agreement for the sale
of Parcel G-1 and neither party shall have any obligation to buy or sell Parcel G-I unless a separate
definitive purchase and sale agreement or other definitive agreements, have been considered, co
approved and executed in writing by the CITY and the IVDA. Section 10. Notices. All notices 04
required hereunder shall be presented in person or by fax and confirmed by First Class Untied States
mail with return receipt required. Notice shall be deemed confirmed by United States mail effective a,
the third business day after deposit with the United States Postal Service.Notice by personal service
shall be deemed effective upon receipt. Either party may change their address for receipt of notice by
notifying the other party accordingly. All notices shall be deemed to be effectively given provided
that notices are given to the primary party whether or not the requested copies are additionally given
to the addresses set forth below. ¢
TO CITY: City of San Bernardino
300 N. D Street
San Bernardino, CA 92408
Attention: City Manager's Office
TO IVDA: Inland Valley Development Agency
1601 East Third Street
San Bernardino, CA 92408
Attention: Executive Director
Section 11. Termination Rights, Legal Actions.
(a) In the event either the IVDA or the CITY should be in default of any of the provisions
City.IVDA Galaxy ENA 2015
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of this Agreement(and such default continues for thirty(3 0) calendar days after receipt
of a written notice thereof from the other party),the non-defaulting party shall have the
right to terminate this Agreement immediately upon delivery of a notice of termination
to the defaulting party and/or to exercise such rights and remedies as provided in
Section I1(b) below. Upon any such termination during the Negotiation Period, the
provisions of this Agreement as set forth in Section 6 hereof shall survive any
termination of this Agreement.
(b) After the expiration of the cure period as set forth in subsection (a) above, both parties
shall have the right to bring legal action to seek judicial enforcement of this Agreement
and each party shall bear their own legal fees and costs with respect to any such legal
action. The parties understand that the performance required under this Agreement is
unique and for that reason, among others, the other party to this Agreement will be
irreparably damaged if this Agreement is not specifically enforced. Accordingly,in the
event of any controversy concerning the performance by either party of any of their z
obligations under this Agreement, such obligations shall be enforceable by the other W
party in a court of equity by a decree of specific performance or by injunction. The
parties hereto waive any argument that monetary damages are adequate. The rights and v
remedies set forth herein shall be in addition to and not exclusive to any and all other x
remedies which either party may have hereunder at law or in equity; provided,
however, that if the IVDA elects to terminate this Agreement by reason of the CITY's
default the damages recoverable by the IVDA shall be limited to the consideration paid co
to the CITY under Section 1(b) above and the out of pocket expenses incurred in
performing due diligence for Parcel G-1. 00
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Section 12. Acceptance of Agreement. Delivery of facsimile by the parties shall be Y
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acceptable with final originally executed copies to be exchanged as soon as practicable thereafter.
Section 13. Authority. Each signatory to this Agreement represents and warrants that he or
she has the authority to execute this Agreement on behalf of the principal who he or she represents. E
This Agreement may be executed by the parties in counterpart. o
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Section 14.No Third Party Beneficiaries and No Additional Parties to Agreement. There are
no third party beneficiaries to this Agreement. The only parties to this Agreement are the IVDA and
the CITY.None of the member public agencies of the IVDA (except for the the CITY) are parties to
this Agreement nor shall any individual acting on behalf of a member public agency of the IVDA be
bound by this Agreement in any respect.
Section 15. Severability. The illegality,invalidity or unenforceability of any provision of this
Agreement shall not affect the legality, validity or enforceability of any other provision of this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the dates
indicated below each of their signatures as the same appears hereinafter.
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CITY IVDA
City of San Bernardino, a Municipal Inland Valley Development Agency, a
Corporation joint powers authority
By: By:
Name: Name:
Its: Its:
Date: Date:
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