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HomeMy WebLinkAbout30-Mayor's Office C CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION ,<or"._' L c From: Mayor Patrick J. Morris Subject: Resolution authorizing the submittal for a multi-jurisdictional application of designation as a State Enterprise-Zone Resolution authorizing application to the State of California and Memorandum of Understanding among the City of Colton, County of San Bernardino, and Inland Valley Development Agency. Dept: Mayor's Office Date: August 7, 2006 Council Date: August 21,2006 Synopsis of Previous Council Action: Recommended Motion: Adopt resolution &JJ7lu ~ Si9~ Contact person: Phone: 5133 Emil Marzullo Supporting data attached: Ward: None FUNDING REQUIREMENTS: Amount: -0. Source: (Accl. No.) -0- (A~r:t np"~ripti()n) .0. Finance: Council Notes: Agenda Item No. 30 (t_~/-Ob L CITY OF SAN BERNARDINO-REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution authorizing the submittal of a multi-jurisdictional application for designation as a State Enterprise Zone, and a Memorandum of Understanding among the City, City of Colton, Coutlty of San Bernardino, and Inland Valley Development Agency. Background: The Enterprise Zone Program administered by the State Department of Housing and Community Development (HCD) targets economically distressed areas throughout California. Special state and local incentives encourage business investment and promote the creation of new jobs. The purpose of the Zone program is to provide tax incentives to businesses and allow private sector market forces to revive the local economy. Program Benefits Enterprise Zone companies are eligible for substantial tax credits and benefits including: c . Hiring Tax Credits - Firms can earn $31,605 or more in State tax credits for each qualified employee hired . Sales and Use Tax Credit - Zone companies may receive a sales tax and use tax credit for manufacturing or processing machinery, data processing and communications equipment and motion picture manufacturing equipment central to production and post production, to be used in the Zone, Individuals can claim a credit on the first $1,000,000 of qualifying purchases, while corporations can claim credit on the first $20,000,000 per year . Business Expense Deduction - Up front expensing of certain depreciable property . Net Operating Loss Carryover - Up to 100% of the NOL may be carried forward for 15 years . Lenders Credit - Lenders to Zone business may receive a new interest deduction . Unused tax credits can be applied to future tax years '. Enterprise Zone companies can earn preference points on state contracts c (, A focused 2002 cost-benefit study has shown that statewide, enterprise zones are achieving their intended purpose by helping the most distressed areas of the state to stop decay and stimulate growth. . In the year 2002 alone, the state realized a net gain of $249 million due to the Enterprise Zone Program. . Zones created a net benefit 1.35 times the cost or a 35% return on investment. . Zones created 44,000jobs and positive social benefits that equate to additional economic benefits for the state and the local economy. . Zone employment growth far outpaces overall employment growth in California. California Enterprise Zones have grown jobs twice as fast as they would have without the zone incentive. . Zones create jobs with average starting salaries 33% above minimum wage. . Zones contribute to added local benefits such as overall economic vibrancy from business and job growth, added sales and property tax, building permit fees, land use improvements, and reduced blight. Recent Local Experience c Locally, the Inland Valley Development Agency and San Bernardino International Airport Authority have successfully utilized a similar state program, the Local Agency Military Base Recovery Area (LAMBRA) incentives to enhance new investment and job creation at the former Norton Air Force Base location. Locational decisions by companies such as Pep Boys. Mattei, and Stater Bros. were in part made possible by the similar state tax incentives offered in that program. In the Agua Mansa Enterprise Zone. a joint effort between the counties of San Bernardino and Riverside as well as the cities of Riverside, Rialto and Colton, similar successes have resulted in the development of new industrial areas and the subsequent creation of hundreds of new jobs. If the success of the these local programs are an indication, the new enterprise zone designation would be expected to further stimulate private investment and create thousands of new jobs within our area as well. c Why Apply Now? This year, 23 of the current 42 Enterprise Zones will reach the end of their designation period (including Agua Mansa). On March 8, 2006, HCD released a Request for Proposals (RFP) to fill these upcoming vacancies. As a result of the release of the RFP, the Cities of San Bernardino and Colton (Cities), the County of San Bernardino and the Inland Valley Development Agency (IVDA) formed a steering committee in mid-May to research the feasibility of a joint application to obtain an Enterprise Zone (EZ) designation. The Proposed Zone is to be known as the San Bernardino Valley Enterprise c c c Zone (SBVEZ). IVDA has funded a consultant to assist in the preparation of the application on behalf of the participating entities, as the application process is complex. A joint EZ application has been prepared for submittal to HCD. The state application guidelines require that the proposed zone be of contiguous census blocks containing at least 51 % commercial or industrial zoned land by acreage. This application meets the 51 % threshold. Commercial and industrial areas of the city were evaluated extensively for possible inclusion based upon criteria that included contiguity to other census blocks that were appropriately zoned, relationship to major thoroughfares and freeways, job growth through new development potential, and relationship to older commercial and industrial areas as well as to areas of higher unemployment impact. The proposed zone is approximately 40 s~uare miles in size and covers a large area of the City, inclusive of most or all of the 1st, 2" , 3rd, and 6th Wards. Because of the need to meet the 51 % threshold by contiguous census blocks, many areas worthy of inclusion were excluded. However, there is a program provision allowing future expansion of the zone by up to 15% without the need for census block area contiguity. Upon a successful designation granted by the State, it is recommended that f\uther areas be evaluated for inclusion in the zone by amendment. As a multi-jurisdictional EZ application, HCD requires that the EZ be consistent in program delivery and commitment between the cooperating public agencies. A Memorandum of Understanding (MOU) has been prepared that sets forth the duties and responsibilities for each party to the SBVEZ application. Additionally, the MOU addresses the proposed budget for the first five (5) years of the EZ. Each jurisdiction will cooperate in a joint marketing strategy, and approve an annual budget as well as designate a Zone Coordinator with the duty to provide business assistance to their respective businesses within the SBVEZ. Additionally, the County will act as Zone Manager and the IVDA as the SBVEZ Oversight Committee. Financial Impact The potential positive benefits associated with the designation of an enterprise zone are compelling. Statewide, leverage of new industry, businesses and jobs by the enterprise zone designation have had positive effects which far outweigh the local cost. The multiplier effect of higher numbers of jobs and wages as well as the creation of new and expanded businesses will have far-reaching positive effects on the city for decades to come. The formation and annual operating budget has been estimated in part from the local experience in the LAMBRA and Agua Mansa areas. The first year budget includes some one-time application and certification costs such as the environmental review and application processes. The estimated total annual budget for the first year is $428,500. The first year's SBVEZ budget includes: Marketing Services and incidentals - $88,000; Professional Services $40,000; Zone Manager salary $30,000; Insurance/Auditing/Counsel - $5.500; and Environmental Review - $250,000. If the zone designation is received, the City of San Bernardino's share of the first year's budget cost c c c is estimated at $163,702. Each annual budget thereafter is estimated to be $113,000 with the City of San Bernardino portion at $43,500. IVDA has committed to fund 40% of the cost of the first year and annual operational budget. The remainder is shared by the other parties to the MOD. The first year estimate assumes a full environmental review process. This amount could be reduced if a lower clearance finding level of environmental review is authorized by the state. The savings of this lower level are as yet inestimable. The completed application is due to be delivered to the State of California Department of Housing and Community Development by September 4, 2006. The preliminary environmental review is now underway. Should the application be approved, the environmental process will need to be completed in full prior to activation of the zone. The zone is estimated to be active by January 2007. Recommendation: Adopt resolutions approving the MOD and application. 1 2 3 4 5 6 7 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN MEMORANDUM OF UNDERSTANDING IN CONNECTION WITH AN APPLICATION TO THE STATE OF CALIFORNIA FOR THE DESIGNATION OF AN ENTERPRISE ZONE WITHIN A PORTION OF ITS TERRITORIAL JURISDICTION Whereas, the City of San Bernardino (the "City") by the adoption of this Resolution hereby authorizes the preparation and submittal of a formal Application to the State of California, 8 Department of Housing and Community Development, for the designation of an Enterprise Zone 9 in participation with the Inland Valley Development Agency, the County of San Bernardino and 10 the City of Colton for the approximately 25,776-acre area as illustrated on and further described in 11 the Exhibit "A" as attached hereto together with the map of the proposed Enterprise Zone (such 12 13 area is referred to herein as the "Application Area"); and 14 15 Whereas, the Application Area IS an economically depressed, blighted 16 commercial/industrial and residential area characterized by chronically high levels of 17 unemployment which is in need of an Enterprise Zone designation in order to attract new private 18 sector investment to such Application Area; and 19 20 Whereas, the City authorizes and supports job development, job creation and economic 21 development, and the City has determined that the designation as an Enterprise Zone would make 22 available a range of State of California tax and employment hiring tax credits that would create 23 incentives for businesses to invest in new or upgraded facilities and to establish new employment 24 opportunities within the Application Area for the benefit of the region; and 25 26 Whereas, the City by the adoption of this Resolution authorizes the staff of the City to be 27 available on an as-needed basis to maintain record keeping, monthly updates on the proposed 28 Enterprise Zone activities, and to discuss these activities with program auditors and ::tr30 fj.:lI jab 1 representatives and administrators from the State of California as part of the Application process 2 for the Application Area; and 3 4 Whereas, the City shall develop a self-evaluation process to measure progress in meeting 5 the goals and objectives to be established for the Enterprise Zone, and said process shall be 6 submitted to the State of California, Department of Housing and Community Development, for 7 review, approval and inclusion in the Memorandum of Understanding ("MOU") in the form as 8 attached hereto as Exhibit "B" as a subsequent amendment thereto prior to the final designation of 9 an Enterprise Zone by the State of California; and 10 11 Whereas, the City agrees to complete all actions to be stated within the Application that 12 apply to its territorial jurisdiction included with the Application Area should the proposed 13 Enterprise Zone be awarded a final designation in accordance with the provisions and limitations 14 provided in the MOU; and 15 16 Whereas, the Mayor's Economic Development Adviser has been designated as the Contact 17 Person for the Enterprise Zone at the address as set forth in the MOU. 18 19 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED 20 BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS 21 FOLLOWS: 22 23 SECTION I. The City hereby approves the intent to submit the Application to the State of 24 California, Department of Housing and Community Development, and supports the Application 25 for the designation of the Application Area as an Enterprise Zone. The City further authorizes the 26 inclusion of those portions of the City boundaries which are set forth on Exhibit "A" to be 27 28 4833-3960-5505.\ -2- 1 considered in the Application as a portion of the Application Area for purposes of the designation 2 of the Enterprise Zone. 3 4 SECTION 2. The City further approves the form of the MOU as attached hereto as Exhibit 5 "8" and authorizes the execution thereof by the Mayor to execute and deliver said MOU on behalf 6 of the City simultaneously with the execution and delivery of the MOU by all other parties thereto. 7 The City agrees to adhere to the purposes and intent of the MOU as provided therein subject in all 8 respects to the limitations and the right of withdrawal as specifically provided in the MOU. 9 10 The City also authorizes and directs that the staff of the City/Economic Development 11 Agency as determined by the Mayor shall be made available in accordance with the provisions of 12 the MOU to assist in the matters identified therein in the preparation of the Application with 13 respect to the Application Area. 14 15 SECTION 3. The City recognizes that until such time as the State of California has 16 officially designated the Application Area for inclusion within an Enterprise Zone, the rights, 17 duties and obligations of the parties to the MOU shall be as set forth therein. Upon the approval 18 of the proposed Enterprise Zone by the State of California, the parties under the MOU will then 19 undertake discussions as to those forms of Enterprise Zone incentives that will be matched by a 20 variety of local government incentives, including reduced permit and processing fees and 21 streamlined plan review processes and other incentives that may be determined at the sole 22 discretion of each party to the MOU. The parties to the MOU will also seek a variety of local 23 private, non-profit and public organizations with an interest in pledging specific forms of support 24 to implement the Enterprise Zone Marketing Strategy. Nothing contained herein or in the MOU 25 shall bind or commit any party to the MOU to any subsequent actions or financial commitments 26 except as may be agreed to at the sole discretion of each party to the MOU at a later date. 27 28 4833-3960-5505.1 -3- 1 SECTION 4. This Resolution shall take effect upon its adoption and execution in the 2 manner as required by the City Charter. 3 //1 4 /1/ 5 /1/ 6 /1/ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4833-3960-5505.1 -4- 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN MEMORANDUM OF UNDERSTANDING IN 2 CONNECTION WITH AN APPLICATION TO THE STATE OF CALIFORNIA FOR 3 THE DESIGNATION OF AN ENTERPRISE ZONE WITHIN A PORTION OF ITS TERRITORIAL JURISDICTION 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof, held on the 7 , 2006, by the following vote to wit: day of Aves Navs Abstain Absent 17 18 19 20 21 22 23 Rachel G. Clark, City Clerk day of ,2006. The foregoing resolution is hereby approved this Patrick J. Morris, Mayor City of San Bernardino Approved as to form: JAMES F. PENAMN 24 . ty Attorney 25 26 27 28 e./~.'\.,'\.......t'--- 4833-3960-5505.1 -5- 1 Exhibit "A" Application Area 2 (description and map) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48]]-3960-5505.1 -6- r ,~ ) "\c\( L r-':""'" " L ~ --:1 _n f-1- :.' y , ('II r " ::,\~~ ' I) .. ~' "-I~f- !,~ i"./ fj r) / pj _"c' ~_,~;r-+ ,,.. . . ~ < . . -e ~ . ~ .Ii . 1; ~ . . :. .!! < . . . z . w ~D UJ Z o N UJ en ~ - 8 0:: N n.' 0:: >! UJ~ t- c Z 0 UJ g o ~ UJ ! en .. o it n. " o 0:: n. ;~II Ii .Ii , " . ~l 1 Exhibit "B" Memorandum of Understanding 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4833-3960-5505.1 -7- MEMORANDUM OF UNDERSTANDING BY AND AMONG THE CITIES OF COLTON AND SAN BERNARDINO, THE COUNTY OF SAN BERNARDINO AND THE INLAND VALLEY DEVELOPMENT AGENCY THIS Memorandum of Understanding (this "MOU") is dated as of the 22n' day of August, 2006, and is by and among the City of Colton, a municipal corporation and a general law city under the laws of the State of California ("Colton"), the City of San Bernardino, a charter city duly existing pursuant to the Constitution of the State of California ("San Bernardino"), the County of San Bernardino, a political subdivision of the State of California (the "County"), and the Inland Valley Development Agency, a joint powers authority existing pursuant to the Government Code of the State of California (the "IVDA"). Colton, San Bernardino, the County and the IVDA are sometimes collectively referred to hereinafter as the "Parties." RECITALS WHEREAS, the purpose of the State Enterprise Zone program is to stimulate business and industrial growth in depressed areas of the state by relaxing regulatory controls that impede private investment and on March 8, 2006, the California State Department of Housing and Community Development (HCD) issued a Request for Proposals to fill twenty-three (23) soon to be vacant enterprise zone designations; and WHEREAS, the Parties have jointly and collectively pursued the preparation of a formal written application to the State of California, Department of Housing and Community Development ("HCD") for the designation of the properties described herein as the San Bernardino Valley Enterprise Zone ("Zone") on the attached Exhibit "A" within a State of California approved Enterprise Zone pursuant to Government Code Section 7070, et seq., and California Code of Regulations, Title 25, Subchapter 21, Article 1-13; and WHEREAS, the IVDA exists as a joint powers authority pursuant to Health & Safety Code Section 33492.40-33492.42, and Government Code Section 6500, et seq., and is comprised of Colton, San Bernardino, and the County as three of the four members of the IVDA, and WHEREAS, upon the conditional designation of the Zone by HCD, the IVDA Board of Directors shall act as the Enterprise Zone Oversight Committee (EZOC); and WHEREAS, the Parties seek to cooperate in the manner as hereinafter set forth for the mutual purposes of administration of the Zone, and the parties seek to share certain expenses in connection therewith through the contribution of cash and the providing of in-kind staff services in furtherance of the common goal of the Parties as set forth in this MOU; and NOW, THEREFORE, THE PARTIES MUTUALLY DECLARE THEIR INTENT AS OF THE DATE HERETO, AND SUBJECT TO THE PROVISIONS HEREOF, TO BE AS SET FORTH HEREIN: I. Definitions A. CAEZ - California Association of Enterprise Zones B. EDA - Economic Development Agency of the County of San Bernardino. C. EZOC - the Enterprise Zone Oversight Committee that will oversee the administration and operations of the Zone. The IVDA Board shall sit as the Enterprise Zone Oversight Committee. D. HCD - California State Department of Housing and Community Development. E. Technical Committee - a committee consisting of the Zone Manager and Zone Coordinators for the purposes of developing a Strategic Plan, Marketing Plan, annual budget, and addressing issues and concerns that may arise needing Zone Oversight Committee direction. F. Vouchering Agent - the entity designated to process hiring tax certificates or vouchers (vouchers). G. Vouchering Plan - the protocols in place to officially voucher qualified employees. H. Zone - San Bernardino Valley Enterprise Zone is that as shown on attached Exhibit "A." I. Zone Coordinator - the person appointed by each participating jurisdiction to oversee its respective portion of the Zone. J. Zone Manager - the person who administers and coordinates joint efforts of the Zone. II. Purpose The purpose of this MOU is to establish and assign the responsibilities of each jurisdiction in order to successfully and consistently administer and manage the Zone. III. Terms The effective date of this MOU shall commence upon the approval by the official action of the last Party authorized to execute this MOU by its appropriate governing body. No Party may terminate their participation in this MOU after the date that the application has been submitted to the State for designation as an enterprise zone. Any Party may terminate its participation in this MOU upon forty-five (45) days' prior written notice to the other Parties if such notice is delivered prior to the date that an application is submitted to the State for designation as an enterprise zone. Upon termination of this MOU as to any Page 2 of 10 Party, the Zone Manager will forward immediately to each jurisdiction that has so terminated its participation in this MOU all records, files and reports it has compiled and maintained pursuant to this MOU with respect to such terminating Party. This MOU shall automatically terminate and be of no further force or effect upon the denial by the State of the submitted enterprise zone application or should the Parties so choose to abandon the application process prior to completion or submittal to the State. Unless this MOU has been extended by action of the Parties if allowed by law or if it has been terminated as to all Parties in the manner as set forth in this Section III, this MOU shall automatically terminate as of the close of business on the business day which is fifteen (15) years from and after the date of the final approval by the State of the application for the enterprise zone designation. In the event of the early termination of this MOU or upon sunset of the Zone, if there are any funds left in the budget after all costs have been expensed, funds shall be returned to each Party based on the percentages that contributions were made to the budget. IV. Duties and Responsibilities of the Parties A. The Parties shall have the following responsibilities: a. Each Party shall adopt an annual budget. See Attachment 'B." b. The annual budget shall be funded by each Party based upon the percentage of industrial/commercialland acreage within its jurisdiction at the time the Zone is designated. See Attachment "C." c. The Parties will cooperatively market the Zone. d. San Bernardino County agrees to act as and provide a Zone Manager in conjunction with its responsibility to provide a Zone Coordinator. e. The County of San Bernardino agrees to act as the Vouchering Agent for the SBVEZ. f. The City of San Bernardino, the City of Colton, and IVDA agree to provide Zone Coordinators. B. The Zone Manager shall have the following responsibilities: a. Conduct meetings with EZOC and technical Committee, at a minimum, quarterly: February, May, August and October b. Coordinate maintenance of the Zone list of streets and addresses c. Coordinate maintenance of the Zone map d. Coordinate maintenance of Zone databases e. Implement the Zone's joint marketing plan f. Implement the Zone's vouchering plan g. Coordinate management of the Zone budget h. Coordinate communications between the EZOC and Zone Coordinators i. Prepare annual reports and participate in HCD Zone audits Page 3 of 10 C. The Zone Coordinators shall have the following responsibilities for its portion of the Zone that is within its jurisdiction: a. Outreach and education for a specific region in the Zone b. Update Zone databases for a specific region in the Zone c. Assist in site selection for a specific region in the Zone d. Assist public with general information e. Implement and oversee a marketing plan for a specific region in the Zone f. Implement and oversee a strategic plan for a specific region in the Zone g. Manage in-house staff resources through ongoing training, guidance and assistance h. Prepare reports, at least quarterly, on activities within the Zone for a specific region in the Zone i. Update Zone list of streets and addresses for a specific region in the Zone j. Update Zone map for a specific region in the Zone k. Submit all reporting and information/statistical updates to the Zone Manager D. Zone Manager and Coordinators shall have the following responsibilities: a. Represent the Zone with City, State, and local agencies and developers b. Act as Zone liaison with State and local government authorities c. Travel as necessary to carryout the responsibilities as herein described d. Develop Zone databases e. Develop a Zone marketing plan f. Develop a Zone strategic plan g. Participate in organizational memberships h. Plan the Zone budget i. Work with CAEZ tracking legislation and educating pUblic officials regarding the Enterprise Zone Program E. The Zone Oversight Committee shall have the following responsibilities: a. Approve the annual budget b. Approve expenditures over and above the approved budget c. Approve contracts and RFPs d. In the case the Zone Manager fails to perform his/her duties to the satisfaction of the other members of the Zone, by a majority vote of the EZOC, the Zone Manager can be replaced with a Zone Coordinator or other Zone member who will perform the duties of the Zone Manager on either an interim or permanent basis. Page 4 of 10 V. Indemnification The Parties each agree to indemnify, defend and hold harmless the other Parties to this MOU, their authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages and/or liability arising out of this Agreement to the extent such liability, loss, damage and/or liability is caused by or results from the negligent or intentional acts or omissions of that Party, its officers, employees, agents and/or volunteers, and for any costs or expenses incurred by any of the Parties on account of any claim therefore, except where such indemnification is prohibited by law. In the event any Party is found to be comparatively at fault for any claim, action, loss or damage, which results from its respective obligations under this Agreement, that Party indemnifies the other Parties to the extent of its comparative fault. VI. Amendments This Agreement may be amended at any time by written agreement signed by the Parties. Such amendments will be binding upon the Parties and will have an effective date specified in the amendments. VII. Counterparts This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument, binding on all Parties. VIII. Severabilitv Should any portion, term, condition or provision of this Agreement be decided by a court of competent jurisdiction to be illegal or in conflict with any law of the State of California, or be otherwise rendered unenforceable or ineffectual, the validity of the remaining portions, terms, conditions and provisions shall not be affected thereby. IX. GoverninQ Law This Agreement shall be construed in accordance with and governed by the laws of the State of California. This Agreement shall be deemed made and entered into in San Bernardino County, which shall also be deemed to be the sole and proper venue for any action or proceedings relating to this Agreement. X. Authoritv to Execute Each Party and its respective officers and agents warrant and represent that it has the full power and authority to execute, deliver, and perform the obligations under this Agreement and that each Party's performance has been duly authorized by its respective governing body. Page 5 of 10 XI. Notices All notices to be given pursuant to this Agreement shall be in writing and either: (i) sent by first class mail, in which case notices shall be deemed delivered five (5) business days after deposit, postage prepaid in the United States mail; (ii) sent by nationally recognized overnight courier; or (iii) by facsimile (fax), or similar means, if a copy of the notice is also sent by United States mail, in which case notice shall be deemed delivered on transmittal by facsimile (fax) or other similar means provided that a transmission report is generated reflecting the accurate transmission of the notices to addresses designated in writing by any party. If specifically authorized herein, some notices may be provided by email transmission to specifically designated individuals. Notices shall be delivered to the Parties as follows: Colton: Ms. Candace Cassel Economic Development Director Economic Development Department 650 North La Cadena Colton, California 92324 Telephone: (909) 370-5167 Facsimile: Email: ccassel@cLcolton.ca.us San Bernardino: Mr. Emil Marzullo Economic Development Advisor Office of the Mayor City Hall 300 North "D" Street, Sixth Floor San Bernardino, California 92401 Telephone: (909) 384-5133 Facsimile: (909) 384-5067 Email: Marzullo em@sbcitv.qov County: Ms. Kathleen Robles County of San Bernardino 215 North "D" Street, Suite 201 San Bernardino, California 92401 Telephone: (909) 387-9837 Facsimile: (909) 387-9830 Email: krobles@ed.sbcountv.qov IVDA: Mr. Alex Estrada Director of Redevelopment Inland Valley Development Agency 294 Leland Norton Way, Suite 1 San Bernardino, California 92408 Telephone: (909) 382-4100 Facsimile: (909) 382-4106 Email: alex@sbdairport.com Page 6 of 10 XII. Captions The captions of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. XIII. Waiver No covenant, term or condition of this Agreement shall be deemed to be waived by any party unless such waiver is in writing and executed by the party making the waiver. No waiver of a breach of any of the terms, covenants, or conditions of this Agreement shall be construed or held to be a waiver of any succeeding or proceeding breach of the same or any other term, covenant or condition. XIV. Parties Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties or their respective successors and assigns, any rights or remedies under or by reason of this Agreement. This Agreement shall be binding upon the Parties and their respective successors and assigns. XV. Force Maieure The Parties shall be excused from performance during any period of delay caused by governmental regulations, controls or directions, a state of emergency, acts of God, war hostilities, civil commotion, riots, epidemics or other natural casualties beyond the reasonable control of the Parties. Each party shall promptly notify the other party of any delay as soon as possible after the delay has been ascertained. XVI. Default Failure or delay by either party to perform any term or provIsion of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence and during any period of curing shall not be in default. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured. If the default is not commenced to be cured within fifteen (15) days after service of such notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party may be liable for any damages caused by such default, and the non-defaulting party may commence an action for damages with respect to such default or for specific performance of this Agreement. XVII. Modification in Compliance with Applicable Laws If any State or Federal law made or enacted after the date of this Agreement prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with such new law. Immediately after enactment of any such new law, the Parties shall meet and confer in good Page 7 of 10 faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. XVIII. Construction of Aareement The provisions of this Agreement and any exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions hereof in order to achieve the objectives and purpose of the Parties hereunder. Whenever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include all feminine or neutral genders, or vice versa. XIX. Mitiaation of Damaaes In all situations arising out of this Agreement, each party shall attempt to minimize the damages resulting from the conduct of the other party. XX. Effectuation of Purposes of Aareement Each party shall take all necessary measures to effectuate the provisions of this Agreement. Each party shall do nothing which shall have the effect of injuring the right of the other party to receive the benefits of this Agreement; each shall refrain from doing anything which would render its performance under this Agreement impossible; and each shall do everything which this Agreement contemplates that such shall do in order to accomplish the objectives and purposes of this Agreement. XXI. No Personal Liabilitv No member, official or employee of the Parties shall be personally liable to the other Party, or any successor in interest, in the event of any default or breach of this Agreement or for any amount which may become due hereunder, or on any obligations under the terms of this Agreement. XXII. No Personal Interest No member, official or employee of the Parties shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. XXIII. Insurance Certificates Parties agree to provide certificates evidencing its self-insurance coverage to the Zone Manager. Page 8 of 10 XXIV. Intearation This Agreement constitutes the entire understanding and agreement of the Parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. COUNTY OF SAN BERNARDINO CITY OF COLTON By: By: Deirdre H. Bennett, Mayor Bill POSTMUS, Chairman Board of Supervisors Dated: Dated: SIGNED AND CERTIFIED THAT A COpy OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD APPROVED AS TO lEGAL FORM BB&K City Attorney DENA M. SMITH By: Clerk of the Board of Supervisors of the County of San Bernardino Dated: By: CITY OF SAN BERNARDINO Dated: By: Patrick J. Morris, Mayor APPROVED AS TO lEGAL FORM DENNIS WAGNER Interim County Counsel Date: APPROVED AS TO FORM: By: Deputy County Counsel JAMES F. PENMAN City Attorney Dated: Page 9 of 10 Dated: ATTEST: IVDA Inland Valley Development Agency, a joint powers authority By: Interim Executive Director Kelly Berry, Assistant Secretary Approved As To Form: By: IVDA Counsel Page 10 of 10