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HomeMy WebLinkAbout04.A- City Attorney CITY OF SAN BERNARDINO AS SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO REQUEST FOR ACTION From: Gary D. Saenz, City Attorney M/CC Meeting Date: 6/13/2016 Prepared by: Donn Dimichele, Deputy City Attorney Dept: City Attorney Ward(s): All Subject: Motion to authorize City Manager to execute use agreement and/or lease permitting San Bernardino County Fire Protection District to use City Fire Station No. 221 pending transfer of the station from the Successor Agency to the City and thence to the Fire Protection District. Current Business Registration Certificate: Not Applicable Financial Impact: Not applicable. Motion: Authorize City Manager to execute agreement. Synopsis of Previous Council Action: August 24, 2015 -- Mayor and Common Council adopted Resolution No. 2015-195, authorizing the filing of an application to the Local Agency Formation Commission (LAFCO) for annexation of the City to the San Bernardino County Fire Protection District (County Fire). Action Requested: As a condition of the annexation referred to above, the City will transfer ten City fire stations to the County Fire Valley Service Zone. One of the stations to be transferred is Station 221, located at 200 E. 3rd Street. 1 lIq It was recently determined that the records of the County Assessor show the RDA, rather than the City, as the owner of Station 221. The County records further show that the RDA acquired title to Station 221 from the City in 2010. The reason for the 2010 transfer of title has not been determined but is being investigated. Hence, to comply with the annexation conditions, either the City must acquire title to Station 221 from the RDA (now Successor Agency) and convey the property to County Fire, or the Successor Agency must convey the property to County Fire directly. Either scenario may require approval by the state Department of Finance and/or the Successor Agency Oversight Board, which may require more time than is available under the annexation schedule. Accordingly, as an interim measure, the City and County Fire have agreed to execute a use agreement or short-term lease to permit County Fire to obtain the use of Station 221 upon the completion of the annexation process, notwithstanding that title to the property may not be able to be conveyed to County Fire until later. County Counsel and the City Attorney's office have agreed to the form of such an agreement, attached. County Counsel has advised that they will be bringing an item to the Board of Supervisors on June 14, 2016 to obtain authorization for the County Fire Chief and Director of Real Estate Services to execute any necessary documents to effectuate the conditions of the LAFCO action, which will authorize execution of the use agreement. It is requested that the Council, acting as the Successor Agency to the RDA, authorize the City Manager to execute the agreement on behalf of the City. 2 POSSESSION AND OCCUPANCY AGREEMENT THIS POSSESSION AND OCCUPANCY AGREEMENT (this "Agreement") is made and entered into as of the day of , 2016, by and between the Successor Agency to the Redevelopment Agency of the City of San Bernardino, a public body organized and existing under the laws and Constitution of the State of California ("Agency") and the San Bernardino County Fire Protection District, a fire protection district organized and existing under the laws and Constitution of the State of California ("District"). RECITALS WHEREAS, pursuant to Local Agency Formation Commission Resolution No. 3211 (the "LAFCO Resolution"), District is assuming the obligation to provide fire protection services within the geographic area previously served by the City of San Bernardino Fire Department; and WHEREAS, pursuant to the LAFCO Resolution, the City is obligated to convey to the District, among other property, all real property relating to the provision of fire protection services by the City, including that certain property located in the County of San Bernardino, State of California, commonly known as 200 East Third Street, San Bernardino, California and identified as Assessor's Parcel Number 0135-181-63 (the "Property"); and WHEREAS, the records of the County Assessor of the County of San Bernardino indicate that record title to the Property is vested in the former Redevelopment Agency of the City of San Bernardino (the "City Redevelopment Agency"); and WHEREAS, the City in its capacity as the Successor Agency to the Redevelopment Agency of the City of San Bernardino is the successor in interest to the City Redevelopment Agency; and WHEREAS, the City, the Agency and the District are working cooperatively to resolve the issues relating to the vesting of title and transfer of the Property; and WHEREAS, the City, the Agency and the District each find and determine that entering into this Agreement is in the public interest during the interim period until the title issues with the Property are resolved and legal title to the Property can be transferred to the District. NOW, THEREFORE, in consideration of the recitals set forth above and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto do agree as follows: 1 i I. PREMISES POSSESSION AND OCCUPANCY. Agency grants to District and District accepts from Agency the exclusive right to possess, occupy and use the real property and all appurtenances and equipment located at 200 East Third Street, San Bernardino, California, as more particularly described on Exhibit A, attached hereto and incorporated herein by this reference (the "Premises"). 2. TERM. This Agreement's initial term (the "Initial Term") shall commence on July 1, 2016 (the "Commencement Date") and end on the earlier of (i) the recordation of a quitclaim deed transferring the Property from the City or the Agency to the District or(ii) twelve months from the Commencement Date. Agency gives District the option to extend the term of this Agreement on the same provisions and conditions for two (2) one-year periods ("extended terms") following expiration of the Initial Term, by District giving notice of its intention to exercise the option to Agency prior to the expiration of the preceding term or during any holding over pursuant to Paragraph 4, HOLDING OVER. 3. CONSIDERATION. Agency and District agree that, in consideration of District's continuing efforts to assist Agency to comply with LAFCO Resolution No. 3211, District shall possess and occupy the Premises at no cost. 4. HOLDING OVER. In the event the District shall hold over and continue to occupy the Premises following expiration of the Initial Term or any extended term with the consent of the Agency, expressed or implied, the tenancy shall be deemed to be a tenancy from month-to-month upon the same terms and conditions as existed and prevailed at the time of the expiration of the term of this Agreement. 5. UTILITIES. District agrees to pay for all utilities and services at its sole cost and expense. 6. MAINTENANCE. District hereby covenants and agrees to maintain the Premises in substantially the same condition as on the Commencement Date at its sole cost and expense. 7. ASSIGNMENT: SUBLETTING. Agency shall not assign or sublet all or any part of the Premises, or assign or transfer the right to occupy the Premises. Any assignment, subletting or transfer of the Premises by voluntary act of the Agency without District's prior written consent shall be invalid and without force or effect. 8. IDEMNIFICATION. A. The Agency agrees to indemnify, defend (with counsel reasonably approved by District) and hold harmless the District and its officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability resulting from the Agency's negligent acts or omissions which arise from the Agency's performance of its obligations under this Agreement. The Agency's indemnification 2 obligation shall survive the District's occupancy of the Premises under this Agreement. The insurance provisions in Paragraph 9, INSURANCE shall not be interpreted in a manner that limits the indemnification obligation. B. District agrees to indemnify and hold harmless the Agency, its officers, agents, volunteers from any and all claims, actions or losses, damages, and/or liability resulting from the District's negligent acts or omissions which arise from the District's performance of its obligations under this Agreement. C. In the event the District and/or the Agency is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement, the District and/or Agency shall indemnify the other to the extent of its comparative fault. 9. INSURANCE. District and Agency are each a self-insured public entity for purposes of general liability and workers' compensation. District represents and warrants that it maintains sufficient liability coverage to meet its obligations under this Agreement. Agency represents and warrants that it maintains sufficient liability coverage to meet its obligations under this Agreement. 10. DAMAGE OR DESTRUCTION OF PREMISES. During the Initial Term or any extended term of this Agreement, if any casualty not caused by any act or omission of District renders a portion of the Premises unusable for the purpose intended, then Agency shall, at Agency's expense, restore the Premises and repair any damages caused by such casualty as soon as reasonably possible and this Agreement shall continue in full force and effect. If Agency does not commence the restoration of the Premises in a substantial and meaningful way within thirty (30) days following the Agency's receipt of written notice of the casualty, or should Agency fail to diligently pursue completion of the restoration of the Premises, or if the time required to restore the Premises is estimated to exceed ninety (90) days, District may, at its option, terminate this Agreement immediately upon written notice to the Agency. If District elects to terminate this Agreement pursuant to this provision, District shall be discharged of all future obligations under this Agreement. Alternatively, if Agency fails to commence the restoration of the Premises or fails to diligently pursue the completion of the restoration as aforesaid, District may, at its option and in its sole discretion, after notice to Agency, perform Agency's obligations and restore the Premises. If District elects to restore the Premises, District shall have the right to be reimbursed for all sums it actually and reasonably expends (including charges for District employees and equipment) in the performance of Agency's obligations. The sum paid by District shall be due from Agency to District within five (5) days of notice of such sum, and if paid at a later date shall bear interest at the maximum rate the District is permitted by law to charge from the date the sum was paid by District until District is reimbursed by Agency. The remedies set forth in this paragraph are in addition to and do not in any manner limit other remedies set forth in particular paragraphs of this Agreement. For the purposes of this paragraph, the phrase "commence . . . in a substantial and meaningful way" shall mean either the unconditional 3 authorization of the preparation of the required plans, the issuance of any required Building Permits or the beginning of the actual work on the Premises. In the event there is a destruction of all or a portion of the Premises and this Agreement is not terminated because of such destruction, Agency agrees to use any and all insurance proceeds received for said destruction in the restoration of the Premises. 11. NOTICES. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated two (2) District working days from the time of mailing if mailed as provided in this paragraph. AGENCY's address: City of San Bernardino as Successor Agency 300 North D Street, Sixth Floor San Bernardino CA 92418 Attention: City Manager DISTRICT'S address: San Bernardino County Fire Protection District c/o Real Estate Services Department 385 North Arrowhead Avenue, Third Floor San Bernardino, CA 92415-0180 12. WAIVER. The waiver of any breach shall not be construed as a continuing waiver of the same or any subsequent breach. I13. ATTORNEYS' FEES AND COSTS. If any legal action is instituted to enforce or declare any party's rights hereunder, each party, including the prevailing party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against the District or the Agency, as the case may be, including such costs and attorneys' fees payable under Paragraph 8, INDEMNIFICATION. 4 14. AMENDMENT. No waiver, modification or amendment of any term, condition or provision of this Addendum shall be valid or shall have any force or effect unless made in writing and signed by all of the parties hereto. 15. NO RELIANCE. In entering into thisAgreement, each of the parties acknowledges, represents and warrants that it has not relied upon any promise, statement or representation, express or implied, of any other party or such other party's agents, employees, or attorneys, not contained in thisAgreement. 5 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above written. SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO: By: Mark Scott, Executive Director Date SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT By: Mark Hartwig, Fire Chief Date 6 EXHIBIT A PREMISES DESCRIPTION APN: 0135-181-63-0000 The land referred to herein is situated in the State of California, County of San Bernardino and described as follows: Parcel 6 of Parcel Map No. 7140 as per plat thereof recorded in Book 69 of Parcel Maps, pages 1 and 2, record of the County Recorder of San Bernardino County, State of California. 7