Loading...
HomeMy WebLinkAboutReso RDA 7-2001 RESOLUTION NO. 0%2001 REDEVELOPMENT AGENCY, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING AN EXCLUSIVE NEGOTIATION RIGHTS AGREEMENT (ENRA) BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND BAY AREA ECONOMICS (BAE) TO DEVELOP THE CITY PARKING LOT AT 39.9 MILLER AVENUE WHEREAS, staff recommends that the Redevelopment Agency adopt a resolution approving an Exclusive Negotiation Rights Agreement between the City of South San Francisco and Bay Area Economics to develop the city parking lot at 329 Miller Avenue; and, NOW THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of South San Francisco that the Redevelopment Agency hereby approves an Exclusive Negotiation Rights Agreement (ENRA) between the City of South San Francisco and Bay Area Economics (BAE) to develop the city parking lot at 329 Miller Avenue. BE IT FURTHER RESOLVED, that the Redevelopment Agency hereby authorizes the Executive Director to execute the Agreement on behalf of the City of South San Francisco. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the Redevelopment Agency of the City of South San Francisco, held on the 26th day of September, 2001, by the following vote: AYES: Boardmembers Pedro Gonzalez, Karyl Matsumoto and John R. Penna, Vice-Chair Eugene R. Mullin and Chair Joseph A. Fernekes NOES: None. ABSTAIN: None. ABSENT: None. EXCLUSIVE NEGOTIATING RIGHTS AGREEMENT THIS AGREEMENT is made as of the ~ day of ,2001 between the CITY OF SOUTH SAN FRANCISCO, CALIFORNIA, a municipal corporation ("CITY"), the SOUTH SAN FRANCISCO REDEVELOPMENT AGENCY, a public corporation ("AGENCY") and BAY AREA ECONOMICS ("PARTICIPANT"). RECITALS WHEREAS, the CITY owns the real property ("City's Property") (APN 012-312- 040, APN 012-312-050, and APN 012-312-060) commonly known as 329 Miller Avenue, South San Francisco, California, more fully described in the attached Exhibit A incorporated herein by reference; and, WHEREAS, all of the property described above is located in the Downtown/Central Redevelopment Project Area established on JulY 12, 1989 by Ordinance No. 1056-89 of the South San Francisco City Council; ~tnd, WHEREAS, the PARTICIPANT prepared a Market Analysis for Residential Development in Downtown South San Francisco, and WHEREAS, CITY favorably supported the recommendations presented in the Market Analysis for Residential Development in the Downtown, and WHEREAS, PARTICIPANT is interesting in working with the CITY and AGENCY to provide market rate and affordable housing in the downtown, and WHEREAS, the PARTICIPANT desires to include the City's Property in the development of new housing supporting uses for the downtown, including exploring the feasibility of including the City' s parcel in a broader development on Miller Avenue between Maple and Linden Avenues, and WHEREAS, the Parties desire to explore the feasibility of such developments on the CITY parcels, and WHEREAS, the Parties desire to pursue negotiation of one or more agreements that together will convey one, two, or three sites to PARTICIPANT as part of an overall development project, NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows ("Agreement"): 1. Term: The initial term of this Agreement ("Initial Term") shall be twelve (12) months from the date first above written, unless earlier terminated as provided herein. The Initial Term of this Agreement may be extended by written agreement for an additional 180 days ("Extended Term"), provided that each of the Parties is making reasonable progress in fulfilling its obligations hereunder. In applying this provision to the PARTICIPANT, reasonable progress shall require the timely submission of all information requested by the CITY. The CITY hereby delegates authority to its City Manager to execute the extension provided hereinabove. The Extended Term of this Agreement may be further extended only by written amendment upon the mutual agreement of the Parties. The Party desiring to further extend the Extended Term of this Agreement shall provide written notice to each of the other Parties at least thirty (30) days in advance of the expiration of the Extended Term of this Agreement. 2. Feasibility Studies: PARTICIPANT shall use their best efforts to prepare or cause to be prepared the reports/studies and documents as set forth below. A. Parking Study: The PARTICIPANT shall use its best efforts to prepare or cause to prepare parking study to determine the parking uses in the downtown and the need for additional parking. The study should provide recommendations for meeting present and future parking needs in the downtown. The parking study shall be completed and presented to the City within four (4) months of execution of this Agreement The City/Agency and the Participant shall share the cost of the Parking Study equally. B. Participant's Reports/Studies: The PARTICIPANT shall use its best efforts to prepare or cause to be prepared any and all studies, surveys, plans, specifications, and reports deemed by PARTICIPANT to be necessary or desirable to determine the feasibility of its proposed redevelopment of the Sites ("Participant's Reports/Studies"). The Participant shall commence the preparation of the Participant' s Reports/Studies within four (4) months of the execution of this Agreement. PARTICIPANT shall be solely responsible for all costs associated with the preparation of Participant's Reports/Studies. The CITY is entering into this Agreement without monetary compensation. In lieu of such compensation, if this Agreement shall expire or be earlier terminated without the Parties having successfully negotiated the agreements contemplated herein, PARTICIPANT shall make any and all of Participant' s Studies available to the CITY/AGENCY for copying at their own expense. 3. Feasibility Assessment: The Parties shall cooperate in good faith to assess the feasibility of the transaction contemplated in this Agreement ("Feasibility Assessment") and each Party shall use its best efforts to obtain and provide to the other Party any information relating to that Party's Property or the Project that is reasonably required to perform such assessment. The Feasibility Assessment may include, but is not necessarily limited to, an analysis of the relative values of the properties, the feasibility of the Project's implementation, and the extent to which the transactions contemplated in this Agreement will contribute to each Party's goals and objectives. 09/21/01 Page 2 of 7 4. Access to Property During the term of this Agreement the CITY grants to the PARTICIPANT and the PARTICIPANT'S agents the right to enter upon the CITY Property, for the exclusive purpose of conducting studies and investigations that will assist the PARTICIPANT in preparing the Participants Reports/Studies and the Feasibility Study. Such entry shall be made only during regular business hours and upon not less than two business days' advance telephonic or written facsimile notice to the City' s Economic Development Director. 5. Good Faith Efforts to Negotiate: If the Feasibility Assessment supports, to the satisfaction of all Parties, the feasibility of the Project and the transactions contemplated herein, the Parties shall diligently and in good faith pursue negotiation of mutually satisfactory terms of the agreement(s) required to effectuate such transactions. Furthermore, each Party shall use diligent and good faith efforts to obtain any consent, authorization or approval, or exemption, required or in connection with the transactions contemplated herein. This Agreement does not require either Party to accept the terms of an agreement negotiated hereunder if the Party, acting reasonably and in good faith, deems that such terms are not in its best interest. 6. Exclusive Right to Negotiate: Each Party agrees that it will not, during the Term of this Agreement, directly or indirectly, through any officer, employee, agent, or otherwise, solicit, initiate or encourage the submissions of bids, offers or proposals by any person with respect to acquisition of any interest in City's Property and neither shall any Party engage any broker, financial adviser or consultant with an incentive to initiate or encourage proposals or offers from other persons. Furthermore, neither Party to this Agreement shall, directly or indirectly, through any officer, employee, agent or otherwise, engage in negotiations concerning any such transaction with, or provide information to, any person other than the Parties and their representatives with a view to engaging, or preparing to engage, that person with respect to any matters in this Agreement. 7. Relationship of Parties: The Parties agree that nothing in this Agreement shall be deemed or interpreted to create between them the relationship of lessor and lessee, of buyer and seller, or of partners or joint ventures. 8. Expenses: Unless this Agreement expressly provides otherwise, all costs and expenses (including, without limitation, all legal fees and expenses) incurred in connection with this Agreement and the activities contemplated hereby shall be paid by the Party incurring the same. 9. No Further Encumbrances: No Party shall, during the Term of this Agreement and without the other Parties' consent, take or cause or suffer to be taken, any action that would place an additional burden or encumbrance on that Party's Property. 10. Release of Information: During the term of this Agreement, each Party shall obtain the written consent of each of the other Parties prior to issuing, or permitting any of its officers, employees or agents to issue, any press release or other information to the media, with respect to this Agreement or the activities contemplated hereby; provided, 09/21/01 Page 3 of 7 however, that no Party shall be prohibited from supplying any information to any of its representatives, agents, attorneys, advisors, financing sources and others to the extent necessary to accomplish the activities contemplated hereby so long as such representatives, agents, attorneys, advisors, financing sources and others are made aware of the terms of this Section 9. Nothing contained in this Agreement shall prevent any Party at any time from furnishing any required information to any governmental entity or authority pursuant to a legal requirement or from complying with its legal or contractual obligations. 11. Execution of Negotiated Agreement(s): If the Parties successfully negotiate the agreement(s) contemplated herein, the CITY/AGENCY shall promptly seek review of such agreement(s) by their respective governing bodies, conduct the required public hearing(s), and recommend approval of such agreement(s); Provided, that the CITY and AGENCY shall not be obligated in any way to, and shall not, seek approval by its respective governing body unless and until all requirements of the California Environmental Quality Act have been fulfilled. Provided further, that the CITY shall not have any binding obligation whatsoever to convey any interest in its respective Property or to grant any approvals or authorizations for the Project until the agreement(s) negotiated pursuant to this Agreement have been approved by its respective governing body and have been fully executed. 12. Termination: This Agreement may be terminated at any time by mutual consent of the Parties. Any Party shall have the right to terminate this Agreement upon its good faith judgment that one of the other Parties is not proceeding diligently and in good faith in carrying out the activities contemplated in this Agreement. The Party desiring to terminate shall provide at least ten (10) days advance written notice to each of the other Parties. Further, PARTICIPANT shall have the right to terminate this Agreement, effective within 10 days of its written notice to terminate, delivered to the CITY, if the results of its investigation of the Site are unsatisfactory with respect to PARTICIPANT'S desired redevelopment activities or if PARTICIPANT is unable to obtain other necessary approvals, rights or interests. 13. Effect of Termination or Expiration: Upon termination as provided herein or upon final expiration of this Agreement without the Parties having successfully negotiated the agreement(s) contemplated herein, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any of the Parties or their respective officers, employees, agents or other representatives, except as otherwise expressly provided herein. Provided, Participant shall be obligated to provide the City with copies of Participant's Reports/Studies and the Parking Study as required pursuant to Section 2 and further provided that each Party shall be responsible for any expenses and costs incurred pursuant to this Agreement as provided in Section 7. Agency and the City recognize and hereby agree that in the event of termination, if Participant provides the City and the Agency with copies of any of Participant's Reports/Studies and the Parking Study, Participant shall have no responsibility or liability for the information provided in the Participant Reports/Studies and the Parking Study to the City, the Agency or any third parties who received the Reports/Studies from the City or the Agency.. Page 4 of 7 14. Notices: All notices and other communications under or in connection with this Agreement shall be in writing and shall be deemed given (a) if delivered personally (including by overnight express or messenger), upon delivery, (b) if delivered by registered or certified mail (return receipt requested), upon the earlier of actual delivery or three days after being mailed, or (c) if given by facsimile, upon confirmation of transmission, in each case to the Parties at the following addresses: A. If to CITY, addressed to: The City of South San Francisco Attention: Michael A. Wilson City Manager 400 Grand Avenue South San Francisco, CA 94080 Facsimile #: 650-829-6609 C. If to PARTICIPANT, addressed to: Janet Smith-Heimer Bay Area Economics 2560 9th Street, Suite 211 Berkeley, CA 94710 Facsimile #: 510-549-7028 16. No Brokers: Each Party represents that it has dealt with no brokers with respect to the transactions contemplated by this Agreement, and no broker or person is entitled to any commission, finder' s fee or other similar compensation by virtue of the transactions. Each Party hereby defends and indemnifies the other against any and all claims, losses, liability and damages, including reasonable attorney fees, in connection with any commission, finder's fee or other similar compensation sought, based upon some obligation of the indemnifying Party with respect to the transactions. 17. Severability: If any term or provision of this Agreement or the application thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid or unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable such term or provision in any other jurisdiction, the remaining terms and provisions of this Agreement or the application of such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable. 18. Entire Agreement: This Agreement contains the entire understanding of the Parties in respect of its subject matter and supersedes all prior and contemporaneous agreements and understandings, oral and written, between the Parties with respect to such subject matter. 09/21/01 Page 5 of 7 I ' r I I I 19. Successors and Assigns: This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; PROVIDED, that no Party shall directly or indirectly transfer or assign any of such Party's respective rights hereunder in whole or in part without the prior written consent of each of the other Parties, and any such transfer or assignment without said consent shall be void, ab initio. Subject to the immediately preceding sentence, this Agreement is not intended to benefit, and shall not run to the benefit of or be enforceable by, any other person or entity other than the Parties and their permitted successors and assigns. 20. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, each of the Parties has executed this Agreement, or has caused this Agreement to be executed on its behalf by a representative duly authorized, all as of the date first above set forth. THE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA By: Michael Wilson, City Manager/Executive Director Approved as to form: City Attorney Attest: City Clerk PARTICIPANT: By: By: 09/21/01 Page 6 of 7 EXHIBIT A LEGAL DESCRIPTION OF CITY'S PROPERTY APN 012-312-040, APN 012-312-050, and APN 012-312-060 Page 7 of 7