HomeMy WebLinkAboutChildren and Families Commission of Fresno County - Exclusive Negotiation Agreement 1.06 +/- acres fp ;amd at Tulare Ave & between O St & N St APN 466-094-09T (T-Lot)EXCLUSIVE NEGOTIATION AGREEMEN I'
¢ 1.06+1- Acres of Land at Tulare Avenue and between
"0" Street and "N" Street, City of Fresaa, California
AM 46&094-09T ('I -Lot)
o THIS EXCLUSIVE NEGOTIATION AGREEMENT (this "Agreement") is madeand
entered into on - Z3 .20101 ('Effective Date"), by and between the. CITY OF
FRESNO, a mums Ful corpmmtioa ('CITY"), and CHILDREN & FAMIIITS COMMISSION
OF FRESNO COUNTY. an Independent governmental agency formed pursuant o California
Health & Safety Code section 130100erseq. ("FIRST 5").
R F.0 ITA LS
WHEREAS, CITY owns approximately 48,000 squ me feet of real property (Assessor
Parcel Number 466-094-09T), as more particularly described in Exhibit "A", attached hereto and
incorporated by reference herein, and which is hereinafter for convenience referred to as the
"Propene"; and
WHEREAS. FIRST 5 has expressed its interest and willingness to purchase the property
for purposes of development and operation of. among other things, im administrative office man
daycare facility on the Property (Project" y, and
WHEREAS, the CITY desires to enter this Agreement in furtherance of promoting
development in Downtown Fresno; and
WHEREAS, the Finite have had preliminary discussions regarding FIRST 5's purchase
of the Property, which are described in Section 3(A) herein, and the games mutually desire to
negotiate exclusively and enter into a purchase agreement. in accordance with the terms and
conditions of this Exclusive Negotiation Agreement; and
WHIiREAS, until such time a purchase and sale agreement is executed during the term of
this Agreement, ths Agreement expires, or is sooner terminated. CITY shall neither negotiate
nor sell the Property to a third -party: and
WHEREAS, the parties agree that any final agreement reached for the purchase of the
Property, shall be subject to lined approval of CITY Council and the FIRST 5 Commission.
NOW. THEREFORE. in consideration of the tbecgting, which are hereby incorporated
by this reference and of the covenants. conditions, and promises hereinafter contained to W kept
and performed by the respective patties, the genies mutually agree as follows:
I. Term alAgreement.
CITY and FIRST 5 shall negotiate exclusively for 12 months 065 calendar days) from
the Effective Date (the "Negotiation Period"), unless negotiations are sooner terminated as
provided herein. The parties shall devote such personnel. consultants and resources as may be
reasmubly neeesmry to complete negotiations within that time limit.
2. Assignment prohibited.
This Agreement is persorel to FIRST 5 and there shall he no assignment by FIRST 5 of
its rights or obligations under this Agreement without the prior written approval of the City
Manager or designee thereof. Any attempted assignment by FIRST 5, its successors or assigns,
shall be null and void unless approved in writing by the City Manager or designee thereof.
3. Negotiations.
(A) The parties shall negotiate diligently, exclusively and in good faith to complete
the purchase agreement prior to the expiration of the Negotiation Period. During the
Negotiation Period, the parties shall meet as frequently as may be necessary and diligently
engage in such activities as may be necessary, to accomplish this end. The responsibility for
payment of development and entitlement related costs including, but not limited to, planning
fees, impact fees, and preparation of my studies or documents requited for compliance with the
California Environmental Quality Act ('CFQA'T (here nafter collectively. "Entitlement Costs")
is addressed in Section 5 herein. Notwithstanding the forgoing the parties acknowledge that
their respective staffs have already conducted prellminary negutiauons regarding FIRST 5's
pmchaseorthe Property. During these negotiations, City its B and First 5 staff have tentatively
negotiated the following terms to include in a future purchase and Sale Agreement (it the CITY
and FIRST 5 shall each be responsible for fifty Forever (50°.) of any real estate commissions or
brokerage fees arising from, relating to, or in any way connected with, the transactions
contemplamd by this Agreement; (it) C'1'IY shall be responsible for installing a sewer line.
sufficient to serve the Pr ject and consistent with Cl F standards, to the Property houndary line;
(iii) the purchase price for the Property shall be $12.29 per square foot or approximately
$590,000i(M (the parties conductwl their own independent appraisals prepared by MAI certified
appraisers to ascertain the purchase price stated herein); (iv) the transfer of title to the Property
slag occur via escrow with an escrow company acceptable to birth patties; and (v) such escrow
shall noLclose until Project entitlements are fully vested and non -appealable. However, final
agreement on these terms cannot occur unless and until the City Council and FIRST 5
Commission have approved these terms as part of their apparent of env Purchase and Sale
Agreement which is contemplated by this Agreement. F.ach term identified herein is subject to
further negotiation by CITY and FIRST 5, Nothing in this Agreement shall par ldmk the City
Council under FIRST 5 Commission From exercising their independent diveretin r to enter into a
Purchase and Sale Agreement that may include some or none. of these terns,
(B) The parties agree that if the negotiations result in a purchase and sale agrcemen4
such agreement for purchase of the Property shall he subject to final approval by the CITY
Council and FIRST 5 Commission. Approval by the CITY Council and the FIRST 5
Commission shall occur only inter compliance with all applicable laws and ordinances including,
without limitation. CEQA.
(C) Before entering upon the Property, whether for site assessment or other due
diligence, FIRST 5 shall fire obtain a right efentry from the CITY, which shall not be
unreasonably denied.
(D) FIRST 5 and CITY shall Imply complete each activity or task set IoM in the
Project Performance Schedule attached hereto as Exhibit "B" and incorporated herein.
(E) This Agreement shall not prevent the CITY from providing any person or entity
requesting information regarding the Property with my information that is a public record.
CITY shall, to the extent pemtitlN by law, not distribute or disclose information regarding the
Property or FIRST 5 which is of a confidential or proprietary nature.
4. Termination.
(A) This Agreement shall terminate in accorlsoce with Spetion l herein, urdess prior
to such date:
(i) The parties have extended the term of Ws Agreement by women
amendment; or
(ii) Any pang has terminated this Agreement for cause.
(B) For purposes or this. provision, any gran may terndnate this Agreement rot cause
in the event the other party is in default of this Agreement for failure to negotiate as good F'N.
Any substantive breach of Nis Agreement shaft oonstimm a failure to negotiate in good faith.
5. Allocation of Entitlement Crisis,
(A) The paries shall each be responsible for fifty percent (5064,) ol'the Entitlement
Costs except, however, the Cl I Y'S total contribution to such Entitlement Costs shall not exceed
twenty-five Nomand dollars ($25,000.00). CITY shall not engage the services ofa consultant
without the prior written approval of FIRST 5, which shall not be unrearonably withheld. FIRST
5 some"ledges Nat CITY must comply with CITY requirements for selection ofconsubants to
claim such consulting services for the Project.
(B) The procedums for the payment of Entitlement Cost shall be determined through
negotiation as described in the Project Permrmmce Schedule, as provided in Exhibit "B",
simplest hereto and incorporated by reference herein.
6. Agreement Limitations
By its execution of this Agreement. the CITY is not committing to or-agrecing to
undertake: (a) my lend acquisition or any disposition of land to FIRST 5; or (b) any other acts or
activities requiring the subsequent independent exercise of discretion by CITY or any agency or
department thereof. This Agreement does not constitute a disposition of property or exercise of
control over property by the CITY. Execution of this Agreement by Ci l Y is merely an
agreement N enter into the exclusive Negotiation Period according to the terns hereof, reserving
foal discretion and approval by the CITY and FIRST 5 as to any purchase agreement and all
proceedings and decisions in comection therewith.
9. CITY's Reservation of Authority
The parties agree that (a) the CITY reserves all of its police ptwen, ordain statutory or
other legal powers or responsibilities; and (b) this Agreement shall not be construed to limit the
authority or obligation of the CITY to hold necessary public hearings, to limit the dismilion of
the CITY or any of its officers or officials with regard to rules, regulations, ordinances, laws, and
entitlement of use which require the exercise of discretion by me CITY or env of its officers or
officials. This Agreement shall not be construed to limit the obligation of the CITY to comply
with CEQA or any other federal or state law.
B. Miscellaneous provisions.
(A) Notices. Any notice required or Intended to be given to either party under the
terms of this Agreement shall be in writing and shall he deemed to be duty given if delivered
Normally. transndtted by facsimile followed by telephone confirmation of receipt, trmtsmined
by electronic mail followed by telephone confirmation of receipt. a sent by United States
registered or certified mail, with postage prepaid, rehire receipt requested. addressed to the party
to which notice is to he given at the party's address set forth we the signature page of this
Agreement or at such other address as the parties may from time to time designate by written
notice Nmices served by United States mail in the mower above described shall be deemed
sufficiently served or given at the time ofthe mailing thereof.
(6) Compliance With Lnw. The parties shall at all tunes comply with all applicable
laws of the United States, the State of California and CITY. and with all applicable regulations
promulgated by federal, state, regional, or local administrative and regulatory agencies, now in
fore and as they may be enacted, issued oramended during the term ofthis Agreement.
(C) Waver. The waiver by either party of a breach by the other of any provision of
Ws Agreement shall not constitute a continuing waiver or a waiver of my subsequent breach of
either the same or a different provision ofthis Agreement. No provisions of this Agreement may
be waived unless in writing and signed by all parties to this Agreement. Waiver of any one
provision herein shall not be deemed robe a waiver of any other prevision herein.
(D) Governing Law and Venue. This Agreement shall he governed by, and committed
and enforced in accordance with, the laws of me Slate of California excluding, however, any
conflict of laws rue which would apply the law of anomer jurisdiction. Venue for purposes of
the filing of any action regarding the enforcement or interpretation of this Agreement and any
rights and duties hereunder shall be Frame County, Califomin.
(E) Flead�in . The section headings in this Agreement are for convenience and
reference only and shall wt he remained or held in any way to explain, modify or add to the
interpretation or mewing ofthe provisions of this Agreement.
(n Sevemb'lirv. The provisions of this Agreement are severable. The invalidity, or
uneuforeemility, of my one provision in this Agreement shall not affect the other provisions.
(G) Interpretation. The parties acknowledge that this Agreement in its final lone is
Ile result orthe combined efforts of the probes and that, should any provision of (his Agreement
be found to he ambiguous in any way.. such ambiguity shall not be resolved by construing this
Agreement in favor of or against either party, but rather by construing the terms in accordance
with their generally accepted meaning.
(H) Attorney's Fees. If either party is required to conunenue any proceeding or legal
action m enforce or interpret any term, covenant or condition of this Agreemem, the prevailing
petty in such proceeding or action shall be entitled to recover from Ne other para its reasonable
allonacYps fees and legal expenses.
(I) Exhibits. Each exhibit and attachment ref need in this Agreement is. by
reference, incorporated into and made a part of this Agreement.
(p Cumulative Remedies. No remedy or election Hereunder shall be deemed
exclusive but shall. whoever possible, he cumulative with all other remedies at law or in equity.
(K) No Third Party Fora ficiaries. The rights, interests. duties and obligations defined
within this Agreement are intended for the specific ponies hereto as identified in the preamble of
this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not
intended that any rights or interests in this Agreement benefit or flow to the interest of any third
patties.
(L) Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents or this Agreement. This Agreement represents the enfire and integrated
agreement between the parties with respect to the subject matter hereof and supersedes all prior
negotiations. representations or agreements, either wimem or oral. This Agreement may be
modified only by written instrument daily authorized and execmed by hath CITY and FIRST 5.
(M) No ]Dint Venture. The CITY shall not become or be deemed a partner orjaint
venturer with FIRST 5 or someone in any such relationship with FIRST 5 by reason of the
provisions of this Agreement FIRST 5 shall not for any purpose be considered an agent, officer
or employee of the CITY.
(N) No Discrimination. FIRST 5 covenanter and agrees that there shall he no
deed, religion,
ligion against or around
status, n any person or group o age,
or hs on accowthe ene, calor.
reed, religion, sen, marital stares, nationalm,or
ancestry, age, rr handicap, in the sale, Iwo,
sublease. transfer, use necor th r u acture, or a jaymem of the Property. our shall FIRST ti eor
s
any hereto claiming under or through a the
FIRST 5, establish or permit any such practice or practices
of discrimination or segregation in the selentthe property vwvber, use or occupancy of terrents.
Iesscesrsublassees, suhcenunu, or vendees Of the Property.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed,
The day and year f u -above written.
CITY OF FRESNO,
a municipal coryomtion
CELE RUDD
Assistant City Manager
Date: OW141
ATTEST:
REBECCA E. KLISCH
City Clerk
aWtyr
Date: 61d3//o _
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
" (�
By:.rtX
Deputy
Date: Il II .
Addresses:
CITY:
City of Fresno
Attention'. Elliott Balch,
Downtown Revilaliaavnn Manager
26011 Fresno Street
Fresno, CA 93721
Phone: (559)62 14366
FAX, (559) 457-1504
E-MAIL: ellion.balchlu&fresno.gov
CFRLDREN & FAMILIES COMMISSION
OF FRESNO COUNTY (FIRST 5):
� 6, Q,a.,__-_
SUSAN B. ANDERSON
Firsts Commission Chair
KENDRA ROGERS O
First 5 Executive Director
Date: 4173h0
APPROVE AS TO FORM:
KENNETH J. PRICE
Commission Counsel
By: 44
Date: 6/1r//Lo
FIRST 5:
Children & Families Commission
Attention: Kendra Rogers
Executive Director, Fust 5 Fresno County
550 E. Shaw Avenue
Fresno. CA 93710
Photo: (559) 241-65 15
FAX: (559) 241-6510
E-MAIL: KRogers@firu5fiesno.org
Attachments:
Exhibit"A': Legal Description
Exhibit "0": Performance Schedule
EXHIBIT W
APN 41543 4�OST
Grant Deed
Lots 11 th ough 22, inclusive, in Block 127 of the Town (now C4) of Fresno, acmrtling
to the map thereof recortleE June B, 16M, In Book / Page 2 of Plate, Fresrw County
pewNs.
2a1eo6D
PIAT2666
DADATAWIWTi agpi MN a66 W1-0BT.,1rc
Exhibit "B"
PERFORMANCE SCIODIILE
1. FIRST 5 Remonsbl'ries.
During the exclusive Negotiation Period, and without limiting any andamprovision of this
Agreement, FIRST 5 shall complete the fallowing lacks, so its sole cast and expense; in
furtherance of the negotiation process, by the times stated. The nines stated shall mor from the
Effective Date following complete execution of this Agreement by the patties. Should the
parties enter an agreement extending the Negotiation Period and updating this Perfbrnmme
Schedule, the amendment and updated Performance Schedule will supersede this Performance
Schedule.
(a) Identify in writing to the CITY, the names of its decision makers, lead
negotiators the authority for the foregoing, design consultants, architect, engineer, legal counsel
and my other development team members related to the Project. Of acknowledges that
FIRST 5 must competitively obtain doe services of certain consultants. including, but not limited
to, architects and engineers for the Prajecc FIRST 5 will notify CITY when these consultants;
have been retained.
(b) Perform FIRST 5 responsibilities as identified in Section J, below.
2. CITY Resoons bili es.
During the exclusive Negotiation Period, and without fuming any other prevision ofthfs
Agreement, the CITY shall complete the following aides. at its sale cost and expense, all in
furtherance of the negotiation process, by the times stated. The times stated shall run from the
Effective Dale following paniescomplete execution ofthis Agreomem. Should the parties
extend the Negotiation Period and update the performance Schedule, the updated Performance
Schedule shall supersede this Performance Sch Jule.
(a) Identify in writing to FIRST 5 the names of CITY projem co rrinamm
aego ialom and members of its planning and entitlement team.
(b) Provide FIRST 5 with are inventory of existing public infiasaucnne. is locations,
condition and capacity.
(c) Provide or reasonably assist FIRST 5 in obtaining, available and existing public
cords, such as, plans, studies, reports and documents relating to the Property. Such
information may include, without limitation, Environmental Impact Return, line Oeceml Plan,
utility plans, architectural historic surveys. Specific Plans, soils reports, and inning,
redevelopment plan or plans, Owner Participation Rules, any CITY adopted policies, or other
information that may assist FIRST 5 in evaluating the Property.
(d) Perform CITY responsibilities as identified in Section 3, below.
Muttul Resooni b'Tties.
During the exclusive Negotiation Period, and without limiting any other provision of
this Agreement, FIRST 5 and the CITY shall work cooperatively on define the Project anti
identify the costs and process necessary to entitle the Project. At various points the performance
of one patty's responsibilities shall be contingent on the oUer party's performance of its
respective responsibilities, as follows:
(a) FIRST 5 shall. ar its sole tort and expense, prepare for CITY study review and
comment: (i) a conceptual site plan to include site access, number of and type ofstructtue(s),
building setbacks, square montages, uses, floor area ratio, landscaping, and number and type of
parking spaces; (it) a set of exterior elevation and (iii) identification of my potential Property
area boundary modifications.
(b) Upon receipt of FIRST 5's conceptual site plan and exterior elevations, CITY
staff shall, at the CITY's sole con and expense, review the above -referenced conceptual site plan
and exterior elevations. There may be several imations necessary for the conceptual site plan
and exterior elevations to reach a satisfacmry point for high parties.
(c) Upon CITY approval of conceptual site plan and exterior elevations and after
incorporating comments hom CITY stat]', FIRST 5 shall, in its sole cost end expense, prepare
and submit to CITY a complete entitlement application for the Project.
(d) Within twenty(20)days of receipt of the above-refueviced complete entidement
application, the CITY shall, at its sole cost and expense, provide FIRST 5 with a summary of the
steps necessary to enable the Project to proceed m the timeliest manner. The summary shall
include a description and expected timeline of the mps in the entitlement process, the studies or
documents required for compliance with CEQA, and the expected Entitlement Costs (as
previously defined) for all necessary processes, studies, and documents.
(q With respect in the shove -mentioned description, timeline, and cons identified in
subpart (d) of this Section 3. FIRST 5 and Ne CITY shall ince[ within twenty Qol days of
receipt of the above -referenced complete entitlement application anti shall agree upon a
procedure to allocate the payment, and possible reimbursement. of Entitlement Cons to the
parties.
ui��y�g�
1)
FRESNPry
O
NO REPORT TO THE CITY COUNCIL
AGENDA ITEM NO. 9 -)Sank i
COUNCIL MEETING 4/y7hO
Al'ififful KY
June 17,2010
omAarMEar DSEcroa
CRV w1wo;
FROM:
CRAIG SCHARTON, Director
Downtown and Community Revtalization Department
BY:
ELLIOTT BALCH, Downtown Revitalization Manager
Downtown and Community Revitalization Department
SUBJECT:
APPROVE I2 -MONTH EXCLUSIVE NEGOTIATION AGREEMENT BETWEEN THE CITY
OF FRESNO AND CHILDREN 8 FAMILIES COMMISSION OF FRESNO COUNTY ('FIRST
5-) FOR THE POTENTIAL SALE OF A PARCEL OF CITY -OWNED REAL PROPERTY IN
DOWNTOWN FRESNO (APN 4660g40gT) TO FIRST 5
T recommends that the Council approve the attached Exclusive Negotiation Agreement (Exhibit A) between
City of Fresno and Children 8 Families Commission of Fresno County ('First 5').
5 Fresno County Is proposing to develop a cituld core facility, Family Learning Center, and administrative
is at the present site of City of Fresno Parking Lot 'r in Downtown Fresno.
proposed Exclusive Negotiation Agreement (ENA) provides for a 12 -month pered in which to agree to an
opriate design, obtain development entitlements, and determine a price and other terms for the sale of the
owned land to Flrst 5 The final agreement for the purchase of the property would be subject to approval
e City Council and the First 5 Commission.
of the attached ENA.
First 5 Fresno County intends. to develop a multi -use facility on the City of patients 'T Lot" on Tulare Shaer
between N and O Streets. The approximately 45,000 se. ft. she would accommodate a b llding of up to three
stones with a floor area of between 35,000 to 40,000 sq. X. First 5's intent is to utillEe green building practices.
The remaining portion of the parcel would be dedicated to an outdoor play area, paremben-doyee parking, and
The first floor of the building would be utilized as a child care center and Family Learning Center. The
scammUthind floors would house First 5 Fresno County staff and conference areas. The building would have
approximately 40.50 employees working at any given timees"am l0tY a.e':I
ca, , &117110
puomin �
Exclusive Negotiation Agreement with First 5 Fresno County
June 17. 2010
The Family Learning Center, adjacent is the child care center, would include a commercial kitchen, offering the
ability to provitle Instructional workshops on nutrition and benefits of using local farmers produce to provide
simple and healthy meals for your family.
The child care center will be designed and licensed for 90 children and is anticipated! to employ approximately
20 People.
This project will also convert approximately 9,000-12,000 square feet into an outside play area for Ne child
rare faculty and community gardens.
The proposed sale price of $590 000, or $12.29 par sqft., is an aggregation of resu8s from three appraisals
performed on the site over the last two years. These and other terns of the transaction remain subject to final
approval by the City Council and First 5 Commission upon purchase and sale of the property.
Curendy Ne "T Lot" provides parking primarily for City employees who work in Ne Police Depadment complex
along N Street. The Lot's 125 stalls are used by 208 permit -holding permanent and temporary employees,
spread out over two sl Other parking arrangements mud bas offered to these employees gihe site Is
gswl Impact of the transaction will be determined by the results of the proposed Exclusive Negotiation
od. Relevant factors will include the final sale price, the Post of installing a sewer line to serve the property,
costs for entitlement such as environmental studies and documents, City Impact fees, and other applicable
This ENA commits the City to cover the cost of the sewer line and half (up to $25,000) of the entitlement
Exhibit A — Exclusive Negotiation Agreement between the City of Fresno and Children $ Famtlies
Commission of Fresno County