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HomeMy WebLinkAbout1999-227 ., Resolution No. 1999-227 1 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE MAYOR TO EXECUTE A SERVICES AGREEMENT WITH PUBLIC ENTERPRISE 2 GROUP FOR THE PURPOSE OF DEVELOPING PUBLIC-PRIVATE PARTNERSHIPS WITH PRIVATE CORPORATIONS AND OTHER ENTITIES AND 3 PERSONS 4 THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL AS 5 FOLLOWS: , J 6 7 8 and directed to execute on behalf of said City a Services Agreement with Public Enterprise 9 10 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized Group, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. 11 SECTION 2, This resolution is rescinded if the parties to the Agreement fail to 12 execute it within sixty (60) days of the passage of this resolution. 13 III 14 III 15 16 III 17 II 18 II 19 II 20 21 22 23 24 25 26 27 28 " " 1999-227 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL AUTHORIZING THE 1 MAYOR TO EXECUTE A SERVICES AGREEMENT WITH PUBLIC ENTERPRISE 2 GROUP FOR THE PURPOSE OF DEVELOPING PUBLIC-PRIVATE PARTNERSHIPS WITH PRIVATE CORPORATIONS AND OTHER ENTITIES AND 3 PERSONS 6 Common Council of the City of San Bernardino at a joint regular 7th day of September ,1999, by the following vote, to wit: 7 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 LIEN 11 MC GINNIS 12 13 SCHNETZ 14 (vacant) - 5th Ward x x x x 15 ANDERSON 16 17 18 19 x MILLER x (;:2"J.1J ~ ~~;~ /t/ fA day of September , 1999. 20 he foregoing ordinance is hereby approved this 21 22 23 24 pproved as to 25 orm and legal content: 26 27 AMES F. PENMAN, ity Attorney 28 By: " , . .. 1999-227 SERVICES AGREEMENT THIS AGREEMENT is entered into this 7th day of September, 1999, by and between PUBLIC ENTERPRISE GROUP, A California corporation ("CONSULTANT") and the CITY OF SAN BERNARDINO ("CITY"). WITNESSETH: WHEREAS, the City desires to retain the services of Consultant for the purpose of developing public-private partnerships with private corporations and other entities and persons; and WHEREAS, Consultant possesses unique skills in bringing together public entities and private entities fin new and creative ways that mutually benefit both parties; NOW, THEREFORE, the parties hereto agree as follows: Section 1. Scope of Work Consultant is hereby retained by City to engage in negotiations for the purpose of procuring the establishment of corporate partnership agreements between the City and private entities in accordance with the following phases. A. Phase I: Consultant shall develop a list of business entities that potentially could become corporate partners. The list shall be presented by no later than November 1, 1999, to the City Administrator for approval. B. Phase II: Upon written approval of the list of acceptable businesses by the City Administrator, Consultant shall develop a package of partnership and/or . , . 1999-227 associated advertising and sponsorship benefits that could be offered to each identified business entity by not later than January 1, 2000. The City Administrator shall give written approval of each package. C. Phase III: Within 60 days approval of each package as described in Phase II, agent shall develop a marketing plan for each partnership package, describing the types of advertisements that the City may be willing to accept. The marketing plan may include brochures, presentations, models, and site visits to the potential partner businesses. The marketing plan will be approved in writing by the City Administrator. D. Phase IV: Consultant shall implement the marketing plan, approaching City- approved businesses within time lines mutually agreed upon by both the Consultant and the City Administrator. E. Phase V: Consultant shall negotiate a partnership agreement with one or more business entities. Consultant shall obtain letters of intent from each business entity indicating the entity's willingness to enter into a partnership agreement with the City. These letters shall be referred to the City Administrator for preparation of agreements between each business entity and the City. All agreements shall be subject to final approval of the Mayor and Common Council. The City may require time to investigate the 2 1999-227 appropriateness of the proposed partnership agreement before granting or withholding approval. F. Phase VI: The Mayor and Common Council retain complete authority to disapprove any proposed agreement, including agreements that have resulted from marketing plans previously granted approval. The City shall have no obligation under any circumstances to pay Consultant commissions on a given agreement, if such a proposed agreement is denied. Section 2. Additional Consultant Duties and Obliqations A. Consultant shall exercise his best efforts, using his skill, experience, and knowledge to the best of his professional ability in providing the services required under this Agreement. B. Consultant shall inform City of any fact or occurrence that affects City interests. Consultant shall also disclose to City any personal, business, or financial interest, including but not limited to any ownership interest in, representation of, or employment by any person or firm providing any product or service that competes with any product or service by City that may actually or potentially impair or otherwise affect Consultant's ability to represent the City's interest to the maximum extent contemplated by this Agreement. C. Consultant shall have no power or authority to contract directly with any third party in connection herewith or in any manner on behalf of the City. Consultant shall inform all prospective parties seeking corporate partnerships 3 1999-227 that the Mayor and Common Council of the City of San Bernardino retains the sole, unfettered discretion to enter into a corporate partnership agreement. D. Consultant shall not serve any of the City's competitors with respect to any of the business entities with whom the City is seeking a partnership agreement, without prior disclosure and specific written approval by the City. E. Pursuant to the California Political Reform Act, Consultant shall be considered to be a "consultant" subject to the terms of the Act, within the meaning of the various regulations the Fair Political Practices Commission has promulgated concerning consultants. Consultant shall file a Statement of Economic Interest with the City Clerk upon execution of this Agreement, and subsequently on an annual basis and upon termination of this Agreement. Further, Consultant shall comply with California Government Code Section 1090. F. Consultant shall review and become familiar with the San Bernardino City Charter. Section III. Compensation and Expenses. A. Consultant shall receive a twelve percent (12%) commission on total gross revenues generated by the first partnership agreement procured by Consultant and formally approved by the Mayor and Common Council, less the credit described in Section III, Part D below. It is understood that this commission will be paid on actual revenues received during the partnership agreement, with the each installment to be paid within ninety (90) days following receipt of revenues by the City. 4 . 1999-227 B. Consultant shall receive a seven percent (7%) commission on all partnership agreements subsequent to the first such agreement, less any remaining credit applicable in accordance with Section III, Part 0 below. C. The packaging and pricing of partnership agreements may be changed by the City at its discretion from time to time, and Consultant shall not receive any increased commission as a result of such change, unless Consultant negotiated the change. If the City's revenues from a partnership agreement are reduced, then the commissions due shall be reduced accordingly. Commissions shall only be paid from total gross revenues and on a project by project cash accounting basis. City shall have no obligation to pay commissions on benefits received pursuant to a partnership agreement where the benefits are of a non-cash nature, including but not limited to provision of property or services to the City. D. Consultant shall receive four (4) recoverable draws against future commissions. The total of the draws due shall be sixteen thousand dollars ($16,000). These draws shall be paid as follows: a. $4,000 upon execution of this Agreement; b. $4,00030 days after execution of this Agreement; c. $4,000 60 days after execution of this Agreement; d. $4,00090 days after execution of this Agreement. The draws shall be credited against any commissions due Consultant under this Agreement. 5 1999-227 E. City shall reimburse Agent's travel, printing, and other out-of-pocket expenses, not to exceed Ten Thousand Dollars ($10,000). The City Administrator shall approve all expense reimbursements. Section 4. Exclusivitv. Consultant shall have the exclusive right for acquiring corporate partnership agreements for the term of this Agreement. Section 5. Representation to Sponsors. Consultant shall not make any statements or representations to prospective partners or other promotional benefits that could mislead or confuse the partners. Consultant shall indemnify, hold harmless and defend the City from and against any and all claims, damages, liabilities, losses, costs, charges, and expenses (including reasonable attorney's fees) resulting therefrom, which may be brought in connection with or arising from any such statements or representations. Section 6. Indemnitv. Consultant shall indemnify, defend and hold harmless the City, its officers, employees and agents (including, without limitation, reasonable costs of defense and reasonable attorneys' fees) arising out of or related to City's performance of this Agreement, except that such duty to indemnify, defend and hold harmless shall not apply where injury to person or property is caused by City's willful misconduct or negligence. City shall indemnify, defend and hold harmless the Consultant, its officers, employees and agents (including, without limitation, reasonable costs of defense and reasonable attorney's fees) arising out of or 6 1999-227 related to Consultant's performance of this Agreement, except that such duty to indemnify, defend and hold harmless shall not apply where injury to person or property is caused by Consultant's willful misconduct or negligence. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of City shall be considered as "attorneys' fees" for the purposes of this paragraph. Section 7. Insurance. While not restricting or lirniting the foregoing, during the term of this Agreement, Consultant shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory Worker's compensation coverage, and shall file copies of said policies with the City's Risk Manager prior to undertaking any work under this Agreement. City shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the City shall require the insurer to notify City of any change or termination in the policy. Section 8. No emplovment. Consultant shall perform work tasks provided by this Agreement; but for all intents and purposes Consultant shall be an independent contractor and not an agent or employee of the City. Consultant shall not receive any salary, bonuses, or employment benefits from the City. City makes no representations or warranties about the total amount of commissions or other remuneration that Agent may earn from the procurement of corporate partnership arrangements. 7 1999-227 Section 9. Non-discrimination. In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not discriminate on the basis of race, creed, color, religion, sex, physical handicap, ethnic background or country of origin. Section 10. Term: Severabilitv. A. The term of this Agreement shall be twenty-four (24) months, commencing on the date of execution of this Agreement by the parties hereto. B. Any time after ninety (90) days following the execution of this Agreement, this Agreement may be terminated without cause upon thirty (30) days written notice by either Consultant or City. C. In the event Consultant or any employee of Consultant breaches this Agreement when performing services on behalf of City for the benefit of City, City shall have the right to terminate this Agreement immediately upon written notice to Consultant. City shall have no obligation to pay Consultant commissions in connection with any matter for which Consultant was terminated for cause. Termination of this Agreement by City shall not limit any other right or remedy which City may have under this Agreement, at law or in equity. D. If the City terminates this agreement without cause, Consultant shall be paid the commission provided for in Section 2 of this Agreement, if the partnership agreement is executed within 180 calendar days after the termination of this Agreement, and the Consultant has had negotiations with the entity that entered into the partnership agreement prior to the termination of this Agreement, 8 1999-227 provided that the City had received notice in writing from Consultant of the names of the prospective sponsors before or upon termination of this Agreement. Section 11. Entire Aqreement Amendment. This Agreement comprises the entire agreement of and between the parties with respect to the subject matter hereof. This Agreement may be amended or supplemented only by written agreement of City and Consultant. Section 12. Waiver of Breach. Any failure of Consultant and City to comply with any provision of this Agreement may be expressly waived in writing, but such waiver shall not be construed as a waiver of or an estoppel with respect to any subsequent or other breach. Section 13. Assiqnment Successors and Assiqns. Consultant shall have no right to assign, sell, transfer or delegate, whether involuntary or by operation of law, any right or obligation under this Agreement without the prior written consent of City. Any purported assignment, transfer or delegation in violation of this section shall be null and void. Subject to the foregoing limits on assignment and delegation, this Agreement shall be binding and shall inure to the benefit of the parties and their respective successors and assigns. Section 14. Controllinq Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. 9 1999-227 Section 15. Notices. Any notice to be given pursuant to this Agreement shall be deposited with the United Postal Services, postage prepaid and addressed as follows: TO THE CITY: City Administrator's Office 300 North "D" Street San Bernardino, CA 92418 Facsimile (909) 384-5138 TO THE CONSULTANT: Don Shulte, President The Public Enterprise Group 215 Main St. Huntington Beach, CA 92648 Notice may also be given by facsimile ("fax") during regular business hours to the numbers listed above, and such notice shall be deemed given upon receipt as reflected in a transmission verification. Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 10 , 1999-227 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and date first above written. Date: SePtember~, 1999 The Public Enterprise Group, a California corporation CITY OF SAN BERNARDINO By: !~ij~u;j J I1(N(r1'r By: ~ Date: Date: ATTEST: ~Ci~ APPROVED AS TO FORM AND LEGAL CONTENT: By: 11