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HomeMy WebLinkAboutCDC/2001-22 1 RESOLUTION NO. CDC/2001-22 2 3 4 5 6 7 8 9 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR REAL ESTATE ACQUISITION SERVICES BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND CUTLER & ASSOCIATES, INC. (HUB PROJECT) WHEREAS, an area of the City of San Bernardino (the "City") generally situated along the west 10 side of Tippecanoe Avenue to the north of the right-of-way of the Interstate 10 Freeway referred to as the "HUB Project Site" is within the redevelopment project area of the Inland Valley Development Agency, ajoint powers authority formed pursuant to Health and Safety Code Sections 33492.10 et seq., 11 12 for the purpose of assisting in the conversion and civilian reuse of the former Norton Air Force Base and other lands situated in the City; and 13 14 WHEREAS, the Inland Valley Development Agency, the City and the Redevelopment Agency 15 ofthe City of San Bernardino (the "Agency") entered into an agreement entitled "1999 Redevelopment Cooperation Agreement" dated as of July 12, 1999 (the "Redevelopment Cooperation Agreement"), 16 pursuant to which the Inland Valley Development Agency granted the Agency the right, power and 17 18 authority to act for and on behalf of the Inland Valley Development Agency for the purposes of exercising the redevelopment powers of the Inland Valley Development Agency; and WHEREAS, the HUB Project Site contains residential and commercial developed properties, 19 20 21 and the Agency initiated certain studies and proposals to address a number of issues of community concern on the HUB Project Site relating to blight and conditions associated with obsolete commercial 22 23 24 design, deferred maintenance, traffic circulation and conflicting commercial-residential neighborhood property use and community design in an effort to eliminate and prevent the spread of blight from the HUB Project Site; and 25 WHEREAS, the Agency approved a Disposition and Development Agreement, dated as of May 26 21,2001, with SBT Partners, LLC, regarding redevelopment ofthe HUB Project Site (the "DDA"); and 27 28 SB200]:17]41.1 -1- CDC/2001-22 1 WHEREAS, under the DDA, the Agency should exert its best efforts in cooperation with the 2 Inland Valley Development Agency to acquire 19 vacant lots and 35 parcels containing one or more 3 residential units by December 2001; and 4 WHEREAS, the Agency, as currently staffed, does not have the manpower to manage the 5 acquisition of the number of properties required for Phase I of the HUB Project within the time 6 parameters set forth in the DDA; and 7 WHEREAS, to meet the property acquisition obligations in the DDA, the Agency solicited 8 proposals from real estate acquisition consultants to perform the Phase I acquisitions; and 9 WHEREAS, the Agency evaluated the responses received to the solicitation for proposals and 10 desires to retain Cutler & Associates, Inc., to perform the Phase I real property acquisition services 11 required under the DDA; 12 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE 13 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, 14 CALIFORNIA, AS FOLLOWS: 15 Section 1. On June 18,2001, the Agency considered the Professional Services Agreement 16 with Cutler & Associates, Inc., attached to this Resolution as Exhibit "A" (the "Agreement") at a public 17 meeting. The minutes of the Agency Secretary for the June 18,2001, meeting ofthe Agency include 18 a record of all documents, communication and testimony submitted to the Agency regarding the 19 Agreement. 20 Section 2. The Commission hereby approves the Agreement in the form attached hereto as 21 Exhibit "A." The Chairperson of the Commission and the Agency Secretary are hereby authorized and 22 directed to execute the Agreement on behalf of the Agency together with technical and conforming 23 changes, as may be recommended by the Executive Director and Agency Counsel. 24 Section 3. This Resolution shall take effect upon adoption. 25 I I II 26 I I II 27 IIII 28 I I I I SB2001 :17141.1 -2- CDC/2001-22 1 RESOLUTION OFTHE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE FORM OF AND 2 AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR REAL ESTATE ACQUISITION SERVICES BETWEEN THE REDEVELOPMENT 3 AGENCY OF THE CITY OF SAN BERNARDINO AND CUTLER & ASSOCIATES, INC. (HUB PROJECT) 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community Development Commission of the City of San Bernardino at a j oint regular meeting thereof, 6 held on the 18th day of June ,2001, by the following vote, to wit: 7 Commission AYES NAYS 8 ESTRADA X LIEN X 9 McGINNIS X SCHNETZ 10 SUAREZ X ANDERSON X 11 McCAMMACK X 12 13 14 ABSTAIN ABSENT X The foregoing Resolution is hereby approved this f, June 2001. I , hairperson ty Development Commission ty of San Bernardino SB2001:17141.1 -3- 1 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss 2 CITY OF SAN BERNARDINO ) 3 I, Secretary ofthe Community Development Commission of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attached copy of 4 Community Development Commission of the City of San Bernardino Resolution No. is a full, true and correct copy of that now on file in this office. 5 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of 6 the Community Development Commission of the City of San Bernardino this day of ,2001. 7 8 9 Secretary of the Community Development Commission of the City of San Bernardino 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SB200l :17141.1 -4- REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AGREEMENT FOR REAL EST A TE ACQUISITION SERVICES (Cutler & Associates, Inc.) This AGREEMENT FOR REAL ESTATE ACQUISITION SERVICES (the "Agreement") is made and entered into as ofJune 18,2001, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO (the "Agency"), a public body existing and functioning pursuant to Health and Safety Code Sections 33000, et seq., and CUTLER & ASSOCIATES, INC., a California corporation (the "Consultant"), NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND MUTUAL PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS: 1. SCOPE OF CONSULTANT SERVICES. The Agency hereby retains the Consultant to provide the consulting services set forth in the Scope of Services attached hereto as Exhibit" A" and incorporated herein by this reference. The Consultant hereby agrees to perform the work set forth in the Scope of Services, in accordance with the terms of this Agreement. 2. PAYMENT BY AGENCY FOR WORK PERFORMED BY CONSULTANT. A. The Agency shall compensate the Consultant a fixed fee of $89,000.00 for performance of the services set forth in the Scope of Services. B. The compensation designated in subsection A shall be the "Total Fee" for the performance of the work set forth in the Scope of Services. The Total Fee shall include, but not be limited to, the salaries of all subcontractors retained by the Consultant to perform work pursuant to this Agreement and shall be inclusive of all costs and expenses incurred for mileage, travel, graphics, telephone, printing, fax transmission, postage, copies and such other expenses related to completion of the work set forth in the Scope of Services. C. The Consultant shall invoice the Agency for work performed by the Consultant under this Agreement each calendar month during the term of this Agreement. D. The Consultant shall submit invoices under this Agreement to: Redevelopment Agency of the City of San Bernardino Attention: Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 5B2001:17202.1 1 E. Each invoice of the Consultant shall set forth the time and expenses of the Consultant incurred in performance of the Scope of Services, during the period of time for which the invoice is issued. Each invoice of the Consultant shall clearly set forth the names of the individual personnel of the Consultant and any individual subconsultants utilized by the Consultant, during the time period covered by the invoice, a description of the professional services rendered on a daily basis by each named individual during such time period, the respective hourly rates of each named individual and the actual time expended by each named individual. Each invoice of the Consultant shall be accompanied by copies of all third party invoices for other direct costs incurred and paid by the Consultant during such time period. The Agency shall pay all amounts set forth on the invoices of the Consultant and approved by the Executive Director, within thirty (30) days of such approval. 3. RECORDS RETENTION. Records, maps, field notes and supporting documents and all other records pertaining to the use of funds paid to the Consultant hereunder shall be retained by the Consultant and available to the Agency for examination and for purposes of performing an audit for a period of five (5) years from the date of expiration or termination of this Agreement or for a longer period, as required by law. Such records shall be available to the Agency and to appropriate county, state or federal agencies and officials for inspection during the regular business hours of the Consultant. If the Consultant does not maintain regular business hours, then such records shall be available for inspection between the hours of9 a.m. and 5 p.m. Monday through Friday, excluding federal and state government holidays. In the event of litigation or an audit relating to this Agreement or funds paid to the Consultant by the Agency under this Agreement, such records shall be retained by the Consultant until all such litigation or audit has been resolved. 4. INDEMNIFICATION. The Consultant shall defend, indemnify and hold harmless the Agency, its officers, employees, representatives, and agents from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury or damage of any type claimed as a result of the negligent acts or omissions or willful misconduct of the Consultant, its officers, employees, subcontractors and agents, arising from or related to performance by the Consultant of the work required under this Agreement, except to the extent that such loss or damage may be caused by the negligence or willful misconduct of the Agency, its officers or employees. The costs, salary and expenses of the Ciry Attorney and members of his office enforcing this Agreement on behalf of the Agency shall be considered as "attorneys' fees" for purposes of this paragraph. 5. INSURANCE. A. The Consultant shall maintain insurance policies issued by an insurance company or companies authorized to do business in the State of California and that maintain during the term of the policy a "General Policyholder's Rating" of at least A(v), as set forth in the then most current edition of "Best's Insurance Guide," as follows: 5B2001:17202.1 2 (1) Automobile Insurance. The Consultant and each of its subcontractors shall maintain comprehensive automobile liability insurance of not less than $1,000,000.00 combined single limit per occurrence for all vehicles leased or owned by the Consultant or its subcontractors and used in completing the work required under this Agreement. (2) Worker's Compensation Insurance. The Consultant and each of its subcontractors shall maintain worker's compensation coverage in accordance with California workers' compensation laws for all workers under the Consultant's and/or subcontractor's employment performing work under this Agreement. (3) Errors and Omissions Coverage. The Consultant shall maintain an insurance policy covering liability for errors and omissions of the Consultant in performance of the Scope of Services of this Agreement in an amount of not less than $1,000,000.00. B. Concurrent with the execution of this Agreement and prior to the commencement of any work by the Consultant, the Consultant shall deliver to the Agency certificates evidencing the existence of the insurance coverage required herein, which coverage shall remain in full force and effect continuously throughout the term of this Agreement. Each policy of insurance that Consultant purchases in satisfaction of the insurance requirements of this Agreement shall name the Agency as an additional insured and shall provide that the policy may not be cancelled, terminated or modified, except upon 30 days prior written notice to the Agency. 6. OWNERSHIP AND REUSE OF DOCUMENTS AND OTHERMATERlALS AND INFORMATION. All maps, photographs, data, information, reports, drawings, specifications, computations, notes, renderings, correspondence or other documents generated by or on behalf of the Consultant for performance of the work set forth in the Scope of Services shall be the property of the Agency, as of the time of their preparation and payment therefor by the Agency, and shall be delivered to the Agency upon written request to the Consultant. 7. PRESS RELEASES. Press or news releases, including photographs or public announcements, or confirmation of the same related to the work to be performed by the Consultant under this Agreement shall only be made by the Consultant with the prior written consent of the Agency. 8. CONFIDENTIALITY OF MATERIALS AND INFORMATION. The Consultant shall keep confidential all reports, survey notes and observations, information, and data acquired or generated in performance of the work set forth in the Scope of Services, which the Agency designates confidential. None of such designated confidential materials or information may be made available to any person or entity, public or private, without the prior written consent of the Agency. 5B2001:17202.1 3 9. DEFAULT AND REMEDIES. A. Failure or delay by any party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within seven (7) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. B. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein. C. Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties under this Agreement are cumulative and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. D. In the event that a default of any party to this Agreement may remain uncured for more than seven (7) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings. 10. TERMINATION. A. This Agreement may be terminated by either party for any reason by giving the other party fifteen (15) calendar days prior written notice. The Agency shall pay the Consultant for all work authorized by the Agency and completed, prior to the effective termination date. B. In the event of a termination of this Agreement under this section, the Consultant shall provide all documents, notes, maps, reports, data or other work product developed in performance of the Scope of Services of this Agreement to the Agency, within ten (10) calendar days of such termination and without additional charge to the Agency. 11. NOTICE. All notices given hereunder shall be in writing. Notices shall be presented in person or by certified or registered United States Mail, return receipt requested, postage prepaid or by overnight delivery by a nationally recognized delivery service to the addresses set forth below. 5B2001:17202.1 4 Notice presented by United States Mail shall be deemed effective on the third business day following the deposit of such Notice with the United States Postal Service. This section shall not prevent the parties hereto from giving notice by personal service or telephonically verified fax transmission, which shall be deemed effective upon actual receipt of such personal service or telephonic verification. Either party may change their address for receipt of written notice by notifying the other party in writing of a new address for delivering notice to such party. CONSULTANT: Cutler & Associates, Inc. 610 Pacific Coast Highway, Suite 100 Seal Beach, California 90740-6604 Attention: John M. Cutler Agency: Redevelopment Agency of the City of San Bernardino Attention: Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 12. COMPLIANCE WITH LAW. The Consultant shall comply with all local, state, and federal laws, including, but not limited to, environmental acts, rules and regulations applicable to the work to be performed by the Consultant under this Agreement. The Consultant shall maintain all necessary licenses and registrations for the lawful performance of the work required of the Consultant under this Agreement. 13. NONDISCRIMINATION. The Consultant shall not discriminate against any person on the basis of race, color, creed, religion, natural origin, ancestry, sex, marital status or physical handicap in the performance of the Scope of Services of this Agreement. 14. CONSULTANT AND EACH SUBCONTRACTOR ARE INDEPENDENT CONTRACTORS. The Consultant shall at all times during the performance of any work described in the Scope of Services be deemed to be an independent contractor. Neither the Consultant nor any of its subcontractors shall at any time or in any manner represent that it or any of its employees are employees of the Agency or any member agency of the Agency. The Agency shall not be requested or ordered to assume any liability or expense for the direct payment of any salary, wage or benefit to any person employed by Consultant or its subcontractors to perform any item of work described in the Scope of Services. 15. SEVERABILITY. Each and every section of this Agreement shall be construed as a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof to certain circumstances shall be declared invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is declared invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 5B2001:17202.1 5 16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties. This Agreement supersedes all prior negotiation, discussions and agreements between the parties concerning the subject matters covered herein. The parties intend this Agreement to be the final expression of their agreement with respect to the subjects covered herein and a complete and exclusive statement of such terms. 17. AMENDMENT OR MODIFICATION. This Agreement may only be modified or amended by written instrument duly approved and executed by each of the parties hereto. Any such modification or amendment shall be valid, binding and legally enforceable only if in written form and executed by each of the parties hereto, following all necessary approvals and authorizations for such execution. 18. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. Any legal action arising from or related to this Agreement shall be brought in the Superior Court of the State of California in and for the County of San Bernardino. 19. NON-WAIVER. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the same provision or any remaining provisions of this Agreement. 20. ASSIGNMENT. This Agreement may not be assigned by the Consultant without the prior written consent of the Agency. 21. REPRESENTATIONS OF PERSONS EXECUTING AGREEMENT. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent. 22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will constitute an original. 23. EFFECTIVENESS OF AGREEMENT AS TO THE Agencv. This Agreement shall not be binding on the Agency, until signed by an authorized representative of the Consultant, approved by the Agency, approved as to form by Agency Counsel and executed by the Chairperson of the Community Development Commission of the City of San Bernardino and the Agency Secretary. 24. CONFLICTS OF INTEREST. Consultant hereby represents that it has no interests adverse to the Agency, at the time of execution of this Agreement. Consultant hereby agrees that, during the term of this Agreement, the Consultant shall not enter into any agreement or acquire any interests detrimental or adverse to the Agency. SB200 1: 17202.1 6 Further, Consultant hereby represents and warrants to Agency that Consultant and any partnerships, individual persons or any other party or parties comprising Consultant, together with each subcontractor who may hereafter be designated to perform services pursuant to this Agreement, do not have and, during the term of this Agreement, shall not acquire any property ownership interest, business interests, professional employment relationships, contractual relationships of any nature or any other financial arrangements relating to the Agency, property over which the Agency has jurisdiction or any members or staff of the Agency that have not been previously disclosed in writing to Agency, and that any such property ownership interests, business interests, professional employment relationships, contractual relationships or any nature or any other financial arrangements will not adversely affect the ability of the Consultant to perform the services to Agency as set forth in this Agreement. IIII IIII IIII IIII 5B2001:17202.1 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated next to the authorized signatures of the officers of each of them as appear below. AGENCY Redevelopment Agency of the City of San Bernardino Dated: 7/4 /CJ/ ( / By: Dated: By: Approved As To Form: BY~ Agency Spe a Counsel CONSULTANT Cutler & Associates, Inc., a California corporation Dated: b/r/, ,I /-)..A /..; n ...! ..- -' i ,-' /,' ,f ! "'" , .\.... ..._ ,I .' .. . . ,1-... " By: 1/ l, II ( (C.. .-LA.;c~ Titre: / (f;:'.(~: ------ Dated: 0(.11'1'::- l5 7. 06 ( BY~~ Title: .. ~{ 5B2001:17202.1 8 EXHIBIT" A" SCOPE OF SERVICES HUB RETAIL PROTECT ACQUISITION SCOPE OF SERVICES 1. Review existing Agency Acquisition Policies and Procedures and recommend any specific modifications to such policies and procedures as indicated. 2. Prepare Policies and Procedures Information Booklet for specific project for presentation to affected property owners, tenants and the general public, as necessary. 3. Review fee appraisals as necessary, upon delivery to the Agency. 4. Develop and coordinate Furniture, Fixture and Equipment list for the affected business. 5. Prepare and make presentations to public groups, staff and elected officials, as required, including, business and neighborhood associations, and Redevelopment Agency board members. 6. Obtain and review title reports and/or litigation guarantees as may be required. 7. Prepare all offer letters, summary statements, and lists of compensable items of fixtures and equipment, in accordance with state or federal regulations and approval of legal counsel. 8. Personally negotiate with the property owners and business tenants (or their appointed representatives) for the purchase of the required property rights. Present the written offer to purchase to the appropriate owners or their representatives in person, when possible. 9. Upon the initiation of negotiations, transmit receipted offer letters will be to the clients soon as possible. In instances where the property owners declines to receipt for the offer to purchase, a certification of presentation will be forwarded to the client. 10. Subject to concurrence of property owner prior to execution of acquisition agreement with Agency, coordinate contacts with tenants in person and Agency Relocation Consultant. 11. Continue personal negotiations with the property owners and tenants until every reasonable effort has been expended and it appears that the only remaining method of acquisition is through eminent domain proceedings. 12. Prepare all acquisition agreements, deeds and other documents necessary to complete the acquisition. 5B2001:17202.1 A-I 13. Assist tin the preparation of Agency agenda items and public hearing notices, as necessary for approval of acquisition terms. 14. At such time that negotiations appear to be unsuccessful and eminent domain proceedings have commenced by the Agency, provide coordination and assistance necessary to aid the condemnation counsel. 15. In the course of negotiations with the property owners and tenants, provide all necessary information to and work with the Agency Relocation Consultant, and Agency staff, in order to expeditiously and professionally complete the Project. 16. Maintain a diary of all pertinent information and contacts concerning the Project parcels. 17. Provide a written summary of the status of the acquisition of each parcel on a monthly basis, and/or upon request of Agency staff. 18. Promptly transmit all executed documents on successfully negotiated parcels to Agency for acceptance, including necessary supporting agenda items and/or requests for approval. 19. Coordinate clearance/elimination of clouds on title and liaison with developer due diligence work, including coordination of on-site pre-acquisition inspections of properties by developer and its agents. 5B2001: 17202.1 A- 2