HomeMy WebLinkAbout09-Community Development ORIGINAL
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION,
From: Valerie C. Ross, Interim Director Subject: Resolution Approving Agreement
for Services with Keyser Marston
Dept: Community Development Associates, Inc. for Professional Planning
and Real Estate Services.
Date: September 22, 2010
MCC Date: October 4, 2010
Synopsis of Previous Council Action:
None.
Recommended Motion:
Adopt Resolution.
Valerie C. Ross
Contact person: Valerie C. Ross Phone: 5357
Supporting data attached: Staff Report,Resolution Ward:Citywide
FUNDING REQUIREMENTS: Amount: $50,000
Source: (Acct.Nos.) 001-180-5502-0000-0029
Acct. Description: Professional/Contractual Services
Finance::
Council Notes: es� 6/(,) 9
Agenda Item No. q
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution Approving Agreement for Services with Keyser Marston Associates, Inc. for
Professional Planning and Real Estate Services.
Background:
Staff released a Request for Qualifications/Request for Proposals to obtain consultant services
for real estate development issues. In particular, staff was looking for a consultant with
experience in negotiating transactions, preparing and reviewing fiscal impact analyses,
determining financial feasibility, recommending financing strategies, and developing economic
development strategies for projects such as Arrowhead Springs and University Hills.
Pursuant to Section 3.04.085 of the Municipal Code, the RFQ/RFP was sent to Webb &
Associates, Revenue and Cost Specialists, and Keyser Marston Associates, Inc., three consulting
firms with experience in real estate development issues. Only Keyser Marston submitted a
proposal. However, the firm is highly qualified and staff wishes to proceed with an Agreement
for Services. The Agreement for Services is based on time and materials for a not to exceed cost
of $50,000. The funding source is the Planning Division's professional/contractual services
account.
Financial Impact:
Funds for this service in the amount of$50,000 are appropriated in the Community Development
Department, Planning Division, FY 2010-11 budget account for professional/contractual services
(Account No. 001-180-5502-0000-0029).
Account: 001-180-5502-0000-0029 Budgeted Amount: $235,000
Balance as of 9-29-2010: $226,216 Balance after approval of this item: $176,216
Please note this balance does not indicate available funding. It does not include non-
encumbered reoccurring expenses or expenses incurred, but not yet processed.
Recommendation:
Adopt Resolution.
Attachments:
1 Resolution \
2
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution Approving Agreement for Services with Keyser Marston Associates, Inc. for
Professional Planning and Real Estate Services.
Background:
Staff released a Request for Qualifications/Request for Proposals to obtain consultant services
for real estate development issues. In particular, staff was looking for a consultant with
experience in negotiating transactions, preparing and reviewing fiscal impact analyses,
determining financial feasibility, recommending financing strategies, and developing economic
development strategies.
Pursuant to Section 3.04.085 of the Municipal Code, the RFQ/RFP was sent to Webb &
Associates, Revenue and Cost Specialists, and Keyser Marston Associates, Inc., three consulting
firms with experience in real estate development issues. Only Keyser Marston submitted a
proposal. However, the firm is highly qualified and staff wishes to proceed with an Agreement
for Services. The Agreement for Services is based on time and materials for a not to exceed cost
of $50,000. The funding source is the Planning Division's professional/contractual services
account.
Financial Impact:
Funding in the amount of$50,000 is available through Planning's professional/contractual
services account.
Recommendation:
Adopt Resolution.
Attachments:
1 Resolution
2
c 0 -
RESOLUTION NO.
1
2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A
AGREEMENT FOR SERVICES WITH KEYSER MARSTON ASSOCIATES, INC. T
3
PROVIDE PROFESSIONAL PLANNING AND REAL ESTATE SERVICES.
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5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7
8 SECTION 1. That the City Manager is authorized to execute the Agreement for Service•
9 with Keyser Marston Associates, Inc. for professional planning and real estate services, sail
10 Agreement is attached as Exhibit "A" and incorporated herein.
11 SECTION 2. This Agreement shall not take effect or become operative until fully signed an.
12 executed by the parties and no party shall be obligated hereunder until the time of such ful
13 execution. No oral agreements, amendments, modifications or waivers are intended or authorizes
14 and shall not be implied from any act or course of conduct of any party.
15 SECTION 3. The authorization to execute this agreement is rescinded if the parties fail t.
16 execute it within sixty (60) days of passage of this resolution.
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RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING AN
2 AGREEMENT FOR SERVICES WITH KEYSER MARSTON ASSOCIATES, INC. TO
PROVIDE PROFESSIONAL PLANNING AND REAL ESTATE SERVICES.
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I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a meeting thereof, held
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on the day of , 2010, by the following vote, to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT
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MARQUEZ
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DESJARDINS
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BRINKER
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SHORETT
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KELLEY
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JOHNSON
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MC CAMMACK
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Rachel Clark, City Clerk
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The foregoing resolution is hereby approved this day of , 2010.
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21
Patrick J. Morris, Mayor
22 City of San Bernardino
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Approved as to form:
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25 JAMES F. PENMAN,
City Attorney
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27 I
28 By: ,, '%
_2
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this day of , 2010
("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city
("City"), and KEYSER MARSTON ASSOCIATES, INC. ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to have Consultant provide professional planning and
real estate services; and
B. WHEREAS, Consultant represents and warrants that it has the specialized
expertise and experience required to provide these services and holds all necessary
licenses to practice and perform the professional services contemplated in this
Agreement; and
C. WHEREAS, City and Consultant desire to contract for the performance of the
services described below and as attached, and desire to set forth their rights, duties and
liabilities concerning the performance of the services; and
D. WHEREAS, no official or employee of the City has a financial interest, within the
provisions of California Government Code sections 1090-1092, in the subject matter of
this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained in this Agreement, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Work. Consultant shall provide professional planning and real
estate services in accordance with the Scope of Work and Cost Estimate proposed by
Consultant, attached to this Agreement as Attachment 1 and made a part of this
Agreement by reference. It is agreed that Consultant shall complete its duties in
accordance with applicable State law and other requirements as acknowledged in the
attached Scope of Work.
1.2. Professional Practices. All professional and contractual services to be
provided by Consultant pursuant to this Agreement shall be provided by personnel
experienced in their respective fields and in a manner consistent with the standards of
care, diligence and skill ordinarily exercised by professional consultants in similar fields
and circumstances in accordance with sound professional practices. Consultant also
warrants that it is familiar with all laws that may affect its performance of this Agreement
and shall advise City of any changes in any laws that may affect Consultant's
1 Exhibit "A"
performance of this Agreement. Consultant further warrants that it and its personnel have
no professional, personal, or other affiliation with or connection to owners of property or
business entities in the City of San Bernardino that could interfere with Consultant's
performance of its obligation under this Agreement.
1.3. Warranty. Consultant warrants that it shall perform the services required
by this Agreement in compliance with all applicable Federal and California employment
laws including, but not limited to, those laws related to minimum hours and wages;
occupational health and safety; fair employment and employment practices; workers'
compensation insurance and safety in employment; and all other Federal, State and local
laws and ordinances applicable to the services required under this Agreement. Consultant
shall defend, indemnify and hold harmless City from and against all claims, demands,
payments, suits, actions, proceedings, and judgments of every nature and description
including attorneys' fees and costs, presented, brought, or recovered against City for, or
on account of any liability under any of the above-mentioned laws, which may arise out
of Consultant's performance under this Agreement.
1.4. Non-discrimination. In performing services pursuant to this Agreement,
Consultant shall not engage in, nor permit its agents to engage in, discrimination in
employment of persons because of their race, religion, color, national origin, ancestry,
age, physical handicap, medical condition, marital status, sexual gender or sexual
orientation, or on any other basis prohibited by law, except as permitted pursuant to
Section 12940 of the California Government Code. Violation of this provision may result
in the imposition of penalties referred to in California Labor Code section 1735.
1.5 Non-Exclusive Agreement. Consultant acknowledges that City may enter
into agreements to have other consultants or contractors perform, or may have City's own
employees perform, services that are similar to the services to be performed under this
Agreement.
1.6. Delegation and Assignment. This is a personal service agreement, and the
duties to be performed by Consultant pursuant to this Agreement shall not be delegated or
assigned to any other person or entity without the prior written consent of City.
1.7. Business Registration. Consultant shall obtain and maintain a valid City
Business Registration Certificate during the term of this Agreement.
1.8. Duty of Loyalty/Conflict of Interest. Consultant understands and agrees
that as the City's consultant, Consultant shall be subject to a fiduciary duty and a duty of
loyalty to the City in performing Consultant's obligations under this Agreement.
Consultant, in performing its obligations under this Agreement, is governed by
California's conflict of interest laws, Government Code section 87100 et seq., and Title 2
of the California Code of Regulations section 18700 et seq.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Over the term of this Agreement, Consultant shall be
2
compensated for its services according to the Cost Estimate contained in Attachment 1,
for a total amount not to exceed $50,000.
2.2. Additional Services. Consultant shall not receive compensation for any
services other than the services specified in this Agreement unless City, prior to
Consultant performing the additional services, approves the services in writing. It is
specifically understood that oral requests and/or approvals of additional services or
compensation are unenforceable.
2.3. Method of Billing. Consultant shall submit invoices to the Assistant City
Manager for approval on a monthly basis. Each invoice shall describe in detail the
services performed, the time spent to perform said services and the amounts charged for
all services completed to the sole satisfaction of City during the period covered by the
invoice. City shall pay Consultant's invoice within forty-five (45) days from the date City
receives the invoice. Any additional services approved and performed pursuant to this
Agreement shall be designated on the invoice as "Additional Services" and the invoice
shall identify the number of the authorized change order, where applicable.
2.4. Records and Audits. Consultant shall maintain records of all services it
performs pursuant to this Agreement in accordance with generally accepted accounting
principles, and shall make the records available to the Assistant City Manager for
inspection and/or audit at mutually convenient times for a period of three (3) years
following completion of services.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be
performed pursuant to this Agreement shall commence within five (5) days from the
Effective Date of this Agreement. If Consultant fails to commence work in a timely
manner or fails to pursue work diligently to completion, City may, at its option, terminate
this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts or conditions beyond the reasonable control of the party
or parties. Such acts and conditions shall include, but not be limited to, acts of God, fire,
strikes, material shortages, compliance with laws or regulations the effect of which could
not reasonably have been foreseen, riots, and acts of war.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and shall
continue until satisfactory completion of all work contemplated in this Agreement, which
date shall be June 30, 2011, unless extended by written agreement signed by the parties.
4.2. Notice of Termination. City reserves and has the right and privilege to
cancel, suspend or abandon the execution of all or any part of the work contemplated in
this Agreement, with or without cause, at any time, by providing written notice to
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Consultant. The termination of this Agreement shall be deemed effective upon receipt of
the notice of termination. In the event of such termination, Consultant shall immediately
stop rendering services under this Agreement unless directed otherwise by City.
4.3. Compensation. In the event of termination, City shall pay Consultant for
reasonable costs incurred and professional services satisfactorily performed up to and
including the date of City's written notice of termination. Compensation for work in
progress shall be prorated according to the percentage of work completed as of the
effective date of termination, in accordance with the fees set forth in this Agreement. In
determining the professional services actually rendered up to the effective date of
termination, consideration shall be given to both completed work and work in progress,
and to complete and incomplete work products, whether delivered to City or in the
possession of Consultant.
4.4 Documents. In the event of termination of this Agreement, all documents
prepared by Consultant in its performance of this Agreement including, but not limited
to, finished or unfinished documents, data, studies, maps and reports, shall be delivered to
City within ten (10) days of delivery of termination notice to Consultant, at no cost to
City. Any use of uncompleted documents without specific written authorization from
Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain and
maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, and personal injury,
with a policy limit of not less than One Million Dollars
($1,000,000.00) combined single limit, per occurrence and
aggregate.
(b) Automobile liability for owned, hired, and non-owned vehicles, with
a policy limit of not less than One Million Dollars ($1,000,000.00)
combined single limit, per occurrence and aggregate.
(c) Workers' compensation insurance as required by the State of
California, including employer's liability coverage.
(d) Professional errors and omissions (E&O) liability insurance with
policy limits of not less than One Million Dollars ($1,000,000.00)
combined single limit, per occurrence and aggregate. Contractor
shall obtain and maintain the E&O liability insurance during the life
of this Agreement and for three years after completion of its work
under this Agreement.
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5.2. Endorsements. The comprehensive general liability insurance policy and
the automobile liability policy shall contain or be endorsed to contain the following
provisions:
(a) Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional
insureds with respect to the subject project and contract with City."
In addition, the comprehensive general liability, automobile liability, and
workers' compensation/employer's liability policies shall contain or be endorsed to
contain the following provisions:
(b) Notice: "This policy shall not terminate, nor shall it be cancelled, nor
the coverage reduced, until thirty (30) days after written notice is
given to City."
(c) Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance
provided by this policy."
(d) Waiver of subrogation: "Insurer waives any right of recovery it may
have against the City of San Bernardino or its elected and appointed
boards, officers, agents, or employees under this policy because of
payments Insurer makes for injury or damage arising out of the
named insured's operations or work done for the City of San
Bernardino."
5.3. Certificates of Insurance. Consultant shall provide to City certificates of
insurance showing the insurance coverages and required endorsements described above,
in a form and content approved by City, prior to performing any services under this
Agreement.
5.4. Non-limiting. Nothing in this Section shall be construed as limiting in any
way the indemnification provision contained in Section 6.8 of this Agreement, or the
extent to which Consultant may be held personally responsible for indemnifying City
against liability for damage to persons or property, notwithstanding any insurance that
may cover such damage.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to any matter referred to in this Agreement and
supersedes any and all prior writings and oral negotiations. This Agreement may be
modified only in a writing signed by the parties in interest at the time of the modification.
The terms of this Agreement shall prevail over any inconsistent provision in any other
document relating to this Agreement, including exhibits to this Agreement.
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6.2. Representatives. The Director of Community Development or his or her
designee shall be the representative of City for purposes of this Agreement and may issue
all consents, approvals, directives and agreements on behalf of City called for by this
Agreement, except as otherwise expressly provided in this Agreement. Consultant shall
designate a representative for purposes of this Agreement who shall be authorized to
issue all consents, approvals, directives and agreements on behalf of Consultant called for
by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly
with Consultant in the performance of this Agreement. Consultant shall designate a
Project Manager who shall represent it and be its agent in all consultations with City
during the term of this Agreement. Consultant's Project Manager shall attend and assist
in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other
communications concerning this Agreement or the work under it may be provided by
personal delivery, facsimile or mail and shall be addressed as set forth below.
Communications shall be deemed served or delivered: a) at the time of delivery if the
communication is sent by personal delivery; b) at the time of transmission if the
communication is sent by facsimile; and c) 48 hours after deposit in the United States
Mail as reflected by the official United States postmark if the communication is sent
through regular United States Mail.
IF TO CONSULTANT: IF TO CITY:
Timothy C. Kelly, CRE
Keyser Marston Associates, Inc. Director
55 Pacific Avenue Mall Community Development Department
San Francisco, CA 9411 300 North "D" Street
Tel: 415.398.3050 San Bernardino, CA 92418
Fax: 415.397.5065 Fax: 909-384-5080
Tel: 909-384-5057
6.5. Attorneys' Fees. In the event that litigation is brought by any party in
connection with this Agreement, the prevailing party shall be entitled to recover from the
opposing party all costs and expenses, including reasonable attorneys' fees, incurred by
the prevailing party in the exercise of any of its rights or remedies under this Agreement
or the enforcement of any of the terms, conditions, or provisions of this Agreement. 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 "attorneys' fees" for the purposes of
this paragraph.
6.6. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California without giving effect to that body of laws
pertaining to conflict of laws. The parties agree that the sole and exclusive venue for any
legal action to enforce or interpret this Agreement shall be a court of competent
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jurisdiction located in San Bernardino County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law
assign, transfer, sublet or encumber all or any part of Consultant's interest in this
Agreement without City's prior written consent. Any attempted assignment, transfer,
subletting or encumbrance shall be void and shall constitute a breach of this Agreement
and cause for termination of this Agreement. Regardless of City's consent, no subletting
or assignment shall release Consultant from Consultant's obligation to perform all other
obligations to be performed by Consultant under this Agreement for the term of this
Agreement.
6.8 Indemnification and Hold Harmless. Consultant shall protect, defend,
indemnify and hold harmless City and its elected and appointed officials, officers, and
employees from any and all claims, liabilities, expenses, including attorneys' fees,
damage to property, injury to or death of any person or persons, and all other damages of
any nature including, but not limited to, all civil claims or workers' compensation claims,
wholly or partly arising out of or in any way connected with the intentional or negligent
acts, errors or omissions of Consultant, its employees, agents or subcontractors in the
performance of this Agreement.
6.9. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall secure at its
expense, and be responsible for, the payment of any and all required payroll deductions
for Consultant and its officers, agents, and employees, including but not limited to
deductions for Income Tax, Social Security, State Disability Insurance Compensation,
and Unemployment Compensation. Consultant shall secure at its expense any business
licenses required for the performance of services to be performed under this Agreement.
6.10 Ownership of Documents. All findings, reports, documents, information
and data including, but not limited to, computer tapes or discs, files and tapes furnished
or prepared by Consultant or any of its subcontractors in the course of performance of
this Agreement shall be and remain the sole property of City. Consultant agrees that any
such documents or information shall not be made available to any individual or
organization without the prior written consent of City. Any use of such documents for
other projects not contemplated by this Agreement, and any use of incomplete
documents, shall be at the sole risk of City and without liability or legal exposure to
Consultant. City shall indemnify and hold harmless Consultant from all claims, damages,
losses, and expenses, including attorneys' fees, arising out of or resulting from City's use
of such documents for other projects not contemplated by this Agreement or use of
incomplete documents furnished by Consultant. Consultant shall deliver to City any
findings, reports, documents, information, and data in any form, including but not limited
to, computer tapes, discs, files, audio tapes, and any other items relating to the subject
project, as requested by City or its authorized representative, at no additional cost to City.
6.11 Public Records Act Disclosure. Consultant has been advised and is aware
that all reports, documents, information and data including, but not limited to, computer
tapes, discs, or files furnished or prepared by Consultant and provided to City may be
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subject to public disclosure as required by the California Public Records Act (California
Government Code section 6250 et. seq.). Documents or information that qualify as trade
secrets, as that term is defined in the California Government Code Section 6254.7, and
which Consultant informs City are trade secrets, may be exempt from disclosure. City
will endeavor to maintain as confidential all information obtained by it that is designated
as a trade secret. City shall not, in any way, be liable or responsible for the disclosure of
any trade secret including, without limitation, those records so designated if disclosure is
deemed to be required by law or by order of a court.
6.12. Responsibility for Errors. Consultant shall be responsible for its work and
results under this Agreement. Consultant, when requested, shall furnish clarification
and/or explanation as may be required by City's representative regarding any services
rendered under this Agreement at no additional cost to City. In the event that an error or
omission attributable wholly or partly to Consultant occurs, then Consultant shall, at no
cost to City, provide all necessary professional services necessary to rectify and correct
the error or omission to the sole satisfaction of City, and shall participate in any meeting
required to carry out the correction.
6.13. Prohibited Employment. Consultant shall not employ any regular
employee of City while this Agreement is in effect.
6.14. Order of Precedence. In the event of an inconsistency or conflict between
this Agreement and any of the attached Exhibits or Attachments, the terms set forth in
this Agreement shall prevail.
6.15. Costs. Each party shall bear its own costs and fees incurred in the
preparation and negotiation of this Agreement and in the performance of its obligations
under this Agreement except as expressly provided in this Agreement.
6.16. No Third Party Beneficiary Rights. This Agreement is entered into for the
sole benefit of City and Consultant. No other parties are intended to be direct or
incidental beneficiaries of this Agreement, and no third party shall have any right in,
under or to this Agreement.
6.17. Headings. Paragraph and subparagraph headings contained in this
Agreement are included solely for convenience and are not intended to modify, explain,
or be a full or accurate description of the content of this Agreement. Headings shall not
in any way affect the meaning or interpretation of this Agreement.
6.18. Construction. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises in construing this Agreement, this Agreement shall be construed as if
drafted jointly by the parties and in accordance with its fair meaning. There shall be no
presumption or burden of proof favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
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6.19 Amendments. Only a writing executed by the parties to this Agreement or
their respective successors and assigns may amend this Agreement.
6.20. Waiver. The delay or failure of either party at any time to require
performance or compliance by the other of any of its obligations or agreements shall in
no way be deemed a waiver of the right to require performance or compliance. No
waiver of any provision of this Agreement shall be effective unless in writing and signed
by a duly authorized representative of the party against whom enforcement of a waiver is
sought. The waiver of any right or remedy that accrues to a party upon the occurrence of
an event shall not be deemed a waiver of any right or remedy that accrues to that party
upon the occurrence of any other event, nor shall any waiver constitute a continuing
waiver.
6.21. Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be unenforceable in any circumstance, that determination
shall not affect the validity or enforceability of the remaining terms and provisions of this
Agreement or of the unenforceable provision in any other circumstance.
6.22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. All counterparts shall be
construed together and shall constitute one agreement.
6.23. Corporate Authority. The persons executing this Agreement warrant that
they are duly authorized to execute it on behalf of the parties and that their execution of
this Agreement formally binds the parties to its provisions.
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AGREEMENT FOR PROFESSIONAL SERVICES
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
and through their respective authorized officers, as of the date first above written.
CITY OF SAN BERNARDINO, KEYSER MARSTON,
A Municipal Corporation, ASSOCIATES, INC.
A California Corporation,
By
Charles McNeely, City Manager Signature
Name and Title
Approved as to form:
James F. Penman,
City Attorney
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By
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AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this day of , 2010
("Effective Date"), by and between the CITY OF SAN BERNARDINO, a charter city
("City"), and KEYSER MARSTON ASSOCIATES, INC. ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to have Consultant provide professional planning and
real estate services; and
B. WHEREAS, Consultant represents and warrants that it has the specialized
expertise and experience required to provide these services and holds all necessary
licenses to practice and perform the professional services contemplated in this
Agreement; and
C. WHEREAS, City and Consultant desire to contract for the performance of the
services described below and as attached, and desire to set forth their rights, duties and
liabilities concerning the performance of the services; and
D. WHEREAS, no official or employee of the City has a financial interest, within the
provisions of California Government Code sections 1090-1092, in the subject matter of
this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained in this Agreement, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Work. Consultant shall provide professional planning and real
estate services in accordance with the Scope of Work and Cost Estimate proposed by
Consultant, attached to this Agreement as Attachment 1 and made a part of this
Agreement by reference. It is agreed that Consultant shall complete its duties in
accordance with applicable State law and other requirements as acknowledged in the
attached Scope of Work.
1.2. Professional Practices. All professional and contractual services to be
provided by Consultant pursuant to this Agreement shall be provided by personnel
experienced in their respective fields and in a manner consistent with the standards of
care, diligence and skill ordinarily exercised by professional consultants in similar fields
and circumstances in accordance with sound professional practices. Consultant also
warrants that it is familiar with all laws that may affect its performance of this Agreement
and shall advise City of any changes in any laws that may affect Consultant's
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performance of this Agreement. Consultant further warrants that it and its personnel have
no professional, personal, or other affiliation with or connection to owners of property or
business entities in the City of San Bernardino that could interfere with Consultant's
performance of its obligation under this Agreement.
1.3. Warranty. Consultant warrants that it shall perform the services required
by this Agreement in compliance with all applicable Federal and California employment
laws including, but not limited to, those laws related to minimum hours and wages;
occupational health and safety; fair employment and employment practices; workers'
compensation insurance and safety in employment; and all other Federal, State and local
laws and ordinances applicable to the services required under this Agreement. Consultant
shall defend, indemnify and hold harmless City from and against all claims, demands,
payments, suits, actions, proceedings, and judgments of every nature and description
including attorneys' fees and costs, presented, brought, or recovered against City for, or
on account of any liability under any of the above-mentioned laws, which may arise out
of Consultant's performance under this Agreement.
1.4. Non-discrimination. In performing services pursuant to this Agreement,
Consultant shall not engage in, nor permit its agents to engage in, discrimination in
employment of persons because of their race, religion, color, national origin, ancestry,
age, physical handicap, medical condition, marital status, sexual gender or sexual
orientation, or on any other basis prohibited by law, except as permitted pursuant to
Section 12940 of the California Government Code. Violation of this provision may result
in the imposition of penalties referred to in California Labor Code section 1735.
1.5 Non-Exclusive Agreement. Consultant acknowledges that City may enter
into agreements to have other consultants or contractors perform, or may have City's own
employees perform, services that are similar to the services to be performed under this
Agreement.
1.6. Delegation and Assignment. This is a personal service agreement, and the
duties to be performed by Consultant pursuant to this Agreement shall not be delegated or
assigned to any other person or entity without the prior written consent of City.
1.7. Business Registration. Consultant shall obtain and maintain a valid City
Business Registration Certificate during the term of this Agreement.
1.8. Duty of Loyalty/Conflict of Interest. Consultant understands and agrees
that as the City's consultant, Consultant shall be subject to a fiduciary duty and a duty of
loyalty to the City in performing Consultant's obligations under this Agreement.
Consultant, in performing its obligations under this Agreement, is governed by
California's conflict of interest laws, Government Code section 87100 et seq., and Title 2
of the California Code of Regulations section 18700 et seq.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Over the term of this Agreement, Consultant shall be
2
compensated for its services according to the Cost Estimate contained in Attachment 1,
for a total amount not to exceed $50,000.
2.2. Additional Services. Consultant shall not receive compensation for any
services other than the services specified in this Agreement unless City, prior to
Consultant performing the additional services, approves the services in writing. It is
specifically understood that oral requests and/or approvals of additional services or
compensation are unenforceable.
2.3. Method of Billing. Consultant shall submit invoices to the Assistant City
Manager for approval on a monthly basis. Each invoice shall describe in detail the
services performed, the time spent to perform said services and the amounts charged for
all services completed to the sole satisfaction of City during the period covered by the
invoice. City shall pay Consultant's invoice within forty-five (45) days from the date City
receives the invoice. Any additional services approved and performed pursuant to this
Agreement shall be designated on the invoice as "Additional Services" and the invoice
shall identify the number of the authorized change order, where applicable.
2.4. Records and Audits. Consultant shall maintain records of all services it
performs pursuant to this Agreement in accordance with generally accepted accounting
principles, and shall make the records available to the Assistant City Manager for
inspection and/or audit at mutually convenient times for a period of three (3) years
following completion of services.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be
performed pursuant to this Agreement shall commence within five (5) days from the
Effective Date of this Agreement. If Consultant fails to commence work in a timely
manner or fails to pursue work diligently to completion, City may, at its option, terminate
this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts or conditions beyond the reasonable control of the party
or parties. Such acts and conditions shall include, but not be limited to, acts of God, fire,
strikes, material shortages, compliance with laws or regulations the effect of which could
not reasonably have been foreseen, riots, and acts of war.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and shall
continue until satisfactory completion of all work contemplated in this Agreement, which
date shall be June 30, 2011, unless extended by written agreement signed by the parties.
4.2. Notice of Termination. City reserves and has the right and privilege to
cancel, suspend or abandon the execution of all or any part of the work contemplated in
this Agreement, with or without cause, at any time, by providing written notice to
3
Consultant. The termination of this Agreement shall be deemed effective upon receipt of
the notice of termination. In the event of such termination, Consultant shall immediately
stop rendering services under this Agreement unless directed otherwise by City.
4.3. Compensation. In the event of termination, City shall pay Consultant for
reasonable costs incurred and professional services satisfactorily performed up to and
including the date of City's written notice of termination. Compensation for work in
progress shall be prorated according to the percentage of work completed as of the
effective date of termination, in accordance with the fees set forth in this Agreement. In
determining the professional services actually rendered up to the effective date of
termination, consideration shall be given to both completed work and work in progress,
and to complete and incomplete work products, whether delivered to City or in the
possession of Consultant.
4.4 Documents. In the event of termination of this Agreement, all documents
prepared by Consultant in its performance of this Agreement including, but not limited
to, finished or unfinished documents, data, studies, maps and reports, shall be delivered to
City within ten (10) days of delivery of termination notice to Consultant, at no cost to
City. Any use of uncompleted documents without specific written authorization from
Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain and
maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, and personal injury,
with a policy limit of not less than One Million Dollars
($1,000,000.00) combined single limit, per occurrence and
aggregate.
(b) Automobile liability for owned, hired, and non-owned vehicles, with
a policy limit of not less than One Million Dollars ($1,000,000.00)
combined single limit, per occurrence and aggregate.
(c) Workers' compensation insurance as required by the State of
California, including employer's liability coverage.
(d) Professional errors and omissions (E&O) liability insurance with
policy limits of not less than One Million Dollars ($1,000,000.00)
combined single limit, per occurrence and aggregate. Contractor
shall obtain and maintain the E&O liability insurance during the life
of this Agreement and for three years after completion of its work
under this Agreement.
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5.2. Endorsements. The comprehensive general liability insurance policy and
the automobile liability policy shall contain or be endorsed to contain the following
provisions:
(a) Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional
insureds with respect to the subject project and contract with City."
In addition, the comprehensive general liability, automobile liability, and
workers' compensation/employer's liability policies shall contain or be endorsed to
contain the following provisions:
(b) Notice: "This policy shall not terminate, nor shall it be cancelled, nor
the coverage reduced, until thirty (30) days after written notice is
given to City."
(c) Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance
provided by this policy."
(d) Waiver of subrogation: "Insurer waives any right of recovery it may
have against the City of San Bernardino or its elected and appointed
boards, officers, agents, or employees under this policy because of
payments Insurer makes for injury or damage arising out of the
named insured's operations or work done for the City of San
Bernardino."
5.3. Certificates of Insurance. Consultant shall provide to City certificates of
insurance showing the insurance coverages and required endorsements described above,
in a form and content approved by City, prior to performing any services under this
Agreement.
5.4. Non-limiting. Nothing in this Section shall be construed as limiting in any
way the indemnification provision contained in Section 6.8 of this Agreement, or the
extent to which Consultant may be held personally responsible for indemnifying City
against liability for damage to persons or property, notwithstanding any insurance that
may cover such damage.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to any matter referred to in this Agreement and
supersedes any and all prior writings and oral negotiations. This Agreement may be
modified only in a writing signed by the parties in interest at the time of the modification.
The terms of this Agreement shall prevail over any inconsistent provision in any other
document relating to this Agreement, including exhibits to this Agreement.
5
6.2. Representatives. The Director of Community Development or his or her
designee shall be the representative of City for purposes of this Agreement and may issue
all consents, approvals, directives and agreements on behalf of City called for by this
Agreement, except as otherwise expressly provided in this Agreement. Consultant shall
designate a representative for purposes of this Agreement who shall be authorized to
issue all consents, approvals, directives and agreements on behalf of Consultant called for
by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly
with Consultant in the performance of this Agreement. Consultant shall designate a
Project Manager who shall represent it and be its agent in all consultations with City
during the term of this Agreement. Consultant's Project Manager shall attend and assist
in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other
communications concerning this Agreement or the work under it may be provided by
personal delivery, facsimile or mail and shall be addressed as set forth below.
Communications shall be deemed served or delivered: a) at the time of delivery if the
communication is sent by personal delivery; b) at the time of transmission if the
communication is sent by facsimile; and c) 48 hours after deposit in the United States
Mail as reflected by the official United States postmark if the communication is sent
through regular United States Mail.
IF TO CONSULTANT: IF TO CITY:
Timothy C. Kelly, CRE
Keyser Marston Associates, Inc. Director
55 Pacific Avenue Mall Community Development Department
San Francisco, CA 9411 300 North "D" Street
Tel: 415.398.3050 San Bernardino, CA 92418
Fax: 415.397.5065 Fax: 909-384-5080
Tel: 909-384-5057
6.5. Attorneys' Fees. In the event that litigation is brought by any party in
connection with this Agreement, the prevailing party shall be entitled to recover from the
opposing party all costs and expenses, including reasonable attorneys' fees, incurred by
the prevailing party in the exercise of any of its rights or remedies under this Agreement
or the enforcement of any of the terms, conditions, or provisions of this Agreement. 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 "attorneys' fees" for the purposes of
this paragraph.
6.6. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California without giving effect to that body of laws
pertaining to conflict of laws. The parties agree that the sole and exclusive venue for any
legal action to enforce or interpret this Agreement shall be a court of competent
6
jurisdiction located in San Bernardino County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law
assign, transfer, sublet or encumber all or any part of Consultant's interest in this
Agreement without City's prior written consent. Any attempted assignment, transfer,
subletting or encumbrance shall be void and shall constitute a breach of this Agreement
and cause for termination of this Agreement. Regardless of City's consent, no subletting
or assignment shall release Consultant from Consultant's obligation to perform all other
obligations to be performed by Consultant under this Agreement for the term of this
Agreement.
6.8 Indemnification and Hold Harmless. Consultant shall protect, defend,
indemnify and hold harmless City and its elected and appointed officials, officers, and
employees from any and all claims, liabilities, expenses, including attorneys' fees,
damage to property, injury to or death of any person or persons, and all other damages of
any nature including, but not limited to, all civil claims or workers' compensation claims,
wholly or partly arising out of or in any way connected with the intentional or negligent
acts, errors or omissions of Consultant, its employees, agents or subcontractors in the
performance of this Agreement.
6.9. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall secure at its
expense, and be responsible for, the payment of any and all required payroll deductions
for Consultant and its officers, agents, and employees, including but not limited to
deductions for Income Tax, Social Security, State Disability Insurance Compensation,
and Unemployment Compensation. Consultant shall secure at its expense any business
licenses required for the performance of services to be performed under this Agreement.
6.10 Ownership of Documents. All findings, reports, documents, information
and data including, but not limited to, computer tapes or discs, files and tapes furnished
or prepared by Consultant or any of its subcontractors in the course of performance of
this Agreement shall be and remain the sole property of City. Consultant agrees that any
such documents or information shall not be made available to any individual or
organization without the prior written consent of City. Any use of such documents for
other projects not contemplated by this Agreement, and any use of incomplete
documents, shall be at the sole risk of City and without liability or legal exposure to
Consultant. City shall indemnify and hold harmless Consultant from all claims, damages,
losses, and expenses, including attorneys' fees, arising out of or resulting from City's use
of such documents for other projects not contemplated by this Agreement or use of
incomplete documents furnished by Consultant. Consultant shall deliver to City any
findings, reports, documents, information, and data in any form, including but not limited
to, computer tapes, discs, files, audio tapes, and any other items relating to the subject
project, as requested by City or its authorized representative, at no additional cost to City.
6.11 Public Records Act Disclosure. Consultant has been advised and is aware
that all reports, documents, information and data including, but not limited to, computer
tapes, discs, or files furnished or prepared by Consultant and provided to City may be
7
subject to public disclosure as required by the California Public Records Act (California
Government Code section 6250 et. seq.). Documents or information that qualify as trade
secrets, as that term is defined in the California Government Code Section 6254.7, and
which Consultant informs City are trade secrets, may be exempt from disclosure. City
will endeavor to maintain as confidential all information obtained by it that is designated
as a trade secret. City shall not, in any way, be liable or responsible for the disclosure of
any trade secret including, without limitation, those records so designated if disclosure is
deemed to be required by law or by order of a court.
6.12. Responsibility for Errors. Consultant shall be responsible for its work and
results under this Agreement. Consultant, when requested, shall furnish clarification
and/or explanation as may be required by City's representative regarding any services
rendered under this Agreement at no additional cost to City. In the event that an error or
omission attributable wholly or partly to Consultant occurs, then Consultant shall, at no
cost to City, provide all necessary professional services necessary to rectify and correct
the error or omission to the sole satisfaction of City, and shall participate in any meeting
required to carry out the correction.
6.13. Prohibited Employment. Consultant shall not employ any regular
employee of City while this Agreement is in effect.
6.14. Order of Precedence. In the event of an inconsistency or conflict between
this Agreement and any of the attached Exhibits or Attachments, the terms set forth in
this Agreement shall prevail.
6.15. Costs. Each party shall bear its own costs and fees incurred in the
preparation and negotiation of this Agreement and in the performance of its obligations
under this Agreement except as expressly provided in this Agreement.
6.16. No Third Party Beneficiary Rights. This Agreement is entered into for the
sole benefit of City and Consultant. No other parties are intended to be direct or
incidental beneficiaries of this Agreement, and no third party shall have any right in,
under or to this Agreement.
6.17. Headings. Paragraph and subparagraph headings contained in this
Agreement are included solely for convenience and are not intended to modify, explain,
or be a full or accurate description of the content of this Agreement. Headings shall not
in any way affect the meaning or interpretation of this Agreement.
6.18. Construction. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises in construing this Agreement, this Agreement shall be construed as if
drafted jointly by the parties and in accordance with its fair meaning. There shall be no
presumption or burden of proof favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
8
6.19 Amendments. Only a writing executed by the parties to this Agreement or
their respective successors and assigns may amend this Agreement.
6.20. Waiver. The delay or failure of either party at any time to require
performance or compliance by the other of any of its obligations or agreements shall in
no way be deemed a waiver of the right to require performance or compliance. No
waiver of any provision of this Agreement shall be effective unless in writing and signed
by a duly authorized representative of the party against whom enforcement of a waiver is
sought. The waiver of any right or remedy that accrues to a party upon the occurrence of
an event shall not be deemed a waiver of any right or remedy that accrues to that party
upon the occurrence of any other event, nor shall any waiver constitute a continuing
waiver.
6.21. Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be unenforceable in any circumstance, that determination
shall not affect the validity or enforceability of the remaining terms and provisions of this
Agreement or of the unenforceable provision in any other circumstance.
6.22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. All counterparts shall be
construed together and shall constitute one agreement.
6.23. Corporate Authority. The persons executing this Agreement warrant that
they are duly authorized to execute it on behalf of the parties and that their execution of
this Agreement formally binds the parties to its provisions.
///
///
9
AGREEMENT FOR PROFESSIONAL SERVICES
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
and through their respective authorized officers, as of the date first above written.
CITY OF SAN BERNARDINO, KEYSER MARSTON,
A Municipal Corporation, ASSOCIATES, INC.
A California Corporation,
By
Charles McNeely, City Manager Signature
Name and Title
Approved as to form:
James F. Penman,
City Attorney
By G! .
10
a c
4 1 1\I+„I Z N I N I'U l i l I t I'R I\',\I I I I ,t I\I \I I I,I\'I Ii,I'\il '.'I
September 30, 2010
Ms. Debbie Kurita
Assistant City Manager
it , ... City of San Bernardino
33 N. D Street, 6th Floor
San Bernardino, CA 92418
ti Re: Real Estate Economic Consulting Service
I Dear Debbie:
Keyser Marston Associates, Inc. (KMA) is pleased to submit our proposal to provide
:...,, professional services to the City of San Bernardino. As we understand it, staff is
pursuing a comprehensive range of revitalization endeavors. KMA is the West Coast's
premier advisor in public-private transactions, land uses analysis, fiscal and economic
impact analysis, and redevelopment plan adoptions and financing. We have assisted
over 600 public and private sector clients, including many largest cities and agencies
throughout the state.
4.
The following proposal contains advisory services for:
Economic/Feasibility Analysis
Provide advisory services on economic and feasibility analysis. Such services could
include (as needed):
1. Market feasibility assessment for both commercial and residential land uses
2. Work with planning and design professionals regarding development options
3. Pro forma and financial analysis of potential project
4. Financial role of the Agency
5. Economic benefits generated by proposed project
1'l P1( II I( •\\I NVV! ,11111 SAN I II.\N( IS( (),( Al I101:NIA')41 I I e I'IIONI:41i {95 ;Oil) I:\\:41. i') l)(,)
900b-1091.doc;jf
\■\\\■'.I:f 1 ,I k.\4AIls I l\N.c(t\\ 99900
Ms. Debbie Kurita September 30, 2010
City of San Bernardino Page 2
Implementation Services
Provide advisory services on implementation issues. Such services could include (as
needed):
1. Structuring options for possible public private partnerships
2. Determining a fair reuse value related to conveyance of city and agency land
3. Preparing property tax increment projections for redevelopment financing
4. Strategic implementation strategies
5. Meeting with prospective tenants and developers
6. Presentation to city staff, City Council, and Agency Board
7. Assisting in preparing documents required under the Community Redevelopment
Law
Fiscal and Economic Impact Analysis
Prepare assessment of project related impacts including:
1. Job creation
2. Fiscal revenues to the city and agency
3. Economic benefits generated by proposed project
At this time, we propose to proceed on a time and materials basis at the direction of
staff. Our hourly rates are attached.
Please let us know if we can provide you with more detailed information. We look
forward to working with you.
Sincerely,
KEYSER MARSTON ASSOCIATES, INC.
r\ I
Titnothy C. Kelly
900b-1091.doc;jf
99900
KEYSER MARSTON ASSOCIATES, INC,
PUBLIC SECTOR HOURLY RATES
2008/2009
A. JERRY KEYSER* $280.00
MANAGING PRINCIPALS* $280.00
SENIOR PRINCIPALS* $270.00
PRINCIPALS' $250.00
MANAGERS* 3225.00
SENIOR ASSOCIATES $187.50
ASSOCIATES $167.50
SENIOR ANALYSTS $150.00
ANALYSTS $130.00
TECHNICAL STAFF $95.00
ADMINISTRATIVE STAFF $80.00
Directly related Job expenses not included in the above rates are: auto mileage, air fares,
hotels and motels, meals, car rentals, taxies, telephone calls, delivery, electronic data pro-
c:;ssing, graphics and printing. Directly related job expenses will be billed at 110% of cost.
'liras fur staff time and a>:I:ens s incu:rdd luting the period ..ill be.
r,irh/ 2Uj :Lays .cf invoice date.
' Fu!cs for nd vidca's in these categores ill be :nc,eas:d by 5'J fcr time sp•:nt in ;cut testisn.,:n