HomeMy WebLinkAboutCDC/2009-52
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RESOLUTION NO. CDC/2009-52
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING A
PROFESSIONAL SERVICES AGREEMENT WITH SAMUEL K. HUGHES
AND AUTHORIZING EXECUTION THEREOF, PROVIDING FOR
PROFESSIONAL ASSET MANAGEMENT AND PROGRAM
DEVELOPMENT CONSULTANT SERVICES ON BEHALF OF THE
NEIGHBORHOOD STABILIZATION PROGRAM
WHEREAS, in Fiscal Year 2008-2009, the City of San Bernardino, California (the "City"),
9 IS entitled to receive $8,408,558 from the United States Department of Housing and Urban
10 Development ("HUD") uoder the Neighborhood Stabilization Program ("NSP") for the purpose of
11 redeveloping abandoned and foreclosed homes and residential properties as authorized under Title
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Ill, Division B of the Housing and Economic Recovery Act ("HERA") of 2008; and
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14 WHEREAS, the NSP is subject to certain statutory and regulatory provisions governing the
15 Community Development Block Grant ("CDBG") program as necessitated by HERA; and
16 WHEREAS, the City, as a direct recipient of CDBO Fuods has submitted to HUD and HUD
17 has approved a Consolidated Plan for Fiscal Years 2005-2010 and a Consolidated Annual Action
18 Plan for Fiscal Year 2008-2009 (the "Action Plan"); and
19 WHEREAS, the City, as required by the NSP, prepared and submitted a substantial
20 amendment to the Annual Action Plan to HUD on November 19, 2008, in accordance with the
21 consolidated plan procedures for a substantial amendment under the annual CDBO program; and
22 WHEREAS, the City's substantial amendment to the Annual Action Plan called for the
23 provision of the following NSP components: (I) down payment assistance for eligible home buyers;
24 (2) rental housing opportunities for households at or below 50% of the Area Median Income; (3)
25 acquisition, demolition for future redevelopment; and (4) acquisition rehabilitation and resale of
26 single-family properties; and
27 WHEREAS, a certain need has arisen for the addition of professional-level staff to develop
28 each of the individual NSP components; and
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1 WHEREAS, the skills, education, and previous work experience of Samuel K. Hughes
2 qualifies him to provide such professional-level services; and
3 WHEREAS, the City wishes to redevelop abandoned and foreclosed homes and residential
4 properties to address the significant costs that foreclosure activity imposes on local municipalities
5 and neighborhoods; and
6 WHEREAS, the Community Development Commission of the City of San Bernardino
7 ("Commission") desires to enter into an agreement for professional services ("Agreement") with
8 Samuel K. Hughes, who will provide professional asset management and program development
9 consulting services to the Redevelopment Agency of the City of San Bernardino ("Agency") in the
10 furtherance ofNSP activities.
11 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
12 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
13 FOLLOWS:
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Section 1.
The Commission hereby approves and authorizes the Interim Executive
15 Director of the Agency to execute an Agreement with Samuel K. Hughes, Asset Manager and
16 Program Development Consultant on behalf of the Agency together with such technical and
17 conforming changes as may be recommended by the Interim Executive Director of the Agency and
18 approved by the Agency Counsel.
This Resolution shall take effect from and after its date of adoption by this
19 Section 2.
20 Commission.
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CDC/2009-52
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING A
PROFESSIONAL SERVICES AGREEMENT WITH SAMUEL K. HUGHES,
AND AUTHORIZING EXECUTION THEREOF, PROVIDING FOR
PROFESSIONAL ASSET MANAGEMENT AND PROGRAM
DEVELOPMENT CONSULTANT SERVICES ON BEHALF OF THE
NEIGHBORHOOD STABILIZATION PROGRAM
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted hy the Community
Development Commission of the City of San Bernardino at a joint regular
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meeting
September, 2009, by the following vote to wit:
Nays
Abstain
Absent
x
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Secretary
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19 The foregoing Resolution is hereby approved this q>nt day of September
,2009.
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Patrie J. Morris, C' n
unity Development Commission
of the City of San Bernardino
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Approved as to Form:
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Agency 0 sel
26 By:
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CDC(2009-52
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement for Professional Services (this "Agreement ") is made and entered into
on this 8th day of September 2009, by and between the Redevelopment Agency of the City of San
Bernardino, a public body, corporate and politic (hereinafter referred to as the "Agency") and Samuel
K. Hughes, Professional Asset Management and Program Development Consultant, (hereinafter
referred to as the "Consultant").
WITNESSETH
WHEREAS, the Consultant has over twelve (12) years of experience in developing and
financing various housing programs and projects with various for-profit and governmental
organizations in California; and
WHEREAS, the Agency and the Consultant desire to enter into this Agreement to
utilize the Consultant's services for professional asset management and program development
activities related to the Neighborhood Stabilization Program ("NSP") as described in Exhibit "A" (the
"Scope of Services") attached hereto and incorporated herein by reference and the Consultant accepts
responsibilities as described herein.
NOW, THEREFORE, in consideration of mutual covenants herein set forth and the
mutual benefits to be derived there from, the parties agree to enter into this Agreement as follows:
1. TERMS.
(a) This Agreement shall commence as of the day and year first above written and shall remain in
full force and effect until such time as either party provides a written thirty (30) day termination notice,
and shall be subject to appropriate funding within the Agency's annual budget; provided, however, that
the term of this Agreement shall not exceed a duration through and including June 30, 2010, unless
otherwise amended in writing by the parties.
(b) The Consultant shall perform work as requested and as needed by the Agency and promptly
provide the finished product to the Agency.
2. CONSULTANT RESPONSIBILITIES.
Upon the request of the Agency, the Consultant shall perform each element as needed of the work
described in the Scope of Services, Exhibit "A." The Consultant commits the principal personnel
listed below to the Scope of Services for the duration of this Agreement:
Consultant: Samuel Hughes
3. AGENCY RESPONSIBILITIES.
The Consultant shall provide all supplies and materials necessary to accomplish the work in the Scope
of Services, Exhibit "A". The Agency shall provide, in a reasonable timely fashion, the Consultant
with any documentation, records, reports, statistics or other data or information pertinent to the Scope
of Services, which are reasonably available to the Agency, and necessary to complete assignments.
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4. CONFIDENTIALITY OF REPORTS.
The Consultant shall keep confidential all reports, information and data received, prepared or
assembled pursuant to performance hereunder. Such information shall not be made available to any
person, news release, firm, corporation, or entity without prior written consent of the Agency's Interim
Executive Director or designee.
5. COMPENSATION.
The maximum compensation for the Consultant's services, including Consultant's costs and expenses,
compensation shall be equal to Forty Eight Dollars ($48) per hour with a maximum not to exceed the
figure of $96,000 in anyone fiscal year. Reimbursement for travel, including travel mileage at the
current Internal Revenue Service rate, and reimbursements for business luncheon meetings shall be
pre-approved by the Interim Executive Director, in writing on a case-by-case basis, and shall be
submitted for reimbursement with the Consultant's monthly invoice as supported by documentation in
accordance with the Agency's policies and procedures. During the term of this Agreement, the
Agency shall pay the Consultant on a bi-monthly basis (every two weeks) upon receipt of an itemized
invoice from the Consultant, normally within two (2) weeks of receipt of said invoice. Said
compensation shall be considered full and complete reimbursement for all of the Consultant's costs
associated with the services provided hereunder.
6. USE OF FUNDS.
The funds paid to the Consultant shall be used solely for the purpose as set forth in this Agreement and
in accordance with the Scope of Services. The Consultant shall remain in compliance with all state,
federal and local laws prior to the receipt of any reimbursement hereunder.
7.
NONDISCRIMINATION;
PERFORMANCE.
MONITORING
AND
REPORTING
WORK
The Consultant shall not discriminate because of race, color, national ongm, creed, religion, sex,
marital status or physical handicap. At the request of the Interim Executive Director of the Agency, or
designee, the Consultant shall provide reports or other work products as required, no later than on
agreed upon dates of completion. Failure to provide such work products may prevent payment of the
Consultant's requests for compensation, and may justify the temporary withholding as provided herein.
The Agency reserves the right to waive such breach, without prejudice to any other of its rights
hereunder, upon a finding by the Interim Executive Director of the Agency or designee that such
failure was due to extraordinary circumstances and that such breach has been timely cured without
prejudice to the Agency.
8. CONFLICT OF INTEREST.
The Consultant shall maintain a code or standard of conduct. The Consultant shall neither solicit nor
accept gratuities, favors, or anything of monetary value for work completed under the Scope of
Services. To the extent permissible by state laws, rules and regulations, the standards adopted by the
Consultant shall provide for penalties, sanctions, or other disciplinary actions to be applied for
violations of such standards by the Consultant.
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9. INDEPENDENT CONTRACTOR.
The Parties intend that the relationship between them created under the Agreement is that of an
independent contractor only. The Consultant shall perform each element of the work set forth in the
Scope of Services as an independent contractor and shall not be considered an employee of the
Agency. This Agreement is by and between the Consultant and the Agency, and is not intended, and
shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture,
or association, between the Agency and the Consultant. The Agency is interested only in the results
obtained under the Agreement; unless otherwise indicated and under unusual circumstances, the
manner and means of performing the services are subject to the Consultant's sole control. The
Consultant shall have no right or authority to bind or commit the Agency, unless specifically
authorized in writing by the Interim Executive Director of the Agency in each specific instance. The
Consultant shall not be entitled to any benefits, including, without limitation, worker's compensation,
disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at his
expense, and in his name, disability, worker's compensation or other insurance.
The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all federal and
state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred
as a result of the compensation set forth herein. The Consultant agrees further to provide the Agency
with proof of payment upon reasonable demand. The Consultant holds the Agency harmless from and
against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries
suffered by the Agency (including, but not limited to, attorney fees and court costs, whether or not
litigation is commenced) arising out of the failure of the Consultant to comply with this provision.
Further, this right of indemnification shall apply to any and all claims, demands, losses, costs, fees,
liabilities, taxes, penalties, damages and injuries suffered by the Agency as a result of the classification
of the Consultant as independent contractor under this Agreement.
The Parties understand and agree that the Consultant has clients other than the Agency. The Agency
further agrees to allow the Consultant to pursue clients as necessary to the betterment of the
Consultant's business. The Consultant's separate business engagements include, but are not limited to,
real estate advisory and brokerage services, as well as other business formation, acquisition and
expansion activities.
10. RECORDS.
The Consultant shall keep full and accurate records of all consulting work performed under this
Agreement. All records, content, sketches, drawings, prints, computations, charts, reports and other
documentation made in the course of the consulting work performed hereunder, or in anticipation of
the consulting work to be performed in regard to this Agreement, shall at all times be and remain the
sole property of the Agency and the Consultant shall turn over to the Agency all copies of the Work
Records within seven (7) calendar days after a written request by Agency.
11. BUSINESS LICENSES/TIN.
Consultant shall obtain a San Bernardino business license and provide the Agency with evidence that
his license has been obtained on or before September 8, 2009. The Consultant agrees to keep said
license current and valid throughout the term of this Agreement.
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The Consultant shall obtain a state and federal taxpayer identification number and shall provide
evidence to the Agency that this number has been obtained.
12. RIGHT TO OBTAIN OTHER CONTRACTUAL ARRANGEMENTS.
The Consultant at any time has the right to: (a) accept employment or other association with any
person, redevelopment agency, city or company in the United States of America or any Territory
thereof, or through media reasonably accessible by persons in the United States of America or any
Territory thereof, or (b) in the United States of America or any Territory thereof, or through media
reasonably accessible by Persons in the United States of America or any Territory thereof, engage in
activities, projects or services similar in nature or competitive with those of the Agency, limited only
by the confidential information described in Section 4, or (c) become employed by, associate with or
otherwise engage any entity anywhere in the world. The Agency acknowledges that the provisions of
this Section 12 are reasonable in light of the legitimate business needs of the Agency.
13. SUCCESSOR AND ASSIGNMENT.
The services as contained herein are to be rendered by the Consultant whose name is as appears first
above written and said Consultant shall not assign nor transfer any interest in this Agreement without
the prior written consent of the Agency.
14. INDEMNIFICATION.
The Consultant agrees to indemnify, defend and hold harmless the Agency and the City of San
Bernardino ("City"), its agents, officers and employees from and against all liability, expense,
including defense costs and legal fees, and claims for damages of any nature whatsoever, including,
but not limited to, bodily injury, death, personal injury or property damage arising out of this
Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or
omissions connected with the services performed by or on behalf of the Consultant pursuant to this
Agreement and only for which proceeds from valid collectible insurance is available to Agent or City.
The costs, salary, and expenses of the Agency's legal counsel in enforcing this Agreement on behalf of
the Agency shall be considered as "legal fees" for the purpose of this Section The Consultant agrees to
obtain a policy of insurance in the minimum amount of$500,000.00 (five hundred thousand dollars) to
cover any and all such claims. The Consultant shall provide the Agency with evidence that the
necessary liability insurance has been obtained, and that the Agency has been named as an additional
insured on said policy by September 8, 2009.
15. MODIFICATION.
This Agreement may be supplemented, amended, or modified only by the mutual agreement of the
parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in
writing and signed by both parties.
16. CHOICE OF LAW.
This Agreement, and any dispute arising from the relationship between the parties to this Agreement,
shall be governed by California law, excluding any laws that direct the application of another
jurisdiction's laws.
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17. COMPLIANCE WITH LAWS.
The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as
they pertain to the performance of this Agreement.
18. SEVERABILITY.
In the event that any provision herein contained is held to be invalid, void or illegal by any court of
competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and
shall in no way affect, impair, or invalidate any other provision contained herein. If any such provision
shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent
of the scope or breadth permitted by law.
19. INTERPRETATION.
No provision of this Agreement is to be interpreted for or against either party because that party or that
party's legal representative drafted such provision, but this Agreement is to be construed as if it were
drafted by both parties hereto.
20. CONTRACT EV ALVA TION AND REVIEW.
The ongoing assessment and monitoring of this Agreement IS the responsibility of the Interim
Executive Director or designee.
21. ENTIRE AGREEMENT.
This Agreement supersedes any and all other agreements, either oral or in writing, between the parties
hereto with respect to the retention of the Consultant by the Agency and contains all the covenants and
agreements between the parties with respect to such retention.
22. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the
provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving
the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, shall be
deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any
waiver constitute a continuing waiver unless the writing so specifies.
23. ARBITRATION.
With the exception of matters in which equitable or injunctive relief is sought or required, the parties
hereto shall submit all disputes relating to this Agreement, whether sounding in contract, tort, or both,
to binding arbitration, in accordance with California Code of Civil Procedure Sections 1280 through
1294.2. Either party may enforce the award of the arbitrator under Section 1285 of the Code of Civil
Procedure. The parties understand that they are waiving their rights to a jury trial. For matters in
which equitable or injunctive relief is sought or required, a court of competent jurisdiction shall be the
appropriate forum.
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The party demanding arbitration shall submit a written claim to the other party, setting out the basis of
the claim and proposing the name of an arbitrator. The responding party shall have ten (10) business
days in which to respond to this demand in a written answer. If this response is not timely made, or if
the responding party agrees with the person proposed as the arbitrator, then the person named by the
demanding party shall serve as the arbitrator. If the responding party submits a written answer
rejecting the proposed arbitrator and the parties cannot otherwise agree on an arbitrator, on the request
of either party the American Arbitration Association shall select an arbitrator. Except for discovery (as
detailed below), the mechanics of the arbitration shall be established by the arbitrator.
Limited discovery shall be available. No more than thirty (30) days before the arbitration hearing, a
party may serve a document request calling for any document that would be discoverable in civil
litigation. The party served with this request shall deliver the requested documents and any objections
within five (5) business days. The arbitrator may resolve any dispute over the exchange of documents.
Thereafter, each party may take no more than two (2) depositions, each of which shall last no more
than four (4) hours each. The arbitrator may resolve any dispute over the depositions as they would be
resolved in civil litigation.
The parties agree that the arbitrator shall be authorized to award attorney fees and costs to the
prevailing party.
24. NOTICE.
Notices herein shall be presented in person or by certified or registered United States mail, as follows:
To the Consultant:
Samuel K. Hughes
Asset Management and Program Development Consultant
1142 South Diamond Bar Boulevard, Suite 272
Diamond Bar, California 91765
(310) 880-0464
To the Agency:
Emil A. Marzullo, Interim Executive Director
Redevelopment Agency of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 9240 I
(909) 663-1044
Nothing in this paragraph shall be construed to prevent the giving of notice by personal service.
25. ENTIRE AGREEMENT.
This Agreement, with Exhibit "A," constitutes the final, complete and exclusive statement of the terms
of the agreement between the parties pertaining to the engagement of the Consultant by the Agency
and the entire understanding of the parties and supersedes all prior and contemporaneous
understandings or agreements of the parties. No party has been induced to enter into this Agreement
by, nor is any party relying on, any representation or warranty outside those expressly set forth in this
Agreement.
III
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the
day and year first written above.
AGENCY
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
r;/;J/c-1
By:
~
Dated:
Emil A. Marzullo, Interim Executive Director
Approved as to Form and Legal Content:
By: \. /~
'i\gency ou el
CONSULTANT
tJh/of
,
~~~
Dated:
By:
Samuel K. Hughes, Asset
Program Development Co
agement and
ltant
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Exhibit "A"
Samuel K. Hughes
Scope of Services
. Coordinate the initial project budget and application for Neighborhood Stabilization
Program 2 (NSP2) project proposal, in consultation with the Agency and project
management team (PMT);
. Confirm that the interest of the Agency is adhered to during ongoing negotiations with
the National Community Stabilization Trust (NCST);
. Support efforts related to establishing and maintaining records and financial accounting
systems to comply with NSP program guidelines and federal/state audit requirements;
. Coordinate and oversee the work of developers, cost estimators, appraisers,
environmental specialist, contractors, real estate agents and intermediaries contracted to
perform development activities on behalf of the Agency or its affiliated non-profit
corporation;
. Obtain a broker price opinion prior to entering into purchase price negotiations on any of
the foreclosure properties identified by the Agency under the NSP;
. Coordinate real estate purchase and sale contracts on behalf of the Agency or its affiliate
non-profit;
. Report on the progress of NSP activities to the Agency's Housing Director and other
interested parties; and Other related assignments as per the Agency's Housing Director.
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