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HomeMy WebLinkAbout13- Economic Development Agency DEVELOPMENT DEPARTMENT OF THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION FROM: KENNETH J. HENDERSON SUBJECT: ARROW VISTA HOUSING Executive Director DEVELOPMENT PROJECT DATE: March 30, 1994 Synopsis of Previous Commission/Council/Committee Action(s): On September 20, and in October 1993,the Community Development Commission and Redevelopment Committee considered various delinquent Agency notes with Dukes-Dukes and Associates. On October 7, 1993, the Committee submitted two (2) recommendations to the Community Development Commission regarding this project. On November 1, 1993, the Community Development Commission agreed to reconsider disposition of this development project in sixty (60) days. Synopsis Continued to Neat Page... Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission approve implementation of the agreement for termination of obligations pertaining to the Arrow Vista Housing Development,authorize the utilization of$120,000 in available low income housing monies and authorize the Chairman and Executive Director to execute any documents necessary to effectuate said implementation. !Wl s a 11 Administrator KENNE H J. HE ERSON Executive Director --------------------------------------------------------------------------------------------------------------------------------------------- Contact Person(s): Kenneth J. Henderson/Robert J. Lcmley Phone: 5081 Project Area(s): Northwest (NW) Ward(s): Six (6) Supporting Data Attached: Staff Report: Attachments "A" and "B" FUNDING REQUIREMENTS: Amount: $120.000 Source: Twenty Percent Set-Aside Budget Authority: Requested Commission/Council Notes: --------------------------------------------------------------------"---------------------------------------------------- KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA OMEETING DATE: 04/04/1994 Agenda Item Number: - (� p J REQUEST FOR COMMISSION/COUNCII, ACTION Arrow Vista Housing Development Project March 30, 1994 Page Number -2- ---------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s) Continued: On January 10,1994, the Community Development Commission discussed the current status of the marketing and sales activity regarding Arrow Vista Phase I and Phase IIA standing inventory. On January 24, 1994, the Community Development Commission authorized staff to develop a formal agreement based on the previously executed "Agreement in Principle" regarding disposition of the Arrow Vista housing development standing inventory. On February 16, 1994, the Community Development Commission considered disposition of the Arrow Vista Housing development project. During these discussions a motion to terminate the Joint Development Agreement and to take all necessary legal actions to obtain clear title to the Arrow Vista Standing Inventory and three (3) models was denied. ------------------------------------------------------------------------------------------------------------------------- KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA MEETING DATE: 04/04/1994 Agenda Item Number: — 0 DEVELOPMENT DEPARTMENT STAFF REPORT --------------------------------------------------------------------------------------------------------------------- Arrow Vista Housing Development Project On January 24, 1994, the Community Development Commission considered disposition of the Arrow Vista Housing Development Phase I and Phase H standing inventory. Discussions regarding disposition of this development project focused primarily on the validity of the eleven (11) then currently opened escrows and three (3) sales reservations. As previously documented, the existing project standing inventory consisting of thirty (30) homes and three (3) models represents a significant expenditure of Agency resources (approximately $4,000,000) which when sold could be utilized towards other worthwhile housing projects. In an effort to expeditiously facilitate disposition of the Arrow Vista project standing inventory to the mutual satisfaction of both the Agency and the Developer, an Agreement in Principle was presented for consideration to the Community Development Commission on January 24, 1994. The Agreement in Principle was developed and executed by Agency staff, the Developer and the Developer's legal counsel on Friday, January 21, 1994 (Attachment "A"). Following discussions regarding execution of the proposed Agreement, the Commission directed staff to proceed with development of a formal agreement implementing those provisions contained within the Agreement in Principle. The mutually agreed to deadline for formal execution of the above referenced agreement was Monday, January 31, 1994. This deadline and a subsequent deadline of February 9, 1994 were, however, not met by the developer. On February 21, 1994, the Community Development Commission reconsidered disposition of the Arrow Vista Housing Development Agreement pertaining to Phase I and Phase IIA Standing Inventory. Discussion at the Commission meeting focused primarily on the Agreement in Principle and the Relinquishment of Rights and Forgiveness of Obligations regarding Arrow Vista Housing Development Project Standing Inventory. During the course of discussions at the above referenced Commission meeting, a motion was entertained to terminate the Joint Development Agreement and to take all necessary legal actions to obtain title to the Arrow Vista Standing Inventory and three (3) models. While the motion failed, the Commission direction to staff was clear with regard to supporting the deal points set forth within the Agreement in Principle. -------------------------------------------------------------------------------------------------------------------------- KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA MEETING DATE: 04/04/1994 Agenda Item Number: 1 � DEVELOPMENT DEPAKiMENT STAFF REPORT 0 Arrow Vista Housing Development Project March 30, 1994 Page Number -2- ----------------------------------------------------------------------------------------------------------------- In an effort to permanently resolve the outstanding issues surrounding disposition of the Arrow Vista Standing Inventory, Development Department staff and Dukes-Dukes and Associates mutually developed a revised Agreement for Termination of Obligations Pertaining to the Arrow Vista Housing Development Project (Attachment 'B"). The points of variation between the recently developed Agreement for Termination and the Agreement in Principle, involve the following issues: • The Agency will "rent" the three (3) models from Dukes-Dukes and Associates for a twelve (12) month period at a cost of$5,000 per month. This amount includes interest payment to the Bank of San Bernardino,utilities,maintenance and security. • Proceeds from "sale" of the three (3) models will first be utilized to payoff the existing Bank of San Bernardino loan and to payoff remaining City of San Bernardino loan obligations. Any remaining proceeds beyond these amounts will then be paid directly to the developer. • The Agency will retain Pridemark Homes to provide specific contractor services in conjunction with a four (4) part warranty program. • The consulting agreement shall be between the Redevelopment Agency and San Bernardino Arrow Vista Corporation. It remains the specific intent of staff, upon execution of the Agreement for Termination, to immediately retain a marketing company to aggressively market and sell the Arrow Vista Standing Inventory. While a marketing firm will be retained to sell the standing inventory, Dukes-Dukes will be required to assist in this effort as more fully described in Attachment "C". This consultant services agreement outlines the duties and responsibilities of Dukes as a condition of receiving the twelve monthly payments of$10,000 (total of$120,000). Based upon the foregoing, staff recommends adoption of the form motion. l hSh KENNETH J. HENDERSON, Executive Director Development Department __________________________________________________________________________________________________________________________ KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA © MEETING DATE: 04/04/1994 Agenda Item Number: _ - 2 I' / AGREEMENT IN PRINCIPLE ARROW V° TA HOUSING PROJECT STANDI? INVENTORY January 21, 1994 1. That Dukes-Dukes and Associates remain in the project as a principal in a consultant capacity. 2. That the Joint Development Agreement between the City/Agency be terminated by mutual agreement with the understanding that no damage will be done to Dukes-Dukes and Associates or the Agency's reputation or the incurring of additional legal liability by Dukes-Dukes and Associates or the Agency. 3. That Dukes-Dukes and Associates be retained as a consultant to the Agency for the following purposes: A. Provide technical assistance to the Agency, the Agency's designated marketing and sales agent and prospective home buyers. B. Market the Arrow Vista project through word of mouth, public presentations and ensuring, to the maximum extent possible, the positive promotion of the Arrow Vista standing inventory. C. Work with the Agency's Housing Division in carrying out the goals and objectives of the Agency's Neighborhood Spirit Program in enhancing the area immediately surrounding the Arrow Vista standing inventory. 4. That Dukes-Dukes and Associates work with, coordinate with and cooperate with the Agency's designated Marketing/Sales Agent. 5. That Dukes-Dukes and Associates be compensated in an amount not to exceed $120,000, payable in 12 monthly installments of $10,000. 6. That the termination agreement will be executed by no later than January 31, 1994 or this Agreement in Principle becomes null and void. Alopment�HE ERSON, Executive Director HN UKES� ep a,oment Dukes-Dukes and Associ s DAVID R. EDGAR, Housing division Manager AMMIE DUKES Development Department Dukes-Dukes and Associates ATTACHMENT "A" MRR 30 '94 16t66RM O P.1 SABo & GREEN A p3tppg MIKAi COMRATfON ATfOINE"AT 1AW BUR EM 6MCANOOAAVN M wOODLANO NRl$CAI.ROQI'OA 9136/ (818)7a4-0195 Fez Number(818)704.4729 FAX COVER SHEET Date: March 30, 1994 File No. SEED 0001- 9 Time: 10:05 am To: Dave Edgar - Economic Dev. Agency, Housing Div. Mgr. From: Andre de Bortncwski Telephone Number: (909) 384-53123 Fax: (909) 888-9413 Number of Pages Including this Cover: 13 If you do not receive all pages or to request confirmation, please contact: Julie Comments: Attached is Draft copy of Agreement for Termination Re the Arrow Vista Housing Development Project for your review. Is f6ceiMds I¢intended only for the use el the persm ai Ornityy to hm6 bddr msed. h msy comet. Infarmmtan Trot la priv7eped e, confderuW. If you have reesimd this facdmils In error.p ATTACHMENT "B" I.3 MFR 30 '94 10:06FM P•z DRAFT 9130\M 9:40-.jR AGREEMENT FOR TERMINATION OF OBLIGATIONS PERTAINING TO THE ARROW VISTA HOUSING DEVELOPMENT PROJECT This Agreement for Termination of Obligations pertaining to the Arrow Vista Housing Dsvalopmen Project ("this Agreement") da Of 1994, by and among the is made this Y Redevelopment Agency of the City Of San Bernardino (the "Agency") , the city of San Bernardino, a charter city duly organized and existing pursuant to the constitution and lava of the State of California (the "City") , and Dukes, Dukes & Associates, Inc. , a California corporation ("Dukes") (hereinafter collectively referred to as the "Parties") , with respect to that Joint Development Agreement dated April 20, 1990, by and among the Parties hereto as amended by the First Amendment dated July 1, 1991, and the Second Amendment dated April 22, 1992 (the Joint Development Agreement, First Amendment and the Second Amendment are herein collectively referred to as the "Development Agreement") . R E C I T A L S WHEREAS, the parties have previously entered into said Joint Development Agreement dated April 20, 1990, as amended by the First Amendment dated July 1, 1991, and the Second Amendment dated April 22, 1992 ; and WHEREAS, the Parties now deem it necessary and desirable to restructure the existing relationship among the parties and to terminate certain rights and obligations of the parties in order to take into account certain economic conditions beyond the control of -1- L5 MAR 30 '94 10:07RM © O P.3 the Parties and to expedite the sale of 30 units of single family residential development which comprise Phase 1, Phase IIA (collectively hereinafter referred to as the "Arrow vista Standing Inventory") along with three model units (hereinafter referred to as "the Modals") all as more fully described in the Development Agreement; and WHEREAS, the units which comprise the Arrow Vista Standing Inventory are generally located on r street and Street and the Models are located on Street in the City of San Bernardino, and both the Arrow Vista Standing Investment and the Models are more fully described on Exhibit "A'! attached hereto and incorporated herein by this reference; and WHEREAS, . the Agency, by entering into this Agreement, will forgive certain payment obligations which otherwise would have been due and owing by Dukes to the Agency pursuant to the terms of the Development Agreament and certain performance obligations and shall deem such obligations terminated; and WHEREAS, in consideration of the forgiveness of certain performance and payment obligations, Dukes will waive certain rights and remedies it might otherwise have under the terms of the Development Agreement; and WHEREAS, the Agency owns or shall own all lots comprising the Arrow Vista Standing Inventory and Dukes has, or shall relinquish any and all rights with respect to such Arrow vista Standing inventory; and -2- MRR 30 '94 10:0BRM 0 [ ' P•4 WHEREAS, Dukes will retain ownership of title to the Models but will make said Models available for rental to the cy, or its designees as more fully described herein, in order Agen that they be used in connection with the marketing of the entire project, as defined in the Development agreement; and WHEREAS, as further consideration for Dukes' waiver of any rights or remedies with regard to certain obligations under the Development Agreement pertaining to the Arrow vista standing Inventory and the Models, Dukes will be retained by the Agency to act as a oonsultanIt for a period `of up to twelve (1 2) months from _. the date OfAc xecution of a certain consulting Agreement, as more fully hereinafter described, and Dukes will, to the extent it complies with the terms of said Consulting Agreement, receive compensation for services actually performed in an amount not to exceed Ten Thousand Dollars ($10,000.00) per month; and WHEREAS, the terms and conditions and the scope of services to be provided by Dukes in connection with its role as a Consultant to the Agency shall be more fully described in a Consulting Agreement to be entered into by and between Dukes and the Agency simultaneously with the execution of this Agreement) and WHEREAS, it is the intent of the Parties that all other rights and obligations of the parties under the provisions of the Development Agreement, except as otherwise expressly provided herein, Shall remain in full force and effect- -3- O l� MRR 30 '94 10:08RM O P.5 NOW, THEREFORE, the Parties hereto agree as follows: gectio?a_],.• Except as otherwise provided herein, all defined terms herein shall have the same meanings as set forth in the Development Agreement* ft2t on Z. The parties agree that there are presently thirty (30) homes which comprise the Arrow Vista standing Inventory which were previously caused to be constructed by Dukes; five (5) of which are in Phase I, and twenty-five (25) of which are in Phase IIA. in addition, Dukes has caused the construction of the three (3) Models. O 3. The Agency shall forgive in its entirety and shall deem fully paid and satisfied all amounts otherwise due and owing to the Agency under any existing Pronisaory Notes, Deeds of Trust, Mortgages, or the provisions of Development Agreement which specifically pertain to any loan of funds for the acquisition, construction or development of any housing units which comprise the Arrow vista Standing inventory or the Models. In addition, the Agency shall forgive in its entirety and shall deem fully paid and satisfied, certain amounts otherwise due and owing to the Agency which represent a portion of the loan from the Agency to Dukes established for the purposes of securing adequate sewer capacity and which portion is directly attributable to the Arrow Vista Standing Inventory and the Models. The Dukes's obligation to repay any amounts representing the hereinabove described Agency assistance with respect to the Arrow Vista standing Inventory and -4- MW 30 '94 10:0" © O P.6 the Models shall be deemed terminated as of the date of this Agreement. all deem all obligations of Furthermor e, the Agency s Dukes with respect to the acquisition, construction, development, sale and/or marketing of the unite which comprise the Arrow Vista standing Inventory fully satisfied and performed. Se„tion A. The Parties hereby agree that Dukes shall the Models provided, however, that Dukes retain legal title to shall make the models available to the Agency for rental by the a of�twelve (l2 mo nths fr for eriod om the d Agency P ency w111 Agreement, Dukes, obligation to rent each Model to the Ag be conditioned upon the Agency's payment of a monthly rental fee to Dukes for each Model in an amount equal to the monthly interest portion of the indebtedness owed by Dukes to the Bank of San Bernardino pertaining to such Model. In the event that the indebtedness of Dukes to the Bank of San Bernardino relative to each Model is paid off prior to thaexpiration of the twelve (12) month rental period, the Agency shall be entitled to continue to rent such Model on a monthly basis providing the Agency continues to pay to Dukes a monthly rental amount equal to the prior monthly rental amount which was paid while the indebtedness was still outstanding. Dukes agrees to execute any necessary rental agreements and/or other documents or take any necessary action to ensure such right of rental for the benefit of the Agency. During the period of time within which the Agency rents any of the Models, the A ens shall pay al*costs of utilities, -5- I MAR 30 '94 10:09RM P.7 Amaintenande costs, security costs an insurance costs relative to the M ale- tv taxes at�� use of the Models by the Agency, or necessary to ensure continued its designee Ashall be Paid by Dukes. The Agency may, in writing, consent to an earlier termination of the rental of the Modals in its sole discretion. ,seat+on 5, upon the termination of the Agency's rental of the Models, Dukes shall be free to sell the Models subject to the following! M if the sales price for any Modal is lass than $91,6s8.67 Per unit, Dukes shall apply all proceeds from ouch sale to repay its outstanding loan from the Bank of San Bernardino and shall, from its own funds, pay any outstanding shortfall balance directly to the Bank of San Bernardino. (ii) If the sales price for any Model is greater than $91,666.67 per unit but less than $143,933.34 Per unit, then Dukes shall apply $91,666.67 of the proceeds of such Bale to repay its outstanding loan from the Bank of San Bernardino and shall pay the remaining balance directly to the Agency as consideration for the Agency's prior loan of funds to Dukes. (iii) If the sales price for any Model is greater than $143,933 . 34 then Dukes shall apply $91,666.67 of such proceeds of the sale first to repay its loan to the Bank of San Bernardino and next apply the next $52,266.67 of the proceeds of the Sale to pay off its prior obligations to the Agency and thereafter shall be entitled to retain any remaining proceeds. -6- 13 MRR M '94 10:IBM 0 9 P.8 Ag9ti 6. Dukes hereby acknowledges and agrees that the prior commitments of the Agency to provide any assistance with regard to the Arrow Vista standing Inventory, the Models or any portion of the project, will no longer be in force and effect and will be deemed terminated, Dukes hereby waives any and all rights, of Dukes under the provisions of remedies and obligations is bone Development Agreement with respect to the sago d marketing of any of the units construction, development, sale an which comprise the Arrow vista Standing Inventory, the Models or any portion of -the Proj sot as defined in the Development Agreement and further waives any entitlement it might otherwise have as to any Agency assistance, financial commitments, reimbursement amounts, loan proceeds, sales revenues or proceeds, appreciation amounts, commissions or other remunerations which might otherwise be due and owing to Dukes under the terms of the Development Agreement. - Rego= 2, Dukes hereby agrees to provide services to the Agency in accordance with the terms and provisions of that certain consultant Agreement to be entered into simultaneously herewith by and between Dukes and the Agency and shall act as an Independent consultant to the Agency to continue marketing with respect to the Arrow Vista Standing inventory and the Models se specifically directed by the Agency for a period of not to exceed twelve (12) months after execution of the Consulting Agreement. Dukes shall be paid an amount not to exceed 510,000 per month at the expiration of each month for which services have been MAR 30 '94 10:10AM Q P•9 performed to the satisfaction Of the Agency to the extent it is otherwise in compliance with the terms of the Consultant Agreement. t ° upon execution of this Agreement, Dukes ad against the hereby waives any rights that it has or would have h Agcy or the City and their agents, officers, officials, employees, staff and consultants and contract employees for any o the Agency or City which have actions, either known or unknown, t accrued prior to the date of this Agreement with respect to the Arrow Vista standing Inventory, the Models or the Project. Dukes claims-Which may have arisen prior to the date shall not assert any ertaining o£ this Agreement and acknowledges that this Agreement p Inventory and the Models 1a in to the Arrow Vista Standing satisfaction in full of any and all such claims which Dukes may have against the Agency or the City, and its release shall also extend to all agents, officers, officials, employees, staff and consultants and contract employees of the Agency and the City in connection with all aspects of the negotiation of this Agreement and the prior city approvals of the Project. g s�rgon—g, Upon execution of this Agreement, John Dukes and Vivian L. Nash, both individually and as officers of Dukes, shall execute all such releases and quitclaim deeds in recordable form which shall, upon execution of this Agreement, be recorded Be as to release the Arrow vista standing Inventory, aecr n 1p, The Parties hereto recognize that neither any liens against the Agency nor the City shall be responsible for ^g' MAR 30 '94 10:11AM O P.10 the property or improvements, including mechanics' liens and materialmens' liens, which have been recorded against the Arrow vista Standing Inventory or the Models prior to the date of this Agreement. ��. Dukes warrants that the units comprising e Models have received the Arrow Vista Standing Inventory and th final inspection and approval by the City and agrees to provide the Agency with proof thereof. Dukes further warrants that, to the best knowledge and belief of Dukes, the Arrow Vista standing Inventory and the Models were constructed and developed in accordance with all applicable building codes, design criteria and land use and zoning regulations of the City of San Bernardino. Notwithstanding the foregoing warranties, Dukes hereby egress to hold the Agency harmless from, and to pay the costa of correcting, Inventory and the Models any defects of the Arrow Vista Standing for items that have been constructed or installed C Code be with applicable provisions of the Uniform Building Dukes may claimed by buyers thereof. in lieu of the foregoing, cause Pridemark Homes to provide adequate warranties and to hold half of Dukes to the extent Dukes the Agency and City harmless on be _ can establish that pridemark Homes has the ability to indemnify the Agency and/or the City for costs of any potential liability. Any defects that are the result of Dukes' failure to have constructed the units or to have installed any item in the units in accordance with applicable provisions of the Uniform Building Code .g. MAR 30 '94 10:11AM O P.11 shall be the sole financial responsibility of Dukes or, to the extent it assumes responsibility, pridemark Homes. In connection with the sale of any units comprising the Arrow Vista standing Inventory, Dukes shall cause pridemark Homes to enter into a separate Contractor's Agreement with the Agency in order to ensure that each of the residential alt units which covered will by be four (4) part warranty program, the reimbursed by the Agency, such program will provide that pridemark Homes shall be responsible for certain repairs as more fully a copy of which is described „in 1 the Contractor's Agreement, this attached hereto as Exhibit "A" and incorporated herein by reference. -io- I -i .wwwwwvw� MAR 30 '94 10:12RM i P.12 DRAFT IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF SAN BERNARDINO By= Tort nor mayor ATTEST: C ty C ark CITY OF SAN BERNE F THE ARDINO CIT By: Chairman ATTEST: Agency secretary DUKES, DUKES & ASSOCIATES By: T l V. By: T tle: SOHN DUKE6 VIVIAN L. NASB SDBO 001-40=714 -11- MAR 30 '94 10:12AM 0 P.13 EXHIBIT "A" Description of Arrow vista Standing Inventory (phase I, phase IIA) and Models. _1- MAR 30 e94 11:04AM [ ) PA ��// SABO & GPXXN AM0FBS8t0M LC0MRATW ATrovMS XT tAW surredoo 6NDCArr214AAV@1Nfl WOODLANDaII.18,CALII+DAMe 91167 (818)704-0195 Fax Number(818)70"729 FAX COVER SHEET Date: March 30, 1994 File No. SBEO 0001-4 Time: 10:59 am To: Dave Edgar • Economic Dev. Agency, Housing Div. Mgr. From: Andre de Bortnowski Telephone Number: (909) 384-3123 Fax: (909) 888-9413 Number of Pages Including this Cover: 21 I ti If you do not receive all pages or to request confirmation, please contact: Julie Comments: Attached is Draft copy of Consulting Agreement between Redevelopment Agency and San Bernardino Arrow Vista Corporation (Arrow Vista Housing Projectl for your review. 7Wo Iecalnule k hdendod only Im me uee of Iho Perim m of d j m which h le eddraeed. h may eoauh,inia,msflen Nut k prwileaod or conedenNel. If yw hwo recdved thb lemlmile in errs.,plows a Hy as Immediately. ATTACHMENT °C" � 'l MAR 30 '94 11:04AM O C P.2 DRAFT CONSULTING AGREEMENT BETWEEN REDEVELOPMENT AGENCY or THE CITY OF SAN BERNARDINO AND SAN BERNARDINO ARROW VISTA CORPORATION (ARROW VISTA HOUSING PROJECT) THIS CONSULTING AGREEMENT is made and entered into as of the day of , 1994 by and between the ,.t Agency y. :. Redevelopment Agency of the Cit °of 5ah BerHardino; `a public bad corporate and politic (hereinafter referred to as the "Agency") and San Bernardino Arrow Vista Corporation, a California corporation (hereinafter referred to as "Consultant") . W T THE 45ETH' WHEREAS, the Agency requires Consultant's assistance to provide marketing services in conjunction with the marketing and sale of certain residential properties known as the Arrow Vista Housing Project as more fully described in that certain Joint Development Agreement dated April 20, 1990 (the "Development Agreement") , as amended, by and among the Agency, the Consultant, and the City of San Bernardino (the "City") ; and WHEREAS, the marketing and sale of the redevelopment units (hereinafter referred to as the "Programs) cannot be performed by the regular employees of the Agency; and - 1 - 1 � MRR 30 '94 11:05RM 0 P.3 WHEREAS, the Program is to be implemented within a portion of the City of San Bernardino known as the Arrow Vista Housing Development which is more fully described on the map attached hereto as Exhibit "A" and incorporated herein by this reference and which contains approximately ( ) single family residential units which are to be occupied by low- and moderate-income households (hereinafter referred to as the "Site") ; and - " WHEREAS, consultant has represented that it has the requisite personnel and experience, and is capable of performing the necessary services to implement the Program. NOW, THEREFORE, it is mutually understood and agreed by the Agency and Consultant as follows: Section 1. complete Aaregmennt. This consulting Agreement, including all exhibits and documents incorporated herein or made applicable by reference, constitutes the complete and exclusive statement of the terms and conditions of the agreement between the Agency and Consultant and it supersedes all prior representations, understandings and communications. The invalidity in whole or in part of any term or condition of this Agreement shall not affect the validity of other terns or conditions. Either party's failure to insist in any one or more instances upon other party's performance of any of the 2 - MAR 36 '94 11:05RM P.4 terms or conditions of this consulting Agreement shall not be construed as a waiver or relinquishment of either party's right to such performance or to future performance of such terms or conditions and such party's obligation with respect thereto shall continue In full force and effeot. Amendments, changes or modifications hereto shall not be binding upon the Agency except when specifically authorized by the Agency. es ctio�Z, The AaengY Deeianea. The Executive Director of the Agency, or an authorized - representative of the Agency designated thereby, shall have the authority to execute this consulting Agreement and any and all documents required hereunder in order to implement this Consulting Agreement on behalf of the Agency. Section A. aratement of Woz]S. The Consultant shall perform the work necessary to complete in a professional manner and satisfactory to the Agency the services and tasks set forth in the Scope of services, attached hereto as Exhibit "e", which is incorporated herein by this reference and made a part of this consulting Agreement. The consultant agrees to provide the Agency with a list of the names of all personnel employed and subcontractors utilized In connection with the implementation of the Program and to update the list whenever any changes in personnel are made. r - 3 - 1 MAR 30 '94 11:06AM P•5 Section 4• This Consulting Agreement shall commence Upon the date set forth in the introductory paragraph and shall continue in full force and effect for a period of twelve (12) months from such date, unless terminated earlier through the mutual written agreement of the parties. Agency and Consultant shall have the right to terminate this Consulting Agreement, without cause, by giving not less than thirty (30) days' written notice of termination. If any portion of the Program is-terminated by 'Agency, then the provisions of section _ .. 5 herein would apply to that portion of the work completed. n ®oion 5. Comoensati011• The compensation to be paid by the Agency to the Consultant shall not exceed the sum of Ten Thousand Dollars ($10,000) per month, provided, however, that the Agency's obligation to provide compensation shall be terminated in the event that the Agency's ability to successfully market and sell the units comprising the Project, as defined in the Development Agreement, is hindered as a direct or indirect result of the prior actions of Dukes or its assignees or successors in interest. such prior actions may include but not be limited to the placement of any mortgages, liens or encumbrances on any units comprising the Project. For work under this Consulting Agreement, payment shall be made per monthly 'invoice. Consultant shall keep records in MAR 30 '94 11:06AM .0 O P.6 which complete and correct entries will be made of work actually performed in the rendering of the consulting services. These records will be made available at reasonable times to Agency. Consultant shall submit to the Agency a monthly progress report on or before the tenth (10th) calendar day of the month beginning on the first month after implementation of the Program and continuing every month thereafter. The progress report Shall be addressed to the Agency's authorized representative and shall, in a narrative format, describe the work accomplished during the preceding one Month period. section &. =ejlsn of Revorts ands c as. The originals of all letters, documents, computations, reports and other products and data produced by or on behalf of Agency under this Consulting Agreement shall, upon Agency's request, be delivered to, and become the property Of the Agency. Copies may be made for Consultant's records but no such deliverables shall be furnished to other parties, individuals or governmental bodies without written authorization from the Agency. Section 7. H-Qtices All notices hereunder and communications regarding the interpretation of the terms of this Consulting Agreement, or changes thereto, shall be effected by delivery of said notices in person, or by a telephonically confirmed fax transmission and depositing said notices in the V.S. mail, registered or certified - 5 - MRR 30 '94 11:07RM P.7 mail, return receipt requested, postage prepaid and addressed as follows and shall be deemed given when either personally delivered or by a telephonically confirmed fax transmission and/or deposited as aforesaid: To consultant: SAN BERNARDINO ARROW VISTA CORPORATION To Agency: REDEVELOPMENT AGENCY OF THE CITY OF SAN-BERNARDINO 201 North "E" Street, Third Floor San Bernardino, California 92401-1507 Attn: Housing Division Manager Sec In enen ent con rae=. Consultant's relationship to the Agency in the - - performance of this Consulting Agreement is that of an independent contractor. consultant's personnel performing services under this Consulting Agreement shall at all times be under Consultant's exclusive direction and control and shall be employees of Consultant and not employees, agents, contractors or representatives of the Agency. Consultant shall pay all wages, salaries and other amounts due its employees in connection with this Consulting Agreement and shall be responsible for all reports and obligation's respecting them, such as social security, income tax withholding, unemployment compensation, worker's compensation, employee benefits and similar matters. - 6 I _ J MRR 30 '94 11:07RM © O P•B ARQUon-2. i QuranzQ. During performance hereunder, consultant and each of its subcontractors, if any, shall separately maintain the following insurance, which shall be full-coverage insurance not subject to self-insurance provisions, and Consultant and its subcontractors shall not of their own initiative cause such insurance to be canceled or materially changed during the term of this Consulting Agreement. 1. Comprehensive' General Liability, including . _ Contractual, Independent Ccntractor, Errors and omissions; Personal Injury Liability; and Automobile Liability, including any autos; with at least the following limits of liability for Consultant and each subcontractor: a. Bodily Injury Liability limits of $1,000,000 per occurrence and $2,000,000 aggregate; and b. Property Damage Liability limits of $ 1,000,000 per occurrence and $2 ,000,000 aggregate; or C. Combined single limits of liability for Primary Bodily Injury and Property Damage of $2,000,000 per occurrence. 2. Worker's Compensation Insurance with the limits established and required by the State of California. 3. Employer's Liability with limits of $1,000,000. Prior to commencement of any work hereunder, Consultant shall furnish to the Agency appropriate broker-issued 7 _ 2 MRR 30 '94 11:06PM © O P•9 certificates of insurance demonstrating the required insurance coverage for consultant and each of its subcontractors and further providing that: I. the Agency is named as an additional insured on Comprehensive General Liability and Automobile Liability insurance with respect to performance hereunder; and 2. the coverage shall be primary and noncontributory as to any other , insurance with respect to performance hereunder; and 3. thirty (30) days' prior written notice of cancellation. or of material change in coverage be given to the Agency. "Occurrence", as used herein, means any event or related exposure to conditions which result in bodily injury or property damage. 2ection 10. ` mass Permits F eg s aFfl Agreements. At its sole expense, Consultant shall obtain all licenses, permits, and approvals as may be required by this Consulting Agreement. section 11. ramiliarity with ork. By executing this Consulting Agreement, Consultant warrants that: (i) it has investigated the work to be performed; (2) it has considered how the work should be performed; and (3) it 8 MRR 38 '94 11:09AM O P.10 understands the difficulties and restrictions of the work under this Consulting Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by Agency, it shall immediately inform Agency of this and shall not proceed, except at Consultant's risk, until written instructions are received from Agency. section 12. T'me of Ee"nce- Time is of the essence in the performance of thin Consulting Agreement: _,. ...... _...._.__._. __.. . Section 11. eietency of A e5P�M Except as stated in Section 3, in the ,event any of the provisions of this Consulting Agreement are considered to be inconsistent with any Exhibit hereto, the provisions of this Consulting Agreement shall have precedence in the interpretation of any such inconsistent provision. aeetion_14. ghaDgea. By written notice or order the Agency may, from time to time, order work suspension or make changes in the general scope of this Consulting Agreement including, but not limited to, the services furnished to the Agency by Consultant. I£ any such change caused an increase or decrease in the price of this Consulting Agreement, Consultant shall promptly notify the Agency thereof, and, within ten (10) days after the change is ordered, present the Agency with a not-to-exceed dollar amount for such service to be 9 MAR 30 '94 11:09AM 0 O P.11 added, changed or deleted. Consultant shall not proceed with any such additional work or take action to cause. the deletion or diminution of work until the Agency has by official action formally approved such additional work, modified work or deleted work and the compensation to be paid or to be deducted from the total compensation hereunder. sectio33__15_• Disputes. This Consulting Agreement shall be construed and all disputes hereunder shall be settled in accordance with the laws of —. the state of California. Pending final resolution of a dispute hereunder, each party shall proceed diligently with the performance of this Consulting Agreement. sertio_n_16. �• This Consulting Agreement may be terminated by Agency or Consultant in accordance with section 4. Upon receipt or giving of such notice, Consultant and its subcontractors shall refrain from entering into contractual relationships or incurring expenses or other obligations which require payment or performance beyond the effective date of termination. section 17. . Indemnification. Consultant shall indemnify, defend and save harmless the Agency, its officers, directors, employees and agents from and against any and all claims (including attorneys' fees and - 10 - i3 MRR 30 '94 11=10RM O © P.12 reasonable expenses for litigation or settlement) for any loss or damages for bodily injuries including death, or loss of, damage to or lose of use of property caused by the negligent acts, omissions or willful misconduct by Consultant, its officers, directors, employees, agents or subcontractors in connection with or arising out of the performance of this Consulting Agreement. ® o naaianment6 and 9ubeenrractinc. Neither this consulting Agreement or any interest herein nor claim hereunder may be assigned by Consultant either voluntarily or by operation of law. SACtion 19. Audit and In6A i o ds. After receipt of reasonable notice and during the regular business hours of consultant, Consultant shall provide Agency representatives, or agents of the Agency, such access to Consultant's books, records, payroll documents and facilities as such pasties deem necessary to examine, audit and inspect all accounting books, records, work data, documents and activities directly related hereto. such access shall include the right to review and inspect project activities of consultant and its subcontractors at all reasonable times during the term of thie Consulting Agreement, including review and inspection on a daily basis. Consultant shall maintain such books, records, data and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily - 11 - MRR 30 '94 11:10RM © O P.13 accessible to such parties during Consultant's performance hereunder and for a period of four (4) years from the date of final payment by the Agency hereunder. asection 20' Consultant warrants that in the performance of this Consulting Agreement, it shall comply, to the best of its knowledge with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and regulations promulgated thereunder. Sact on 21. Equal Employment Cnportunity. in connection with its performance under this consulting Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age or national origin. consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age or national origin, such actions shall include, but are not limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Section 22, conf1i t of inters Disclosure. - 12 - MAR 30 •94 11:11AM © O P.14 Consultant hereby represents and warrants to the Agency that Consultant or any member of Consultant, has no property ownership interest, contractual relationships of any nature or any other financial arrangements that would be considered to be in conflict with any interests of the Agency, and that any such property ownership interests, contractual relationships of any nature or any other financial arrangements will not adversely affect the ability of consultant to perform the services to the Agency as set forth in this consulting Agreement. Consultant shall use best efforts to determine whether .. any contractors or subcontractors may have possible conflicts of interest with the Agency and to the extent possible, will notify the Agency of such possible conflicts. Consultant further agrees to include the applicable language of this Section 22 in all contracts and agreements with each and every subcontractor designated to perform services and to obtain all necessary disclosures of factual matters from such subcontractors in sufficient detail to enable Consultant to determine whether a potential conflict exists. 5e9ti4ll_U. Force Maieuce. Either party shall be excused from performing its obligations under.,this Consulting Agreement during the time and to the extent that it is prevented from performing by a cause beyond its control, including but not limited tot any incidence of fire, flood or strike; acts of Godi commandeering of material, products, 13 - MRR 30 '94 11:11RM © © P.15 plants or facilities by the federal, state or local government; national fuel shortage; or any other cause when satisfactory evidence of such cause is presented to the other party, and provided further that such nonperformance is unforeseeable due to such cause, beyond the control and is not flue to the fault or negligence of the party not performing. 5&at5on 24, Copf id_ent ality of Data. All financial, statistical, personal, technical or other data and information relative to the Agency operations which _. are designated confidential by the Agency, and are made available to Consultant or its subcontractors under this Consulting Agreement, shall be protected by Consultant from unauthorised use and disoiosure. anr++�On_ t3gn_Liab of OEficia�s and Emoloveea of the A nc . No official or employee of Agency shall be personally liable to Consultant in the event of any default or breach by Agency, or for any amount which may become due to Consultant, or any obligation under the terms of this Consulting Agreement. 14 MRR 30 '94 11:12RM O O P.16 A th Yii•V t_O P'7LeC13te• The persons executing this Consulting Agreement on behalf of the parties warrant that they aro duly authorized to execute this Consulting Agreement and that by executing this Consulting Agreement, the parties are formally bound. sectiC d ines+ion. n__?1• ; f - This Consulting Agreement Constitutes the entire agreement between ' the parties and supersedes any previous agreements, oral or written. This Consulting Agreement may be modified only by subsequent mutual written agreement executed by Agency and Consultant. ,seotign—u• fiaalvar' All waivers of the provisions of this consulting Agreement must be in writing by the appropriate authorities of Agency and Consultant. sec�• gaLttgLn a mow. This Consulting Agreement shall be construed in accordance with the laws of the state of California. Any action commenced pursuant to this Consulting Agreement shall be initiated in the central or main branch of the San Bernardino County superior Court. - 15 MAR 30 '94 11:12AM O O P.17 C°,n ton 30, e r a . 'Phie Consulting Agreement shall be interpreted as though prepared by both parties. should any provision of this Consulting Agreement be found invalid or unenforceable, the decision shall affect only the provision interpreted, and all remaining provisions shall remain enforceable. shall be deemed effective upon This Consulting Agreement the date as aforesaid. 16 - l � MW2 30 '94 11:13RM O P.Is DRAFT IN WITNESS WHEREOF1 the parties hereto have caused this Consulting Agreement to be executed as of the date first above vritton. AGENCY THE CITY OZ"Agency" By: enneth J• Henderson Executive Director ATTESTS By: APPROVED AS TO FORM: AGENCY ATTORNEY By: SAN Corporation N W VISTA CORPORATION By: Name: Title: aE0VM14\DM7S2 wurnw.an�t 17 MRR 30 '94 11:1341 P.19 ._ ITST Pr cysiTA7TR TO AF sPPFNDf'O Exhibit A: Map Exhibit B: Scope of Services I3 MAR 30 '94 11.14AM P•20 EXF1 SIT ^A° ;c Mpg 30 •94 11:14RM ; f'\ P.21 OEXHIBIT "B" SCOPE OF SERVICES � 2