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HomeMy WebLinkAboutR33- Economic Development CITY OF SAN BERNARDINO O R I G I N A L ECONOMIC DEVELOPMENT AGENCY FROM: Emil A.Maaullo SUBJECT: BB Architects - Professional Services Interim Executive Director Agreement (Central City North Redevelopment Project Area) DATE: September 1,2010 Synopsis of Previous Commission/Council/Committee Action(s): On August 19,2010, Redevelopment Committee Members Johnson, Marquez, and Brinker unanimously voted to recommend that the Community Development Commission consider this action for approval. -------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Community Development Commission) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino to execute a Professional Services Agreement with BB Architects,Inc.,fdt the preparation of an Americans with Disabilities Act Compliance Survey at 450 North"E"Street,San Bernardino(Central City North Redevelopment Project Area) Contact Person(s): Kathleen Robles Phone: (909)663-1044 Project Area(s): Central City North Ward(s): I" Supporting Data Attached: 0 Staff Report 0 Resolution(s)DAgreement(s)/Contract(s) 0 Map(s)O Letter(s) FUNDING REQUIREMENTS: Amount: $ $39,350 Source: Tax Increment Budget Authority: Fiscal Year 2010-2011 Signature: 4, PW Fiscal Review: Emil A.1 caul o, rim Executive Director Lo ' ar o- Interim Chief Financial Officer Commission/Council Notes: e ws�m..�co� coy:um�coc zaiowam-�o as nw,m.e,orev�ow sw;�e n®no ,t,mn s.w�r>samaCOMMISSION MEETING AGENDA Meeting Date: 09/07/2010^ Agenda Item Number: 33 ECONOMIC DEVELOPMENT AGENCY STAFF REPORT BB ARCHITECTS -PROFESSIONAL SERVICES AGREEMENT (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) BACKGROUND: On October 29, 1996, the Redevelopment Agency of the City of San Bernardino ("Agency") and MDA-San Bernardino Associates, LLC ("MDA"), entered into a Disposition and Development Agreement (1996-DDA) for the development, construction, improvement and financing of a multi- screen cinema complex and related common area improvements (the "20-Plex"). In 2001, with the downturn in the cinema industry, the Agency purchased the theater building (located at 450 North "E" Street) from MDA, together with the existing lease with the tenant. On September 28, 2008, the existing tenant, CinemaStar Luxury Theaters, Inc. ("CinemaStar"), ceased operations. On October 20, 2008, the Community Development Commission of the City of San Bernardino ("Commission") approved Resolution No. CDC/2008-41, authorizing the Interim Executive Director of the Agency to enter into a Redevelopment Project Study and Exclusive Right to Negotiate Agreement ("ERN") with Maya Cinemas North America, Inc. ("Maya"). The ERN provided for negotiating the terms of and possibly entering into a Disposition and Development Agreement("2008- DDA7) with the Agency for the purposes of acquiring the vacated Agency-owned 20-Plex. On December 15, 2008, the Mayor and Common Council of the City of San Bernardino ("Council") consented to the disposition of the 20-Plex to Maya and the Commission approved the sale of the 20- Plex and the Commission authorized the Interim Executive Director to execute the 2008-DDA between the Agency and Maya. During Maya's due diligence period, it was discovered that some of the theater risers had not been constructed to Americans with Disabilities Act ("ADA") standards. The finding of ADA non- compliance is a concern of the Agency since there may be other areas of the 20-Plex that may need to be brought into compliance with ADA standards. CURRENT ISSUE: On July 20, 2010, the Agency issued a Request for Proposals ("RFP") for the preparation of an ADA Compliance Survey — 20-Plex Cinema. The RFP was sent to nine (9) firms that specialize in ADA compliance issues for cinemas. The RFP required the consulting firths to prepare and submit a proposal to perform the necessary ADA Compliance Survey, along with answering specific questions pertaining to ADA compliance when dealing with an existing cinema building. The RFP required that all proposals be submitted to the Agency no later than Friday, July 30, 2010 at 4:00 p.m., via email with the original proposal to be submitted no later than 4:00 p.m., Thursday, August 5, 2010. Following is a list of the consulting firms that responded to the RFP: PWSWuTomm Da CommisslonTM 301M.07-10 BB Aa mts Pmfcsmnnl Smices Agmement(ADA Sun )SRdo COMMISSION MEETING AGENDA Meeting Date: 09/07/10 Agenda Item Number: X33 Economic Development Agency Staff Report BB Architects, Inc. -Professional Services Agreement Page 2 Consultant Firm Firm Location AECOM Los Angeles, CA BB Architects, Inc. Laguna Beach, CA Jeff Katz Architecture San Diego, CA Group 190 Architects Woodland Hills, CA On August 9, 2010, Agency Staff reviewed the proposals and determined that BB Architects, Inc. (`BB Architects"),met the Agency's needs based on theater experience. BB Architects is located in Laguna Beach, California. They have been continuously involved with the development of motion picture cinema and theater building design since 1986, initially working for Edwards Theaters, Inc., on new and redevelopment projects in southern California communities such as Ontario, Corona, Newport Beach and Laguna Niguel. BB Architects is also the western states architect for Regal Entertainment Group. Recommendation of the approval of this Professional Services Agreement ("Agreement") with BB Architects does not assume that Regal Entertainment Group will be the lessee of the 20-Plex. The Agreement will be an independent study to be performed prior to the award of any operating agreement for the 20-Plex and will set the basis for Agency Staff discussion with all proposed theater operators. Note that the Agency standard form of consulting agreement contains a conflict of interest section which has been completed by BB Architects to disclose any potential conflict of interest. ENVIRONMENTAL IMPACT: The action of the approval of a professional services agreement does not meet the definition of a "project"under Section 15378 of the California Environmental Quality Act(CEQA). FISCAL IMPACT: The preparation of the ADA Compliance Survey will have a fiscal impact on the Agency in the amount of$39,350.00 which will be paid from tax increment funds and said amount is budgeted in the Fiscal Year 2010-2011 Agency Budget. RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. Emil A. Marzullo,Interim Executive Director eupe asTomm Nv commimoofrnc 201U-o7-10 as Arcukmse f.ibW sue.AWsmsm(wA Sw )sn.a COMMISSION MEETING AGENDA Meeting Date: 09//077q/2010 Agenda Item Number: W7 J I I L FIFTH STREET 100' 60' 240' 23 $ O O Z 21,4755F s 15,0005E 8,970.805 7 8,6255E L W 2,6.,4' - 15661' 9 PV 199 Lu .81' W 25 20 ` 134-121 li �/� 51,0]2.20 SF ui ui V/ = 200a Parcel 1 Cn 4 18241 110,"2.405F = 29 0,697VSF 1]882' 9906' 1523]' 1R 31 30 JaM 1586 W 6565. SF 628W,,. Parch 2 Parcel 4 25,3325E z7 33 10 7,5935E Z,,400SF 7,4]4SF 22,190.645E 7275' 2825g Parcels 48.13� 28 10,5 407s x491 ' FOURTH STREET r 1 COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING 3 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT 4 AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH BB ARCHITECTS, INC., 5 FOR THE PREPARATION OF AN AMERICANS WITH DISABILITIES ACT COMPLIANCE SURVEY AT 450 NORTH "E" STREET, SAN BERNARDINO 6 (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) 7 8 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a 9 public body, corporate and politic existing under the laws of the State of California, Community 10 Redevelopment Law, Health and Safety Code 33000, et seq. (the "CRL"), and is charged with the 11 mission of redeveloping blighted and underutilized land; and 12 WHEREAS, on October 29, 1996,the Redevelopment Agency of the City of San Bernardino 13 (the "Agency") and MDA-San Bernardino Associates, L.L.C. ("MDA") entered into a Disposition 14 and Development Agreement for the development, construction, improvement, and financing of a 15 multi-screen cinema complex and related common area improvements(the"20-Plex"); and 16 WHEREAS, in 2001, with the downturn in the cinema industry, the Agency purchased the 17 20-Plex (located at 450 North "E" Street) from MDA, together with the existing lease with the 18 tenant; and 19 WHEREAS, on September 28, 2008, the existing tenant, CinemaStar Luxury Theaters, Inc. 20 ("CinemaStar"),ceased operations; and 21 WHEREAS, on December 15, 2008, the Mayor and Common Council of the City of San 22 Bernardino (the "Council") authorized the Interim Executive Director to execute a Disposition and 23 Development Agreement between the Agency and Maya Cinemas North America, Inc. ("Maya"), 24 for the disposition and sale of the 20-Plex; and 25 WHEREAS, during Maya's due diligence period, it was discovered that some of the theater 26 risers had not been constructed to the Americans with Disabilities Act("ADA") standards; and 27 WHEREAS,Maya's findings are a concern to the Agency since there could be other areas of 28 the 20-Plex that may need to be brought into compliance with ADA standards; and 1 / 1 WHEREAS, to address the potential for future ADA compliance issues and as a negotiating 2 base for the lease/sale of the 20-Plex, on July 20, 2010, the Agency issued a Request for Proposal 3 for an ADA Compliance Survey to be conducted; and 4 WHEREAS, on July 30, 2010, the Agency received four (4)proposals for the preparation of 5 an ADA Compliance Survey; and 6 WHEREAS, the Agency reviewed the proposals and on August 19, 2010, the 7 Redevelopment Committee of the City of San Bernardino (the "Redevelopment Committee") 8 recommended to the Commission approval of a Professional Services Agreement (the 9 "Agreement'), attached hereto as Exhibit "A," by and between the Agency and BB Architects, Inc. 10 (the "Consultant'), to accomplish any and all tasks necessary to prepare and complete an ADA 11 Compliance Survey for the 20-Plex; and 12 WHEREAS,the Redevelopment Committee recommended that the Commission approve the 13 Agreement and authorize the Interim Executive Director of the Agency to execute said Agreement. 14 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 15 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 16 FOLLOWS: 17 Section 1. The Commission hereby approves the Agreement and hereby authorizes the 18 Interim Executive Director of the Agency to execute the Agreement with the Consultant on behalf 19 of the Agency, together with any technical and conforming changes as may be recommended by the 20 Interim Executive Director of the Agency and approved by the Agency Counsel. 21 Section 2. This Resolution shall take effect upon its adoption. 22 23 24 25 C 126 Vl7 28 2 (� RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF ire 1 THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING 3 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE A 4 PROFESSIONAL SERVICES AGREEMENT WITH BB ARCHITECTS, INC., 5 FOR THE PREPARATION OF AN AMERICANS WITH DISABILITIES ACT COMPLIANCE SURVEY AT 450 NORTH "E" STREET,SAN BERNARDINO 6 (CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA) 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 8 Development Commission of the City of San Bernardino at a meeting 9 thereof,held on the day of 2010,by the following vote to wit: 10 Council Members: Ayes Nays Abstain Absent 11 MARQUEZ _ 12 DESJARDINS — 13 BRINKER - 14 SHORETT 15 KELLEY 16 JOHNSON — 17 MC CAMMACK 18 19 Secretary 20 21 The foregoing Resolution is hereby approved this day of 2010. 22 23 Patrick J. Moms, Chairperson 24 Community Development Commission 25 of the City of San Bernardino 26 Approved as to Form: 27 By: 28 Agency 6ou#sel 3 �- EXHIBIT "A" REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AGREEMENT FOR PROFESSIONAL SERVICES BB ARCHITECTS,INC. This Agreement for Professional Services (this "Agreement") is made and entered into as of September 7, 2010, by and between the Redevelopment Agency of the City of San Bernardino (the "Agency"), a public body, corporate and politic, and BB Architects, Inc. (the"Consultant'). NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS AND MUTUAL PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS: 1. SUPERVISION OF CONSULTANT. The Agency Staff designated in Exhibit "A" shall be responsible for the direction of any work to be performed by the Consultant and any other consultants or sub-consultants to the Agency under this Agreement. The Consultant shall not undertake any work under the terms of this Agreement, unless instructed to do so by one of the designated staff members. No other staff member is authorized by the Agency to request services from the Consultant. 2. TERM OF AGREEMENT. The term of this Agreement shall commence on the date first appearing in this Agreement and will terminate upon the completion of the services described in the Scope of Services as referenced in Section 3, unless earlier terminated as provided in this Agreement. The Agency reserves the right through the actions of the Interim Executive Director to terminate this Agreement at anytime either with or without cause and at the sole convenience of the Agency upon delivery of notice of termination to the Consultant; provided,however, that upon the effective date of any such termination,the Agency shall be responsible to pay and/or reimburse the Consultant for all services, materials and supplies as may have been furnished to the Agency in accordance with the Scope of Services as referenced in Section 3. 3. SCOPE OF CONSULTANT SERVICES. The Agency hereby retains the Consultant to provide the professional consulting services set forth in the Scope of Services attached hereto as Exhibit "B" and incorporated herein by this reference. The Consultant hereby agrees to perform the work set forth in the Scope of Services, in accordance with the terms of this Agreement. The Consultant shall perform the services as set forth on said Scope of Services within the time periods to be identified by the appropriate Agency representative. 1 P\ABeManWgenda AnechmmtsWgende Attic -"\Ag ,t Amend 2010\0947-10 BB hitwts Ro WoW Smices ASmement(A ASm y)data 4. PAYMENT BY AGENCY FOR WORK PERFORMED BY CONSULTANT. ��✓✓ A. The Agency shall compensate the Consultant in an aggregate amount not to exceed $39,350 for completion of the services described in the Scope of Services set forth in Exhibit "B," billed to the Agency on a time and materials basis for the hours worked by each individual listed on Exhibit "B" and at the hourly rates set forth for each such individual. B. The compensation designated in subsection 4. A. shall be the Total Fee for the performance of the work and the delivery of the final work product materials, as set forth in the Scope of Services. The Total Fee shall include, but not be limited to, the salaries of all sub-consultants retained by the Consultant and all employees of the Consultant to perform work pursuant to this Agreement and shall be inclusive of all costs and expenses incurred for mileage, travel,graphics, telephone, printing, fax transmission, postage, copies and such other expenses related to completion of the work set forth in the Scope of Services. C. The Consultant shall invoice the Agency for work performed by the Consultant under this Agreement each calendar month during the term of this Agreement. D. The Consultant shall submit invoices under this Agreement to: Redevelopment Agency of the City of San Bernardino �- Attention: Kathleen Robles,Project Manager 201 North"E" Street, Suite 301 San Bernardino, California 92401 E. Each invoice of the Consultant shall set forth the time and expenses of the Consultant incurred in performance of the Scope of Services, during the period of time for which the invoice is issued. Each invoice of the Consultant shall clearly set forth the names of the individual personnel of the Consultant and any individual sub-consultants utilized by the Consultant,during the time period covered by the invoice, a description of the professional services rendered on a daily basis by each named individual during such time period, the respective hourly rates of each named individual and the actual time expended by each named individual. Each invoice of the Consultant shall be accompanied by copies of all third party invoices for other direct costs incurred and paid by the Consultant during such time period. The Agency shall pay all amounts set forth on the invoices of the Consultant and approved by the authorized Agency Staff personnel who requested the services, within thirty (30) days after such approval. 5. RECORDS RETENTION. Records, maps, field notes and supporting documents and all other records pertaining to the use of funds paid to the Consultant hereunder shall be retained by the Consultant and available to the Agency for examination and for purposes of performing an audit r for a period of five (5) years from the date of expiration or termination of this Agreement or for a longer period, as required by law. Such records shall be available to the Agency and to appropriate county, state or federal agencies and officials for inspection during the regular business hours of the Consultant. If the Consultant does not maintain regular business hours, then such records shall be available for inspection between the hours of 9 a.m. and 4 p.m. Monday 2 P.4lgendea�AgeMe An..h..,Vk eMa Attachm<ouNgmu-AmeM 201=9-0-10 BBA hhxn fmfeerional Service A® .(A ASury )Eon through Friday, excluding federal and state government holidays. In the event of litigation or an audit relating to this Agreement or funds paid to the Consultant by the Agency under this Agreement, such records shall be retained by the Consultant until all such litigation or audit has been resolved. 6. INDEMNIFICATION. The Consultant shall defend, indemnify and hold harmless the Agency, its officers, employees, representatives, and agents from and against any and all actions, suits, proceedings, claims, demands, losses, costs and expenses, including legal costs and attorneys fees, for injury or damage of any type claimed as a result of the negligent acts or omissions of the Consultant, its officers, employees, sub-consultants and agents, to the extent arising from or related to negligent performance by the Consultant of the work required under this Agreement. 7. INSURANCE. The Consultant shall maintain insurance, as set forth in Exhibit "C" to this Agreement, throughout the term of this Agreement. The Consultant shall remain liable to the Agency pursuant to Section 6. above to the extent the Consultant is not covered by applicable insurance for all losses and damages incurred by the Agency that are caused directly or indirectly through the actions or inactions, willful misconduct or negligence of the Consultant in the performance of the duties incurred by the Consultant pursuant to this Agreement. 8. OWNERSHIP AND REUSE OF DOCUMENTS AND OTHER MATERIALS AND INFORMATION. All maps, photographs, data, information, reports, drawings, specifications, F— computations, notes, renderings, designs, inventions, photographs, modifications, adoptions, f utilizations, correspondence or other documents generated by or on behalf of the Consultant for performance of the work (collectively, the "Work Products") set forth in the Scope of Services shall upon payment for those services embodying the particular element of the Work Products, become the sole property of the Agency, and the Work Products shall thereafter be delivered to the Agency upon written request from the Agency to the Consultant. The Consultant shall not make use of any maps, photographs, data, information, reports, drawings, specifications, computations, notes, renderings, designs, inventions, photographs, modifications, adoptions, utilizations, correspondence or other documents and other materials whether for marketing purposes or for use with other clients when such have become the property of the Agency without the prior express written consent of the Agency except to the extent that such maps, photographs, data, information, reports, drawings, specifications, computations, notes, renderings, designs, inventions, photographs, modifications, adoptions,utilizations, correspondence or other documents are readily available to the general public as public records pursuant to State law;provided, however, that the Consultant may retain copies of any such items for their business records. The Consultant shall execute, acknowledge and perform any and all acts which shall reasonably required in order for the Agency to establish unequivocal ownership of the maps, photographs, data, information, reports, drawings, specifications, computations, notes, renderings, designs, inventions, photographs, modifications, adoptions, utilizations, correspondence or other documents and record, register and procure an issuance in or to the Agency's rights, title and/or interest. Any reuse without written verification or adaptation by the Consultant for the specific purpose intended will be at the Agency's sole risk and without liability or legal exposure to the Consultant. 3 P WgeMavUgeMe AnecM1mentsUgende A��uM1mems4lgmts-AmeM 2010W47-10 BB ArcM1itmc Pm(.0 OSmi.A,.M(AA Sm )d. 9. PRESS RELEASES. Press or news releases, including photographs or public announcements, or confirmation of the same related to the work to be performed by the Consultant under this Agreement shall only be made by the Consultant with the prior written consent of the Agency. 10. CONFIDENTIALITY OF MATERIALS AND INFORMATION. The Consultant shall keep confidential all reports, survey notes and observations, information, and data acquired or generated in performance of the work set forth in the Scope of Services, which the Agency designates confidential. None of such designated confidential materials or information may be made available to any person or entity, public or private, without the prior written consent of the Agency. 11. DEFAULT AND REMEDIES. A. Failure or delay by any party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within seven (7) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. B. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, `i however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice,as specified herein. C. Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties under this Agreement are cumulative and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. D. In the event that a default of any party to this Agreement may remain uncured for more than seven (7) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings. 12. TERMINATION. A. This Agreement may be terminated by either party for any reason by giving the other party fifteen (15) calendar days' prior written notice. The Agency shall pay the Consultant for all work authorized by the Agency and completed,prior to the effective termination date. B. In the event of a termination of this Agreement under this Section 12, the Consultant shall provide all documents, notes, maps, reports, data or other work product developed in 4 P VagendesVageMa AnechmenislAgenJa AsuchmenmUgrm ts-AmeM 301PB 7-10 BB Aschitws PmfRsionil Smites Agee (A Agurvry)dm performance of the Scope of Services of this Agreement to the Agency, within ten (10) calendar days of such termination and without additional charge to the Agency. 13.NOTICE. All notices given hereunder shall be in writing. Notices shall be presented in person or by certified or registered United States Mail, return receipt requested, postage prepaid or by overnight delivery by a nationally recognized delivery service to the addresses set forth below. Notice presented by United States Mail shall be deemed effective on the third business day following the deposit of such Notice with the United States Postal Service. This Section 13 shall not prevent the parties hereto from giving notice by personal service or telephonically verified fax transmission, which shall be deemed effective upon actual receipt of such personal service or telephonic verification. Either party may change their address for receipt of written notice by notifying the other party in writing of a new address for delivering notice to such party. CONSULTANT: BB Architects, Inc. Attention: Charles Bell,Associate Architect 1590 South Coast Highway, Suite 18 Laguna Beach, CA 92651 Phone: (949)494-8093 AGENCY: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director �.� 201 North"E" Street, Suite 301 San Bernardino, California 92401 Phone: (909)663-1044 Fax: (909) 888-9413 14. COMPLIANCE WITH LAW. The Consultant shall comply with all local, state, and federal laws, including, but not limited to, environmental acts, rules and regulations applicable to the work to be performed by the Consultant under this Agreement. The Consultant shall maintain all necessary licenses, including a City of San Bernardino Business License, and registrations for the lawful performance of the work required of the Consultant under this Agreement. 15. NONDISCRIMINATION. The Consultant shall not discriminate against any person on the basis of race, color, creed, religion, natural origin, ancestry, sex, marital status or physical handicap in the performance of the Scope of Services of this Agreement. Without limitation, the Consultant hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status of national origin. Further, the Consultant shall promote affirmative action in its hiring practices and employee policies for minorities and other designated classes in accordance with federal, state and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading and promotion. In addition, the Consultant shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap or religion in compliance with State and Federal laws. © 16. CONSULTANT AND EACH SUB-CONSULTANT ARE INDEPENDENT CONTRACTORS. The Consultant shall at all times during the performance of any work described in the Scope of Services be deemed to be an independent contractor. Neither the Consultant nor any of its sub- consultants shall at any time or in any manner represent that it or any of its employees are 5 P:USmdesbgee A=hmemsl gende ktmhmentsVgm s-Amend 20IM47-10 BB Amhnecn Profieional Services Ag mem(A ASm ),d employees of the Agency or any member agency of the Agency. The Agency shall not be requested or ordered to assume an liability or expense for the direct payment of an 4 Y tY P P Ym Y salary, wage or benefit to any person employed by the Consultant or its sub-consultants to perform any item of work described in the Scope of Services. The Consultant is entirely responsible for the immediate payment of all sub-consultant liens. 17. SEVERABILITY. Each and every section of this Agreement shall be construed as a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof to certain circumstances shall be declared invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is declared invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties. This Agreement supersedes all prior negotiation, discussions and agreements between the parties concerning the subject matters covered herein. The parties intend this Agreement to be the final expression of their agreement with respect to the subjects covered herein and a complete and exclusive statement of such terms. 19. AMENDMENT OR MODIFICATION. This Agreement may only be modified or amended by written instrument duly approved and executed by each of the parties hereto. Any such modification or amendment shall be valid, binding and legally enforceable only if in written form and executed by each of the parties hereto, following all necessary approvals and authorizations for such execution. 20. GOVERNING LAW. This Agreement shall he governed by the laws of the State of California. Any legal action arising from or related to this Agreement shall be brought in the Superior Court of the State of California in and for the County of San Bernardino. 21. NON-WAIVER. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the same provision or any remaining provisions of this Agreement. 22. ASSIGNMENT. This Agreement may not be assigned by the Consultant without the prior written consent of the Agency. 23. REPRESENTATIONS OF PERSONS EXECUTING AGREEMENT. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent. 24. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one (1) or more counterparts, each of which will constitute an original. 25. EFFECTIVENESS OF AGREEMENT AS TO THE AGENCY. This Agreement shall not be binding on the Agency until signed by an authorized representative of the Consultant, approved by the Agency and executed by the Interim Executive Director or his designee. 6 P.W,.ss\AgendeAttnchmew\AgendaM.hmm M,.trAmend 30IM9-07-10 BB Amhheca Pmuwiaml Se i¢s Agme (A ASa ).d 26. CONFLICTS OF INTEREST. The Consultant hereby represents that it has no interests adverse to the Agency or the City at the time of execution of this Agreement except as previously disclosed to the Agency Staff and in particular with respect to other work being performed by the Consultant for the(i) (ii) The Consultant hereby agrees that, during the term of this Agreement, the Consultant shall not enter into any agreement or acquire any interests detrimental or adverse to the Agency or the City. Additionally, the Consultant hereby represents and warrants to the Agency that the Consultant and any partnerships, individual persons or any other party or parties comprising the Consultant, together with each sub-consultant who may hereafter be designated to perform services pursuant to this Agreement, do not have and, during the term of this Agreement, shall not acquire any property ownership interest, business interests, professional employment relationships, contractual relationships of any nature or any other financial arrangements relating to the Agency, property over which the Agency has jurisdiction or any members or staff of the Agency that have not been previously disclosed in writing to the Agency, and that any such property ownership interests, business interests, professional employment relationships, contractual relationships or any nature or any other financial arrangements will not adversely affect the ability of the Consultant to perform the services to the Agency as set forth in this Agreement. 27. NON-EXCLUSIVITY. This Agreement shall not create an exclusive relationship between the Agency and the Consultant for the services set forth in Exhibit °B" or any similar or related services. The Agency may, during the term of this Agreement, Agreement with other consultants �.— for the performance of the same, similar or related services as those that may be performed by the Consultant under this Agreement. The Agency reserves the discretion and the right to determine the amount of services to be performed by the Consultant for the Agency under this Agreement, including not requesting any services at all. This Agreement only sets forth the terms upon which any such services will be provided to the Agency by the Consultant, if such services are requested by the Agency, as set forth in this Agreement. 28. CONSEQUENTIAL DAMAGES & LIMITATION OF LIABILITY. The Agency and Consultant agree that except as otherwise provided in this Section 28, in no event will either be liable to the other under this Agreement for any damages including but not limited to, special damages, loss of revenue, loss of profit, operating costs or business interruption losses, regardless of cause, including breach of Agreement, negligence, strict liability or otherwise. The limitations and exclusions of liability set forth in this Section 28 shall apply regardless of fault, breach of Agreement,tort, strict liability or otherwise of the Consultant and the Agency, their employees or sub-consultants. 29. BUSINESS REGISTRATION CERTIFICATE. The Consultant warrants that it possesses, or shall obtain immediately after the execution and delivery of this Agreement, and maintain during the period of time that this Agreement is in effect, a business registration certificate pursuant to Title 5 of the City of San Bernardino Municipal Code, together with any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to be maintained by the Consultant to conduct its business activities within the City. 7 P'Aga a,\Agenda Ana enuWgeM.Ana<hmenuUgml,-Am<M 3010\09-07-10 BB hilw, SeM.x A®eemrn[(ABA Survry).doa IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated next to the authorized signatures of the officers of each of them as appear below. AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Dated: By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: By: ^ Agency Counsel / CONSULTANT BB Architect, Inc. By: Name: Dated: Title: 8 r:ws<•d.sua<•a.nnunm<m.u¢<w.A=hm<ms\Affimsa-Amend 2010 7-10 ee Acnueas vmfnsm�sem«s Ag em(n ASw )a= EXHIBIT "A" SUPERVISORY STAFF PERSONNEL Agency Staff: Emil A. Marzullo, Interim Executive Director Don Gee, Deputy Director Kathleen Robles,Project Manager 9 P:WgmdasWVe &Attachmems\Apnda AttnhmemsWgrmu-AmeM 3010N9-07-10 BB hitema Pmtmwnd Smices"mem(ABA Sm )d EXHIBIT `B" ` SCOPE OF SERVICES The preparation of a complete ADA Title III Compliance Survey for the Cinema interior and exterior including, but not limited to the identification of all exiting issues, sidewalks and approaches to the entrances of the cinema, and the location, number and accessibility of the ADA complaint seating areas in each theater(auditorium), comprising the Cinema. The ADA Title III Compliance Survey for the Cinema is expected to take no more than weeks. Deliverables 1. One (1) Draft Reports for Agency staff review and comment prior to submittal of the Final Report. 2. Three (3) copies of the Final Report, one (1)copy utilizing the Window OS, and filed on a CD in a searchable PDF format. The Report is to contain ADA compliance survey results, conclusions, and recommendations for further action if needed and a specific description of each area of the Cinema where deficiencies are noted with the scope of suggested work plans and alternatives strategies suggested for remediation of such deficiencies. The Final Report will also address the structural and physical ability of the Cinema to accommodate any suggestions offered in the Final Report. PROPOSED ARCHITECT AND STRUCTURAL ENGINEER SERVICES FOR THE ADA TITLE III COMPLIANCE SURVEY—20-PLEX CINEMA SAN BERNARDINO, CALIFORNIA PHASE SITE VISIT SITE PREP- FINAL TOTAL PREP. VISIT REPORT REPORT DRAFT ARCHITECT: $4,600 $11,900 $13,150 $4,200 $33,850 ARCHITECT'S CONSULTANTS: STRUCTURAL $3,500 $2,000 $5,500 ENGINEER ARCHITECT $4,600 $11,900 $16,650 $6,200 $39,350 AND CONSULTANT TOTALS: Service Clarifications 1. This proposal is to be used in conjunction with a contract form provided by the"Agency"with the following provisions. 2. In no event will Architect's services or professional responsibilities include: (a) soils engineering or other geotechnical services, or any responsibility for the Project's soils, subterranean water 10 PUgen&sbSnda MnhmentsUgeada AttachmemsMS=m A.e 2010 7-10 BB Amhil.,&o ionalSn .,Agramem(ADA S.m).d- and/or subsurface-conditions; (b) hazardous waste or toxic substances engineering or pollution laws or for hazardous materials or toxic substances at the Project site, nor identified in the published product literature of the product's manufacturer; and (c) serving as, supervising or having any responsibility for any contractor, and in particular will have no responsibility for the timeliness or quality of any contractor performance, for construction means, methods, techniques, sequences or procedures, or for construction site safety or any construction safety program precautions. 3. Architect's service will be performed in accordance with generally and currently accepted design professional principal and practices, and without uninsurable service warranties. In particular, Architect will use its best professional judgment un interpreting and applying the requirements; but compliance with any laws as they may be eventually interpreted by others cannot be guaranteed. In no event will Architect guarantee cost estimates, schedule projections, building area tabulations or any prognostications as to future events including the discretionary decisions of government officials; and when used in conjunctions with the providing of services pursuant to this Agreement, such terms to "certify", "confirm", "warranty", "make sure", "insure", "ensure", "assure", or the like do not constitute a guarantee, but rather a representation based on professional opinion or judgment. 4. Architect will undertake legal responsibility for the design professional services provided pursuant to this Agreement, but not otherwise. In particular, Architect will not be responsible for construction site safety; for delays or other matters beyond its reasonable control: for inaccurate information provided by co-consultants or other reasonable reliable sources; for the services or instruments of service provided by others even if incorporated into Architect's instrument of service for ease of reference or otherwise; for hazardous materials or toxic substances at the Project site: for the recommendation of specification of products or equipment for purposes consistent with manufacture's published literature or containing toxic substances not disclosed in that literature; or for the actions or inactions of others including contractors, other consultants, utility companies and governmental or quasi-governmental agencies. OWNER'S COOPERATION: Toward the mutual goal of a successful project, the "Agency" shall make reasonable efforts to cooperate with Architect including with limitation: 1. Authorizing a Project Manager to direct and deal with Architect. 2. Providing timely information upon which can rely regarding Project conditions and requirements, including such specific information as Architect may reasonable requests such as"as built existing building construction documents, legal descriptions and limitations, and land surveys. 3. Respond to Architect's questions and requests for information and approval within a reasonable time. 4. Providing appropriate arrangements for the coordination of the Project's various "Agency" consultants. 11 P:4lgentlasUgeMe ABa<hmeNeUgmda A[lachmenuWgmnsAmeM 301PA9 47-10 BB AmhimGS Pmfessionel Serrim Agrcemmt(ADA Suswy)dov EXHIBIT"C" INSURANCE REQUIREMENTS The Consultant shall maintain insurance policies issued by an insurance company or companies authorized to do business in the State of California and that maintain during the term of the policy a "General Policyholders Rating" of at least A(v), as set forth in the then most current edition of "Bests Insurance Guide," as follows: (1) Comprehensive General Liability Insurance. The Consultant shall maintain comprehensive general liability insurance of not less than Two Million Dollars ($2,000,000.00)combined single limit,per occurrence. (2) Automobile Insurance. The Consultant and each of its sub-consultants shall maintain comprehensive automobile liability insurance of not less than One Million Dollars ($1,000,000.00) combined single limit per occurrence for each vehicle leased or owned by the Consultant or its sub-consultants and used in performing work under this Agreement. (3) Worker's Compensation Insurance. The Consultant and each of its sub-consultants shall maintain worker's compensation coverage in accordance with California �— workers' compensation laws for all workers under the Consultant's and/or sub- consultant's employment performing work under this Agreement. (4) Errors and Omissions Coverage. The Consultant shall maintain an insurance policy covering liability for errors and omissions of the Consultant in performing the Scope of Services of this Agreement in an amount of not less than One Million Dollars($1,000,000.00). Concurrent with the execution of this Agreement and prior to the commencement of any work by the Consultant,the Consultant shall deliver to the Agency, copies of policies or certificates evidencing the existence of the insurance coverage required herein, which coverage shall remain in full force and effect continuously throughout the tern of this Agreement. Each policy of insurance that Consultant purchases in satisfaction of the insurance requirements of this Agreement shall name the Agency as an additional insured and shall provide that the policy may not be cancelled,terminated or modified, except upon thirty (30)days prior written notice to the Agency. 12 P WgeMesUgenda AtmchmentsUgmEa M.h.m�s•AmeM 3010109 07.10 BB McM1itaLLPmfnaional Service Ag .e .(A A S.v )J.