HomeMy WebLinkAboutR35- Economic Development CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
ORIGINAL
FROM: Emil A.Marzutto SUBJECT: Submit grant application and a Professional
Interim Executive Director Services Agreement for PB Americas, Inc.,
for the preparation of a Brownfield
Economic Development Initiative Grant
DATE: August 10,2010 Application for Theater Square
Development (Central City North
Redevelopment Project Area)
Synopsis of Previous Commission/Council/Committee Action(s):
On July 22,2010,Redevelopment Committee Members Johnson,Marquez,and Brinker unanimously voted to recommend that
the Community Development Commission consider this action for approval.
jRecommended Motion(s):
1
(Community Development Commission)
j 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 1) submit an
application to the United States Department of Housing and Urban Development for funding under the Brownfield
i Economic Development Initiative (BEDI) for Theater Square Development, 2) execute a Professional Services
Agreement with PH Americas, Inc., for the preparation of the BEDI Grant Application and 3) execute all related
i documents necessary to receive grant funding if grant application is approved(Central City North Redevelopment
Project Area)
Contact Person(s): Kathleen Robles Phone: (909)663-1044
Project Area(s): Central City North Ward(s): 19
Supporting Data Attached: Q Staff Report Q Resolution(s) QAgreement(s)/Contract(s) Q Map(s)O Letter(s)
FUNDING REQUIREMENTS: Amount: $ $34,000 Source: Tax Increment
Budget Authority: Fiscal Year 2010-2011
Signature: Fiscal Review:
Emil A. .Wlo, n Brim Executive Director Lori Pam'-Ti/,W We ' dminis five Services
Director
Commission/Council Notes:
P:wemdx�a Co=mien nC 2010w9.1e10 raA�sIm soo-Sid Agreen,wn-Bmi SK&cx COMMISSION MEETING AGENDA
Meeting Date: 008/16/10
Agenda Item Number: F'35'
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
SUBMIT GRANT APPLICATION AND APPROVE A PROFESSIONAL SERVICES
AGREEMENT FOR PB AMERICAS,INC., FOR THE PREPARATION OF A
BROWNFIELD ECONOMIC DEVELOPMENT INITIATIVE GRANT APPLICATION
FOR THEATER SQUARE DEVELOPMENT (CENTRAL CITY NORTH REDEVELOPMENT
PROJECT AREA)
BACKGROUND:
On December 29, 2008, the United States Department of Housing and Urban Development ("HUD")
issued a Notice of Funding Availability ("NOFA") for the federal Fiscal Year 2009-2010 Brownfields
Economic Development Initiative (the"BEDI") grants program. The BEDI is a key competitive grant
program that HUD administers to stimulate and promote economic and community development and is
designed to assist cities with the redevelopment of abandoned, idled, and underused industrial and
commercial facilities where expansion and redevelopment is burdened by real or potential
environmental contamination. From HUD's website, "the purpose of the BEDI program is to spur the
return of Brownfields to productive economic use through financial assistance to public entities in the
redevelopment of Brownfields, and enhance fie security or improve the viability of a project financed
with Section 108-guaranteed loan authority. Therefore BEDI grants must be used in conjunction with
a new Section 108-guaranteed loan commitment."
Currently, the Redevelopment Agency of the City of San Bernardino (the "Agency") administers the
City of San Bernardino's (the "City") CDBG program. The CDBG program includes the use of
HUD's Section 108-guaranteed loan program. In FY 1988-1999, the City obtained a $7 million HUD
Section 108 loan commitment for the financing of the 20-Plex CinemaStar movie theater in
Downtown. In 2008, the movie theater closed. In 2009,the Agency was successful in obtaining a new
$4.76 million HUD Section 108 loan commitment to upgrade and renovate the vacated movie theater.
In July 2010, the Agency refinanced the balance ($3.8 million) of the original $7 million HUD Section
108 loan. These actions taken are part of the City's efforts to revitalize Downtown via the
implementation of the Downtown Core Vision Plan ("Vision Plan").
As part of the Vision Plan, areas targeted for renovation, improvements, and new construction include
the vacant movie theater, the California Theatre, surface parking, various offices in and around the
movie theater, and the Agency's vacant parcels in front of the movie theater; these areas have been
identified as "Theater Square." The redevelopment objective for Theater Square is to create an
entertainment and dining district that would support the California Theatre and a new movie theater,
thereby becoming the first development in the revitalization of the Downtown.
With approximately $3.3 million of remaining HUD Section 108 loan capacity and a $660,000 BEDI
grant, these funds would be used to enhance the public itiftastructure of Theater Square, including
street access and design,building seismic remediation, public parking (via a parking structure), support
of the development of mixed uses, and address Brownfields issues.
2010,09-16-10PM�.�I.N.Sld A,..-BED]SR,&�� COMMISSION MEETING AGENDA
Meeting Date: 08/16/10
Agenda Item Number:
Economic Development Agency Staff Report
PB Americas, Inc. -Professional Services Agreement
Page 2
CURRENT ISSUE:
In response to the federal Fiscal Year 2009-2010 BEDI NOFA and with HUD indications that BEDI
funding may no longer be available in the future, the Agency has prepared, for the approval of the
Commission, a professional services agreement with PB America, Inc. (PBA), to complete a BEDI
grant application, and to coordinate and interface with the preparation of a new $3.3 million HUD
Section 108 loan application. These funds, if received would be used primarily for the development of
a parking structure, related ground floor retail and service uses, Brownfields site remediation, and
seismic enhancements to the California Theatre. The attached "Concept Plan" indicates the location of
possible parking structure with related retail and service uses. Additional consideration for these funds
may include needed seismic retro-fitting for the California Theatre and development of vacant Agency
owned property in front of the movie theater along with a public plaza area for dining/entertainment
venues.
PBA's Strategic Development Team is experienced in the BEDI and the HUD Section 108 loan
programs and is capable in preparing a BEDI funding application as required within the short
submission time frame. The $34,000 not to exceed cost includes the preparation of the BEDI grant
application, monitoring of the grant's review process, and coordination/interface with the preparation
of anew $3.3 million HUD.Section 108 loan application.
ENVIRONMENTAL IMPACT:
The action of preparing a BEDI grant application and 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:
There is no adverse fiscal impact to the City's General Fund by the preparation of a BEDI grant
application and the approval of a professional services agreement with PBA. The $34,000 not to
exceed cost of this project is an Agency FY 2010-2011 budgeted "Professional Services" line item.
Account Budgeted Amount: $0.00 Balance as of: Aueust 10, 2010
I
Balance after approval of this item: $0.00
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
Emil A. Marzullo, Interim Executive Director
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Meeting Date: 0�8/16/10
P—,161
Agenda Item Number: 1'-'1J`
COPY
I 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 1) SUBMIT AN
APPLICATION TO THE UNITED STATES DEPARTMENT OF HOUSING
5 AND URBAN DEVELOPMENT FOR FUNDING UNDER THE
BROWNFIELD ECONOMIC DEVELOPMENT INITIATIVE (BEDI) FOR
6 THEATER SQUARE DEVELOPMENT, 2) EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH PB AMERICAS, INC. FOR THE
7 PREPARATION OF THE BEDI GRANT APPLICATION AND 3) EXECUTE
8 ALL RELATED DOCUMENTS NECESSARY TO RECEIVE GRANT
FUNDING IF GRANT APPLICATION IS APPROVED (CENTRAL CITY
9 NORTH REDEVELOPMENT PROJECT AREA)
10
I I WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency'), is a
12 public body, corporate and politic existing under the laws of the State of California, Community
13 Redevelopment Law, Health and Safety Code 33000, et seq. (the "CRL"), and is charged with the
14 mission of redeveloping blighted and underutilized land; and
15 WHEREAS, on December 29, 2008, the United States Department of Housing and Urban
16 Development ("HUD") issued a Notice of Funding Availability ("NOFA") for its Fiscal Year 2009
17 Brownfields Economic Development Initiative ("BEDI") grants; and
18 WHEREAS, the BEDI is a key competitive grant program that HUD administers to
19 stimulate and promote economic and community development; and
20 WHEREAS, the BEDI grant program is designed to assist cities with the redevelopment o
21 abandoned, idled, and underused industrial and commercial facilities where expansion and
22 redevelopment is burdened by real or potential environmental contamination; and
23 WHEREAS, the purpose of the BEDI grant program is to spur the return of Brownfields to
24 productive economic use through financial assistance to public entities in the redevelopment of
25 Brownfields, and enhance the security or improve the viability of a project financed with Section
26 108-guaranteed loan authority and therefore must be used in conjunction with a new HUD Section
7 108 loan commitment; and
28
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I WHEREAS, in response to the June 2010 BEDI NOFA and with indications from HUD that
2 BED] funding may no longer be available in the future, the Agency prepared a professional services
3 agreement with PB Americas, Inc. (the "Consultant'), to complete a $660,000 BEDI grant
4 application and for subsequent coordination with the preparation of a new $3,300,000 HUD Section
5 108 Loan; and
6 WHEREAS, the Agency has submitted a $660,000 BEDI grant to be used in the
7 development of the Downtown Theater Square project primarily for the possible development of a
8 parking structure, related ground floor retail and service uses, Brownfields site remediation, and
9 seismic enhancements to the California Theatre; and
10 WHEREAS, on July 22, 2010, the Redevelopment Committee of the Economic
11 Development Agency of the City of San Bernardino (the "Redevelopment Committee")
12 recommended to the Community Development Commission (the "Commission") approval of the
13 submittal of a $660,000 BEDI grant application and an agreement for professional services (the
14 "Agreement'), attached hereto as Exhibit "A," by and between the Agency and the Consultant to
15 accomplish any and all tasks necessary to prepare and complete a BEDI Grant application in
16 addition to the subsequent coordination of the preparation of a $3,300,000 HUD Section 108 Loan
17 application; and
18 WHEREAS, the Redevelopment Committee recommended that the Commission approve
19 said grant application submittal and Agreement and authorize the Interim Executive Director of the
20 Agency to execute said Agreement.
21 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
22 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
23 FOLLOWS:
24 Section 1. The Commission hereby approves the submittal of a BEDI Grant application for
25 funding to HUD for federal Fiscal Year 2009-2010 in the amount of$660,000 for the purpose of
C16 the development of the Downtown Theater Square project primarily for the possible construction of
27 a parking structure, related ground floor retail and service uses, Brownfields site remediation, and
28 seismic enhancements to the California Theatre.
2
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I Section 2. The Commission hereby approves the Agreement and hereby authorizes the
2 Interim Execute Director of the Agency to execute the Agreement with the Consultant on behalf of
3 the Agency, together with any technical and conforming changes as may be recommended by the
4 Interim Executive Director of the Agency and approved by the Agency Counsel.
5 Section 3. That the Interim Executive Director of the Agency, or his designee, is authorized
6 to execute and submit to HUD, the appropriate applications, agreements and ancillary documents
7 necessary to receive BEDI grant funding if BEDI grant is awarded.
8 Section 4. This Resolution shall take effect upon its adoption.
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C 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
2 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO TO 1) SUBMIT AN
3 APPLICATION TO THE UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT FOR FUNDING UNDER THE
4 BROWNFIELD ECONOMIC DEVELOPMENT INITIATIVE (BEDI) FOR
5 THEATER SQUARE DEVELOPMENT, 2) EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH PB AMERICAS, INC. FOR THE
6 PREPARATION OF THE BEDI GRANT APPLICATION AND 3) EXECUTE
ALL RELATED DOCUMENTS NECESSARY TO RECEIVE GRANT
7 FUNDING IF GRANT APPLICATION IS APPROVED (CENTRAL CITY
8 NORTH REDEVELOPMENT PROJECT AREA)
9 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
10 Development Commission of the City of San Bernardino at a
11
meeting thereof, held on the day of , 2010,by the following vote to wit:
12 Council Members: Aves Nays Abstain Absent
13 MARQUEZ _
C14 DESJARDINS
15 BRINKER
16 SHORETT
17 KELLEY
18 JOHNSON
19 MC CAMMACK
20
21 Secretary
22 The foregoing Resolution is hereby approved this day of 2010.
23
24 Patrick J. Morris, Chairperson
Community Development Commission
25
26 Approved as to Form: of the City of San Bernardino
�
v/ By:
28 Agency o sel
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REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AGREEMENT FOR PROFESSIONAL SERVICES
PB AMERICAS, INC.
This AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement') is made and entered
into as of August 16, 2010 by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO (the "Agency"), a public body, corporate and politic, and PB AMERICAS, 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 famished 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.
4. PAYMENT BY AGENCY FOR WORK PERFORMED BY CONSULTANT.
A. The Agency shall compensate the Consultant in an aggregate amount not to exceed
$34,000 for completion of the services described in the Scope of Services set forth in
Exhibit "B."
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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
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
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
C) Agreement, such records shall be retained by the Consultant until all such litigation or audit has
been resolved.
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6. INDEMNIFICATION. The Consultant shall, 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.
Indemnification shall include reasonable cost of attorney's fee, court cost and other related costs
for any adjudicated damages attributable to the Consultant.
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 willful misconduct or negligence of the Consultant in the performance of the duties
incurred by the Consultant pursuant to this Agreement.
S. OWNERSHIP AND REUSE OF DOCUMENTS AND OTHER MATERIALS AND
INFORMATION. All maps, photographs, data, information, reports, drawings, specifications,
computations, notes, renderings, designs, inventions, photographs, modifications, adoptions,
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.
® 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.
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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,
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
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.
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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: PB Americas, Inc.
505 S. Main Street, Suite 900
Orange,CA 92868
Attention: Mark E. Briggs, Vice President
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
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
employees of the Agency or any member agency of the Agency. The Agency shall not be
® requested or ordered to assume any liability or expense for the direct payment of any salary, wage
or benefit to any person employed by 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.
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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
tern 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 be governed by the laws of the State of California.
Any legal action arising from or related to this Agreement shall be brought in the Superior Court
of the State of California in and for the County of San Bernardino.
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 he 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.
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) City of San Bernardino — WQMP & Plan Checking Services — On Call Contract — 2
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Years, and (ii) City of San Bernardino - Verdemont Water- Construction Management Services
for a) Palm Avenue Pump Station, b) Magnolia Pump Station, c) Palm Connector Transmission
Main Extension and d) Palm Reservoir. 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 tern 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.
30. NO THIRD PARTY BENEFICIARY. Parties enter into this Agreement for the sole benefit of the
parties in exclusion of any other party, and no third party beneficiary is intended or created by the
execution of this Agreement.
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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 63u n"06
CONSULTANT
PB Americas, Inc.
By:
Name:
Dated: Title:
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EXHIBIT "A"
SUPERVISORY STAFF PERSONNEL
Agency Staff:
Emil Marzullo, Interim Executive Director
Don Gee, Deputy Director
Kathleen Robles, Project Manager
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EXHIBIT "B"
SCOPE OF SERVICES
SCOPE OF SERVICES
City of San Bernardino—Theater Square Development
1. Work with Client staff and proposed end users to determine the funding gaps and potential
sources and uses.
3. Determine the appropriate level of Section 108 loan funds within the City's existing
capacity and the amount of BEDI grant funds needed for the project.
4. Provide recommendations for the structuring of the HUD funds and how competitive the
applications would be for funding.
5. Work with Client to secure the project details to complete the applications.
6. Prepare the draft BEDI application for Client review.
7. Submit the final BEDI application.
8. Follow-up with HUD as necessary.
FEE AND PAYMENT SCHEDULE
City of San Bernardino—Theater Square Development
The total contract amount shall be Thirty-Four Thousand Dollars ($34,000) for services as described in
the following payment schedule:
Structuring of Fund Use $ 8,500
Submittal of Draft Application to City $ 11,500
Submittal of Final Application to HUD $ 9,000
Coordination with Section 108 Application Preparation $ 5,000
Total $ 34,000
The Consultant has designated Mark E. Briggs as the Project Manager (the "PM"). In the event that the
PM is unable to continue performance under this Agreement, the appointment of a replacement of equal
caliber shall be subject to the prior written approval of the Agency.
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�.- 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 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 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 Covera¢e. 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 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 term of this Agreement. Each policy of insurance that Consultant purchases
in satisfaction of the insurance requirements of this Agreement shall name the Agency as an additional
insured and shall provide that the policy may not be cancelled, terminated or modified, except upon thirty
(30)days prior written notice to the Agency.
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