HomeMy WebLinkAbout15- Development Department 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
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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 Next Pate...
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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.
1 �ll
Administrator KENNE H J. HEIDERSON
Executive Director
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Contact Person(s): Kenneth J. Henderson/Robert J. Lemley Phone: 5081
Project Area(s): Northwest (N)n 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
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Commission/Council Notes:
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KJH:DRE:RJL:paw:arovista.edc COMMISSION MEETING AGENDA
MEETING DATE: 04104/1994
Agenda Item Number:
REQUEST FOR COMMISSION/COUNCIL ACTION
Arrow Vista Housing Development Project
March 30, 1994
Page Number -2-
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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.
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KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA
MEETING DATE: 04/04/1994
Agenda Item Number: 1
DEVELOPMENT DEPARTMENT
STAFF REPORT
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Arrow Vista Housine Development Proiect
On January 24, 1994, the Community Development Commission considered disposition of the
Arrow Vista Housing Development Phase I and Phase II 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.
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KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA
MEETING DATE: 04/04/1994
Agenda Item Number: ��
DEVELOPMENT DEPARTMENT STAFF REPORT
Arrow Vista Housing Development Project
March 30, 1994
Page Number -2-
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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.
It hm
KENNE H J. HENDERSON,Executive Director
Development Department
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KJH:DRE:RJL:paw:arovista.cdc COMMISSION MEETING AGENDA
MEETING DATE: 04/04/1994
Agenda Item Number: 16"-
AGREEMENT IN PRINCIPLE
ARROW V°"A HOUSING PROJECT STANDII NVENTORY
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.
KE TH J. HE ERSON, Executive Director HN UKES
velopment Dep ment Dukes-Dukes and Associ s
DAVID R. EDGAR, Housing ivision Manager A-
MMIE DUKES
Development Department Dukes-Dukes and Associates
ATTACIMNT "A"
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MAR 30 '94 10:06AM P.1
Saco & GREEN
A IMOpHUMMLCORWWAT10M
AT17ORNEY8 AT LAW
surm 4w
6920 CAN00A AVEMM
WOODLAND)MA,CALWORPIIA 91967
(818)704-0195
Fax Number(a 18)704-4729
FAX COVER SHEET
Date: March 30, 1994 File No. SBEO 0001-'i
Time: 10:05 am
To., Deva Edgar - Economic Dev. Agency, Housing Div. Mgr.
From: Andre de Bortnowski
Telephone Number: (909) 384-63123 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.
This facsimile 19 Intended only for the use of the per=en of
aentkv tify a It 6 aldreeeed. It mW ooetetn Mformodon that is priv2e09d or
confidential. If you have received this faceirnila in error,pl
ATTACHMENT "B"
MAR 30 '94 10:06AM P•2
DRAR
gHBO1Dd01.s1pp�173�
4130'1994 9:C8:jtf
AGREEMENT TA � SL ORO N® TO
�CW �BAHOUSING DRLOP dENT FJECT
This Agreement for Termination of obligations pertaining
to the Arrow Vista Housing Developmen project ("this Agreement")
is made this
day of 19941 by and among the
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 laws 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
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MAR 30 '94 10:07AM P.3
the Parties and to expedite the 'sale of 30 units of single family
residential development which comprise phase I, Phase IIA
(collectively hereinafter referred to as the "Arrow Vista Standing
Inventory") along with three model units (hereinafter referred to
as "the Models") all as more fully described in the Development
Agreement; and
WHEREAS, the units which comprise the Arrow Vista
Standing Inventory are generally
located on street and
Street and the Models are located on
-- Street in the'City of San Sernardino, . and both .. ..
the Arrow Vista Standing Investment and the Models are more fully
described on Exhibit "A'l 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 Agreement 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 anti 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
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MAR 30 '94 10:08AM P•4
WHEREAS, Dukes will retain ownership of title to the
Models but will make said' Models available for rental to the
Agency, or its designees as more fully described herein in order
that they be used in connection with the marketing of the entire
Protect,
as defined in the Development Agreement; and
WHMEAs, 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 con sultant for'a 'period 'of up
to-twelve (12) .months from
the dat a o execution 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 connections 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 exdcution 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. .
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MAR 30 '94 10:08RM P.5
NOW, THL?REFORE, the Parties hereto agree as follows:
S 1. Except as otherwise provided herein, all
defined terms herein shall have the same meanings as set forth in
the Development Agreement.
Deatim-2. 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
11A. In addition, Dukes has Caused the construction of the three
(3) Models.
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 Promissory 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
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MRR 30 '94 10:09RM P.6
the Models shall be deemed terminated as of the date of this
Agreement.
Furthermore, the Agency shall deem all obligations of
Dukes with respect to the acquisition, construction, development,
sale and/or marketing of the units which comprise the Arrow Vista
standing Inventory fully satisfied and performed.
The Parties hereby agree that Dukes shall
retain legal title to the Models provided, however, that Dukes
ailable to the Agency for rental by the
shall make the models av
Agency for „ period of twelve . 12 ,nths fro t
t _
A reement. Dukes' obligation to rent each Model to the Agency will
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 th twelve
expiration of the (1Z}
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
out standing Dukes agrees to execute any
necessary rental
agreements and/or other documents or 'take any neccssary action to
ensure such right of rental for the benefit of the Agency..
poring the period of time within which the Agency rents
any of the Models, the A enc shall pay allkeosts of utilities,
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MAR 30 '94 10:09AM P.7
Amaintenance costs, security costs an insurance costs relative to
1 a to nd th
the XQAe •
necessary
to ensure continued use of the Models by the Agency, or
its designee shall be paid 13Y Dukes-
The Agency may, in writing, consent to an earlier
termination of the rental of the Models in its sole di.scretion-
S coon 5-_ upon the termination of the Agency's
rental of the Models, Dukes shall be free to sell the Models
subject to the following:
If .the sales price for any..Model is less
than $91,666.67 per unit, Dukes shall apply all proceeds from,such
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 pot
unit, then Dukes shall apply $91,666.67 of the proceeds of such
sale 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. is
(iii) It the sales price for any Model
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
retain any remaining proceeds.
thereafter shall be entitled to
l�.
MAR 30 '94 10:10AM P.B
,aar+l�4en a. Dukes hereby acknowledges and agrees that
e _ en to provide any SBSigtanae with
the prior commitments of the Pg oY
regard to the Arrow Vista Standing Inventory,
the Models or any
portion of the project, will no longer be in force and affect and
will be deemed terminated. Dukes hereby waives any and all rights,
remedies and obligations of Dukes under the provisiong of the
Development Agreement with respect to the acquisition,
construction, development, sale and marketing of any
of the units
which comprise the Arrow Vista standing Inventory, the Modals or
eement
any portion of the project as defined in the Development Agr._
entitlement it might otherwise have as
and further waives any to
any Agency assistance, financial commitments, reimbursement
sales revenues or. proceeds, appreciation
amounts, loan proceeds,
amounts, commissions or. other remunerations which might otherwise
be due and owing to Dukes under the terms of the Development
Agreement.
Dukes hereby agrees to provide gervic®g 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
inde.pendent consultant to the Agency to continue marketing
efforts
with respect to the Arrow vista standing
Inventory and the Models
as specifically directed by
the Agency for a period of not to
ution of the Consulting
exceed twelve (12) months after exec
Agreement. Dukes shall be paid an amount not to exceed $10,000 per
month at the expiration of each month for which services have been
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MAR 30 '94 10:10RM P.9
performed to the satisfaction of the Agency to the extent it nis
P same
otherwise in co-APliance with the terms of the consultant Agreement.Dukes
s�ecti0 Upon execution of this Agreement,
that it has_ have had against the
hereby waives any rights
officers, officials,
Agency or the
City and their agents,
employees, staff and consultants and contract employees for any
actions, either known or unknown, to the Agency or city which have
accrued prior to the date of this Agreement with respect to the
Arrow Vista standing Inventory, the models or the project.
Dukes
'- -- ' claiYns"which may have arisen prior to the date,
shall not assert any ertaining
of thislAgreement and acicnowledg®s that this Agreement p
to the Arrow Vista Standing Inventory and the Models is in
satisfaction in full .of any and all such claims which Dukes may
City, and its release shall also
have against the Agency. ox the
agents, officers, officials, employees, staff and
extend to all
consultants and contract employe e$ o£ the ,Agency and the City in
connection with all aspects of the negotiation of this Agreement
and the prior city approvals of the project.
S c
Upon eXeautian of this Agreement, John
Dukes and Vivian L. Nash,
both individually and as officers of
and q
Dukes, shall execute all sucri releases quitclaim deeds bs
recordable form which shall, upon execution of this Agreement►
recorded so an to release the Arrow vista standing Inventory.
iinn 1 The Parties hereto recognize that neither
ible for any liens against
the Agency nor the city shall be respons
MAR 30 '94 10:11RM P.10
the property or improvements; including mechanics' liens and
materialmens' liens, which have been recorded against the Arrow
Vista Standing Inventory or the Modals prior to the date of this
Agreement.
Section 21. Dukes warrants that the units comprising
tho Arrow Vista Standing Inventory and the Models have received
final inspection and approval by the City and agrees to provide the
to the
Agency with proof thereof- Dukes further warrants that,standi e
the Arrow Vista
- best knowledge and belief of Dukes, and_ developed in
Inventory, . and the Xda6ls were constructed
applicable building codes, design criteria, and
acCOrdance� with all app g
lations of the City
of San Bernardino-
land land us8 and coning requ ass to
Notwithstanding the foregoing warranties, Dukes ,hereby gr
hold the Agency harmLless from, and to Pay the costs of correcting,
Vista. standing Inventory and the Models
any defects of th® Arrow
or items that have been Constructed or installed in accordance
f
with applicable provisions of the Uniform Building Code as may be
claimed by buyers thereof• In lieu of the foregoing, Dukes may
ies end to hold
cause Pridemark Homes to provide adequate warrant
Agency and City harmless on behalf of Dukes to the extent Dukes
th e g
can establish that pridemark Homes has the ability to indemnify the
for costs of any potential liability-
agency and/or the City
failure to have
Any defects that are the result of Duk®s'
constructed the units or to have installed any item in the units in
th applicable provisions of the Uniform Building Code
accordance wi
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MAR 30 '94 10:11AM P.11
shall be the sole f financial responsibility of Dukes or, to the
extent it assumes responsibility,
Pridemar]c Homes.
In connection with the gale of any units c=prising 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 units is covered yba
four (4) part warranty program, the costs of which will
raimbursed by the Agency. such program will provide that Pridemark
Homes shall be responsible for certain repairs as more fully ie
described in the Contra Agreement,ctor's
a. copy -of Whic_, _
as Exhibit "A" and incorporated herein by this
attached hereto
reference.
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MAR 30 '94 10:12AM P.12
DRAFT
IN WXTNESS WHEREOF' the parties hereto have executed this
Agreement on the day and year first above written.
CITY OF SAN BERNARDIN G
By:
Tom M nor
Mayor
ATTEST:
C ty C ark
CITY OF AGENCY
SAN BERNARD'NO THE E
$y=
Chairman
ATTEST:
Agency secretary
DUKES DUKES & ASSOCIATES
By:
Title:-
By:
Title."
JOHN DUKE6
VIVI NASH
OBOO I-40OM734
r11�
i
MAR 30 '94 10:12RM P.13
EXHIBIT "A"
Description of Arrow Vista Standing Inventory (Phase I,
Phase IIA) and Models.
MAR 30 '94 11:04AM P.1
SABO & GREEN
A pROPESS ZALCOUGRATM
l
AT1ozW$AT LAW
su=400
6710 CANOGAAYIAM
WOODLAND HIIAA CALWORN7A 91367
(81f3)704-0195
Fax Number(818)704.4729
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) 3843123 Fax: (909) 888-9413
Number of Pages Including this Cover: 21
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 Project) for your review.
TN*famimia if Intended only for the use of the person or eM1ty to which it is addrossod. it may contain infmmerion that is pr14agod or
tlonfiderrtIW. It you have received this focalmilo In error,prooae neaHy us invnedetely
ATTACHMENT "Crr
/5�
MRR 30 '94 11:04RM P.2
DRAFT
CONSULTING AGREEMENT
BETWEEN
REDEVELOPMENT AGENCY OF 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
.y.t A.en � the C'lty'"of "San'Ber�iard'i -public, body-
corporate Redevelopment Agency of n°`: a:
corporate and politic (hereinafter referred to as the "Agency") and
Sari Bernardino Arrow Vista Corporation, a California corporation
(hereinafter referred to as "Consultant")
WITNESSETHt ,
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 "Program") cannot be
performed by the regular employees of the Agency; and
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MAR 30 '94 11:05AM 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 I ( ) single
family residential units which are to be occupied by low- and
moderate-income households (hereinafter referred to as the "Sits") ;
and
WHEREAS, 'Consultant has represented that it has the .
i
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 I. dpi to Aare_e_ment.
This Consulting Agreement,, including all exhibits and
documents incorporated herein or roads 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
tenons or conditions. Either party's failure to insist in any one
or more instances upon other party's performance of any of the
2
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MRR 30 '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 effect. Amendments, changes or
modifications hereto shall not be binding upon the Agency except
when specifically authorized by the Agency.
8gation 2. The en es
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.
6ection �. Stateaent f Work.
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 "B", 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.
3 -
MAR 30 '94 11:06AM P.5
section 4. TOKM Q9 Aaregt.
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-_-.._
6 herein would apply to that portion of the work completed.
F ctio
Compensation.
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 aceignees for successors in interest. such prior
actions may include but not be limited to the placement Of any
mortgages, liens or encurbranees on any units comprising the
Project.
For work under this Consulting Agreement, payment shall
be made per monthly invoice. Consultant shall keep records in
4 .,
MAR 30 '94 11:0GAM 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 s. Qrnprship of Reports
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 . Notice-
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 U.S. mail, registered or certified
5
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MAR 30 '94 11:07AM F•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:
REDEVETjOPMEN7 AGENCY OF THE CITY 'OF SAN, BERNARDINO
2.01 ,North "E" Street, Third Floor
San Bernardino, California 92401-1507
Attn: Housing Division Manager
SACtiom 81. Independent Co=aotor.
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 othar amounts due its employees in connootion 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.
MAR 30 '94 11:07AM P.S
section . 1 nsurans .
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
golf-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 Generale Liability, including . ..
Contractual, Independent Contractor, 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 par 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 1imitg
established and required by the state of, California.
3, EmployerIa Liability,with. limit5 of $1400,000.
Prior to commencement of any work hereunder,
consultant shall furnish to the Agency appropriate broker-issued
MAR 30 '94 11:06AM P•9
certificates of insurance demonstrating the required insurance
coverage for Consultant and each of its subcontractors and further
providing that:
1. the Agency is named as an additional insured on
comprehensive General Liability and Automobile Liability insurance
with respect to performance hereunder; and
2. the coverage shall be primary and
noncontributory as to any other , insurance with respect to
performance hereunder; and
30 thirty (30) days' prior written notice of
cancellation or of material change in coverage be given to 'the
Agency.
+10ccurrence", as used herein, means any, event or
related exposure to conditions which result in bodily injury or
property damage.
section I Licenses, J!ermitn-
Agreement-1.
At its sole expense, Consultant shall obtain all
licenses, , permits, and approvals as may be required by this
Consulting Agreement.
section I Familiarity w th Work.
By executing this Consulting Agreement, consultant
warrants that: (1) it hag investigated the work to be performed;
(2) it has considered how. the work should be performed; and (3) it
8
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MRR 30 '94 11:08RM P.10
understands the difficulties and restrictions of the work under
this Consulting Agreement. Should Consultant discover any latent
or unknown condition$ 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 1,�.
Time is of the essence in the performance of this
Consulting" Agreement:
Section 21. Consistency of A4rQemflDtI-
gxcept 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.
EaCti2n 14. ��•
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. If any such change
causes an increase or decrease in the price of this Consulting
Agreement, Consultant shall promptly notify the Agency thereof,
and, within ten (lo) days after the change is ordered, present the
Agency with a not-to-exceed dollar amount for such service to be
9
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MAR 30 '94 11:09AM 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.
section 5. Difinutes.
This consulting Agreement shall be construed and all
disputes h®round®r 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.
8 ct3_on 16. e '
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.
gar
o Indemnificatiszn.
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 -
MAR 30 '94 11:10AM P.12
reasonable expenses for litigation or settlement) for any loss or
damages for bodily injuries including death, or loss of, damage to
or loss 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 A'xa�anment and 3
Neither this consulting Agreement or any interest herein
_.. nConsultant either _.
nor claim her- euder inay � be assigned � by
voluntarily or by operation of law.
Sect X119_. Au it and Inspectign of Bacors9s.
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 parties 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 this
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
�S
MAR 30 '94 11:10RM 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.
-.-a---_, waste artd Lo al Laws.
Consultant warrants that in the performance of this
Consulting Agreement, it shall comply, to the bent of its knowledge
with all applicable federal, state and local laws, statutes and
ordinances and all lawful orders, rules and regulations promulgated
thereunder. _.
soction 2�.. F
Qual EaplOvmQat_pN22orKjt:—ujnitY-
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 Cg f1 ict of Inters • D' 1 •
- 12
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MAR 30 '94 11:11AM 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 int erests, 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 g as set forth in this Consulting Agreement.
Consultant shall` use 'best efforts- to determine whether .._.
any contractors or subcontractors may have possibls conflictg' 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.
section gA.
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 to: any incidence of fire,
flood or strike; acts of God; commandeering of material, products,
13 -
MAR 30 '94 11:11AM P.15
plants or faciliti®s 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.
Section. Confident_ i ofd .
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 disclosure.
sectign 25. _ of i
of the AgencY•
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
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MAR 30 '94 11:12AM P.16
��rt i o]'1 2 6. tl�oritV
The persons executing this Consulting Agreement on behalf
of the parties warrant that they are duly authorised to execute
this Consulting Agreement and that by executing this Consulting
Agreement, the parties are formally bound.
sect�on�?• +�lc�dificat�3i •
This Consulting Agreement constitutes the entire
agreement between ' the parties and supersedes any previous
agreements, ora1 'or written. "` -This Consulting- Agreement.. may . -e3. ..,
modified only by subsequent mutual written agreement executed by
Agency and Consultant.
9e° n-n
Ail waivers of the , provisions. of this consulting
Agreement must be in writing by the appropriate authorities of
Agency and Consultant.
ct on ray i fornj Ls Yt•
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.
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MRR 30 '94 11:12RM P.17
Int�rnretation•
This Consulting Agreement shall be interpreted as though
prepared by both parties,
coat, im'u- Pros® va fo o Act eemeai •
Should any provision of this Consulting Agreement be
found invalid or unenforceable, the decision shall affect only the
provision Interpreted, and all retraining provisions shall remain
enforceable.
nt shall-be deemed .off eCt ve upon
This consulting Agr seme
the date as aforesaid.
is
MAR 30 '94 11:13AM P.16
DRAFT
IN WITNESS WHERBOFF the Parties hereto have caused this
Consulting Agreement to be executed as of the date first above
written.
RWEVE ,OpMENT AGENCY OV THE
CITY OF SAN BERNARDINO
"Agencyn
By'
e teth J. Henderson nt
Executive Director
ATTEST:
By.
APPROVED AS TO FORM'
AGENCY ATTORNEY
By:
SAN BERNARD KO ARROW vISTA CORPORATION
a California P
By:
Name:
Title:
UEO\00014\D=752
17
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MAR 30 '94 11:13AM P.19
LIST OF O E APRPFMM
Exhibit A: Map
Exhibit B: Scope of Services
MAR 30 '94 11:14AM P•20
ExHIBYT "All
MAP
MAR 30 '94 11:14AM P.21
EXHIBIT "Bit
SCOPE OF SERVICES
l�