HomeMy WebLinkAboutR35-Economic Development Agency CITY OF SAN BERNARDINO
ORIGINAL
ECONOMIC DEVELOPMENT AGENCY
FROM: Emil A.Marzullo SUBJECT: The Fransen Company - Agreement for
Interim Executive Director Professional Services for Commercial/Retail and
Marketing/Siting Advisory Services for the
Downtown Core Vision and Action Plan Area
DATE: March 31,2010 and Business Retention/Expansion/Attraction
and Job Creation Program
Synopsis of Previous Commission/Council/Committee Action(s):
On February 18, 2010, Redevelopment Committee Members Johnson, Baxter 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 ("Agency")to execute
an Agreement for Professional Services by and between the Agency and The Fransen Company, for
Commercial/Retail and Marketing/Siting Advisory Services for the Downtown Core Vision and Action Plan Area
and Business Retention/Expansion/Attraction and Job Creation Program
Contact Person(s): Jeffrey Smith Phone: (909)663-1044
Project Area(s): City Wide Ward(s): All
Supporting Data Attached: 0 Staff Report 0 Resolution(s)0 Agreement(s)/Contract(s)❑ Map(s) ❑Letter(s)
not to exceed Southeast Industrial Project transfer to Budget
FUNDING REQUIREMENTS: Amount: $ $110,000 Source: Line Item 6600—Consulting Services
Budget Authority: Fiscal Year 2009-2010 Budget
Signature: Fiscal Review:
Emil A—Warhfflo,Intenm Executive Director Lori an ' illery,
Interim Administrative ervices Director
Commission/Council Notes: a20
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Meeting Date:
Agenda Item Number: 10eJ
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
THE FRANSEN COMPANY-AGREEMENT FOR PROFESSIONAL SERVICES FOR
COMMERCIAL/RETAIL AND MARKETING/SITING ADVISORY SERVICES FOR THE
DOWNTOWN CORE VISION AND ACTION PLAN AREA AND BUSINESS
RETENTION/EXPANSION/ATTRACTION AND JOB CREATION PROGRAM
BACKGROUND:
For more than a quarter century, The Fransen Company ("Consultant") has provided retail consulting
services to cities, business districts, retailers, developers, land owners and major financial institutions.
The Consultant have assisted cities such as: Santa Monica (3`d Street Promenade), Baltimore,
Sacramento (K-Street Mall), El Centro, Coronado, Glendale, Long Beach (Pine Avenue), Los Angeles,
Las Vegas and San Jose, by assessing complex downtown commercial and retail situations and
creating strategies and action plans. The Consultant also assisted in the implementation of these plans.
In November 2008, the Consultant was retained under the Redevelopment Agency of the City of San
Bernardino's ("Agency") purchase order authority to assist in identifying key issues and opportunities
impacting the retail performance of the City of San Bernardino's ("City") downtown ("Downtown").
This work was done in conjunction with the development and urban planning efforts for the
Downtown Core Vision and Action Plan("Vision Plan").
Since March 2009, with the assistance of the Consultant through an Agreement for Professional
Services, the Agency has identified and addressed a number of commercial and retail issues,
opportunities, concepts and ideas to revitalize Downtown. The Consultant has also introduced several
restaurant chains and niche eateries to Theater Square, the vacant Agency property in front of the old
CinemaStar movie theater, as well as advised the Agency of potential major retailers to re-enter the
San Bernardino market.
CURRENT ISSUE:
San Bernardino has a number of historic retail performance issues to overcome. There are key sites
that under-perform due to ownership structure, absentee ownership, site control, market competition
and other factors. The City has many important assets and qualities that can be marshaled to create a
compelling forum for retail success.
As the Vision and Action Plan was being prepared, the Consultant, along with Agency Staff, was
asked to prepare additional material, make presentations and facilitate meetings with other agencies,
potential developers and other interested parties as it related to commercial and retail opportunities in
Downtown. Since then, the Consultant has identified additional opportunities and has engaged
potential retail developers and tenants for the Inland Center Mall, various major commercial corridors
and industrial zones in San Bernardino.
PMgendaa\Comm Dm CommiuionTDC 2010\405-10 The Fonam Company-Agreemant for Pmaniond Serixa SRdoc COMMISSION MEETING AGENDA
Meeting Date: 04/05/2010 h
Agenda Item Number: V41
Economic Development Agency Staff Report
The Fransen Company-PSA
Page 2
As the Agency moves forward with the revitalization of Downtown San Bernardino and other areas
within the City, the Consultant's expertise is needed to analyze and compare commercial/retail
proposals, dining and entertainment development, and related economic development activities such as
job creation, retention and expansion.
In addition, the Consultant will also assist the Agency and our message of retail development
opportunities to the International Conference of Shopping Centers ("ICSC") Conference in May and
September 2010. It is important that the retailers are made aware of the market potential and market
demand that exist and will be in existence in Downtown and in the City and local sub-region. The
ICSC Conference will provide an avenue and forum in a national and international arena to promote
and market the City.
Hence, it is proposed that the Agency enter into an Agreement for Professional Services
("Agreement") with the Consultant for an amount not to exceed $110,000 for approximately a 12-
month work program on an on-call, as-needed basis. The requirements for payments are noted in the
Agreement. The Agreement also contains the Scope of Work to be undertaken by the Consultant and
will be provided as part of the Community Development Commission of the City of San Bernardino
("Commission") agenda report.
ENVIRONMENTAL IMPACT:
This item does not meet the definition of a "project" under Section 15378 of the California
Environmental Quality Act("CEQA").
FISCAL IMPACT:
Account Budgeted Amount: Not to exceed $110,000 to be transferred from Southeast Industrial Park
surplus tax increment to Budget Line Item 6600. Balance as of: March 31, 2010 (surplus tax
increment is presently indeterminable)
Balance after approval of this item: N/A
RECOMMENDATION•
That the Community Development Commission adopt the attached Resolution.
Emil A. Marzullo,Interim Executive Director
PBAgendelComm Dev Commission\CDC 201010/-05-10 the Fransen Company-Agreement for Profesiomd Service SRAd COMMISSION MEETING AGENDA
Meeting Date: 04//05/2010
Agenda Item Number: P-441
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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 ("AGENCY") TO
EXECUTE AN AGREEMENT FOR PROFESSIONAL SERVICES BY AND
5 BETWEEN THE AGENCY AND THE FRANSEN COMPANY, FOR
COMMERCIAL/RETAIL AND MARKETING/SITING ADVISORY
6 SERVICES FOR THE DOWNTOWN CORE VISION AND ACTION PLAN
AREA AND BUSINESS RETENTION/EXPANSION/ATTRACTION AND JOB
7 CREATION PROGRAM
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, California
10 Community Redevelopment Law, Health and Safety Code Section 33000, et seq. (the "CRL"), and
11 is charged with the mission of redeveloping blighted and underutilized land; and
12 WHEREAS, the Community Development Commission of the City of San Bernardino (the
13 "Commission") is the governing body for the Agency; and
14 WHEREAS, for 24 years, The Fransen Company (the "Consultant") has provided retail
15 consulting services to cities, business districts, retailers, developers, land owners, and major
16 financial institutions, by assessing complex downtown situations and creating strategies and action
17 plans, and assisting in the implementation of these plans; and
18 WHEREAS, the Consultant was retained by the Agency to assist in identifying key issues
19 and opportunities impacting the retail performance of the City of San Bernardino's ("City")
20 downtown ("Downtown") and assisting with the urban planning efforts of the Downtown Core
21 Vision and Action Plan ("Vision & Action Plan"); and
22 WHEREAS, the Consultant has met and conferred with Agency and City staff, gathered and
23 researched relevant commercial and retail data, project site survey, and has held or participated in
24 stakeholder meetings and meetings with interested retail providers and developers, as well as other
25 interested community groups and individuals; and
tome 26 WHEREAS, the Consultant, together with Agency Staff, have been asked to prepare
27 material, make presentations and facilitate meetings with other agencies, potential developers and
28 other interested parties, and further evaluate physical, market, competitive, merchandising,
1 economic, demographic and other issues that impact current retail results and potential future retail
2 development; and
3 WHEREAS, the Consultant will present retail development opportunities to the International
4 Conference of Shopping Centers ("ICSC") Conference to be held in May and September 2010,
5 informing retailers of the market potential and market demand that currently exists and will be in
6 existence in Downtown and in the local sub-region, and it is anticipated that the ICSC Conference
7 will provide an avenue and forum in a national and international arena to promote and market the
8 City; and
9 WHEREAS, on February 18, 2010, the Redevelopment Committee of the Economic
10 Development Agency of the City of San Bernardino (the "Committee") recommended to the
11 Commission approval of an Agreement for Professional Services (the "Agreement'), attached hereto
12 as Exhibit "A" and incorporated herein by this reference, by and between the Agency and the
13 Consultant, to accomplish any and all tasks necessary to prepare, complete and commercial/retail
14 and marketing/siting advisory services for the Vision & Action Plan Area and Business
15 Retention/Expansion/Attraction and Job Creation Program; and
16 WHEREAS, the Committee recommended that the Commission approve the Agreement and
17 authorize the Interim Executive Director of the Agency to execute said Agreement with the
18 Consultant for an amount not to exceed $110,000.
19 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
20 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
21 FOLLOWS:
22 Section 1. The Commission hereby approves the Agreement by and between the Agency
23 and the Consultant in the form as attached hereto as Exhibit "A", and the Commission hereby
24 authorizes the Interim Executive Director to execute the Agreement with the Consultant on behalf of
25 the Agency together with such technical and conformin changes as may be recommended by the
26 Interim Executive Director and approved by the Ag 1 "y Counsel. The Commission further
27 approves and authorizes the transfer of$110,000 of Sou:! ast Industrial Park surplus tax increment
28 revenues to Budget Line Item 6600—Consulting Servicc
1 Section 2. This Resolution shall take effect from and after its date of adoption by this
2 Commission.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
I THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
2 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
3 EXECUTE AN AGREEMENT FOR PROFESSIONAL SERVICES BY AND
BETWEEN THE AGENCY AND THE FRANSEN COMPANY, FOR
4 COMMERCIAL/RETAIL AND MARKETING/SITING ADVISORY
5 SERVICES FOR THE DOWNTOWN CORE VISION AND ACTION PLAN
AREA AND BUSINESS RETENTION/EXPANSION/ATTRACTION AND JOB
6 CREATION PROGRAM
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 Commission Members: Ayes Nays Abstain Absent
11 MARQUEZ —
12 DESJARDINS _
. 13 BRINKER —
14 SHORETT
15 KELLEY
16 JOHNSON —
17 MC CAMMACK —
18
19 Secretary
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21 The foregoing Resolution is hereby approved this day of 2010.
22
23 Patrick J. Moms, Chairperson
24 Community Development Commission
of the City of San Bernardino
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-' Approved as to Form:
27 By.
28 Agency C msel
EXHIBIT "A"
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2 Agreement for Professional Services
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REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AGREEMENT FOR PROFESSIONAL SERVICES
THE FRANSEN COMPANY
This Agreement for Professional Services (this "Agreement') is made and entered into as of
April 5, 2010, by and between the Redevelopment Agency of the City of San Bernardino ("Agency"),
a public body, corporate and politic, and The Fransen Company ("Consultant').
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES 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 the Consultant. The Agency staff designated in Exhibit `B" shall be
responsible for the direction of any work to be performed by the Consultant and any other consultants
or subconsultants 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 of the Agency 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 "A"
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 the Agency for Work Performed by the Consultant.
A. The Agency shall compensate the Consultant in an aggregate amount not to exceed
$110,000 for completion of the services described in the Scope of Services set forth in Exhibit "A"
billed to the Agency on a monthly basis for the hours worked by each individual listed on Exhibit"A"
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 billable to the Agency at the hourly rates as set forth in Exhibit "A" based upon the hours
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actually worked by the designated individuals. The Total Fee shall include, but not be limited to, the
compensation to all subcontractors retained by the Consultant and all employees of the Consultant to
perform work pursuant to this Agreement in accordance with the hourly rates set forth on Exhibit "A"
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 the 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 for the actual number of hours
worked by each designated individual at the hourly rates set forth in Exhibit"A".
D. The Consultant shall submit invoices under this Agreement to:
Redevelopment Agency of the City of San Bernardino
Attention: Jeffrey Smith, AICP, Senior Urban Planner
201 North"E" Street, Suite 301
San Bernardino, California 92401
E. Each invoice of the Consultant shall set forth the time and expenses of each individual
on behalf 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 performing the work task and any individual subconsultants
�^ 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 of 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 5 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 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 acts or omissions of the Consultant, its officers,
employees, subcontractors and agents, arising from or related to performance by the Consultant of the
work required under this Agreement.
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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, 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 set forth in
the Scope of Services shall be the sole property of the Agency, as of the time of their preparation and
payment therefore by the Agency, and shall be delivered to the Agency upon written request 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.
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The Consultant shall execute, acknowledge and perform any and all acts which shall reasonably
be 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.
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.
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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 the
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 parry 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.
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.
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CONSULTANT: The Fransen Company
Attention: John Fransen
4100 Campus Drive, Suite 200
Newport Beach, California 92660
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 the 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 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 or 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 Subcontractor 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 subcontractors shall, at any time,
or in any manner represent that it or any of its employees are employees of the Agency or any member
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
subcontractors to perform any item of work described in the Scope of Services. The Consultant is
entirely responsible for the immediate payment of all subcontractor 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
�h.. provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
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18. Entire Agreement. This Agreement constitutes the entire agreement between the
parties. This Agreement supersedes all prior negotiations, 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 to 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 the 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 or more
counterparts, each of which will constitute an original.
25. Effectiveness of the 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 of the Agency or his designee.
26. Conflicts of Interest. The Consultant hereby represents that it has no interests adverse
to the Agency or its individual member entities, at the time of execution of this Agreement. 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 its individual member
entities. 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 subcontractor 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 interests, business interests, professional employment relationships, contractual
�r 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 of any nature or any other
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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 "X' or any similar or related
services. The Agency may, during the term of this Agreement, contract 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 Damaees & Limitation of Liability. The Agency and the 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
contract, negligence, strict liability or otherwise. The limitations and exclusions of liability set forth in
this Section 28 shall apply regardless of fault, breach of contract, tort,strict liability or otherwise of the
Consultant and the Agency, their employees or subconsultants.
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.
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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 Co nsel
CONSULTANT
The Fransen Company
Dated: By:
John Fransen, President
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EXHIBIT "A"
SCOPE OF SERVICES
OBJECTIVE:
Consult on the overall retail situation downtown on an on-going basis and identify key strategic issues,
projects and a range of approaches to improving the environment for retail performance and development
with site specific and retailer-specific impact.
APPROACH:
• Provide retail development consulting on a series of proposed projects including: Downtown Vision
Plan efforts, Theater Square at 4h and "E" Streets, Carousel Mall, Court Street, Inland Center Mall and
others.
• Evaluate physical, market, competitive, merchandising, economic, demographic and other issues that
impact current retail results and potential future retail development in Downtown San Bernardino and
City commercial corridors.
• Review plans for commercial and retail developments and provide input.
• Conduct meetings with key retailers, developers and property owners.
• Advise City officials in negotiations and overall project issues.
• Identify key issues impacting retailer decisions regarding Downtown San Bernardino through direct
contact with key retailers.
• Conceptualize new retail opportunities in Downtown and the City, utilizing retail input directly from
stores.
• Prioritize projects and provide input and participate in project presentations to multiple audiences.
• Interface with City officials and key stakeholders to understand major opportunities and impediments
to retail attraction. May include presentation to the City Council and/or Planning Commission.
WORK PRODUCT:
Distill input and overview analysis into a series of high level retail strategic issues and potential action
plans and priorities. Present findings in executive summaries and oral reports.
TIMETABLE:
Start: March 2010
Complete: March 2011
FEES:
$110,000 professional fee for services, billed monthly @ an hourly rate for:
• John Fransen: $285.00
• Ron Arslan: $220.00
• Administrative: $60.00
Out-of-Pocket Expenses: Billed at cost and will not exceed $150 without prior approval by the contract
administrator($10,000 total).
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P:U,endmUeenda Attethments\Aeenda AnachmentsUermts-Amend 3010\01-05-10 The Fnnsen Comnanv-Aereemmt for Professional 5erricm.don
EXHIBIT "B"
SUPERVISORY STAFF PERSONNEL
Agency Staff:
Emil A. Marzullo, Interim Executive Director
Don Gee,Deputy Director
Jeffrey Smith,AICP, Senior Urban Planner
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EXHIBIT "Cyy
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) Automobile Insurance. The Consultant and each of its subcontractors
shall maintain comprehensive automobile liability insurance of not less than One Million
Dollars ($100,000,000.00) combined single limit per occurrence for each vehicle leased
or owned by the Consultant or its subcontractors and used in performing work under this
Agreement.
(2) Worker's Compensation Insurance. The Consultant and each of its
subcontractors shall maintain worker's compensation coverage in accordance with
California workers' compensation laws for all workers under the Consultant's and/or
subcontractor's employment performing work under this Agreement.
(3) 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 term of
this Agreement. Each policy of insurance that the 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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