HomeMy WebLinkAboutR30-Economic Development
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CITY OF SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCyOR1GINAL
FROM: Emil A. Marzullo
Interim Executive Director
SUBJECT:
The Fransen Company - Professional Services
Agreement for the preparation of a
Commercial/Retail Strategy and develop a
Marketing Potential Report for the Downtown
Core Vision/Action Plan
DATE: March 6, 2009
__________________.______________________________________________________________________________________._____________n______
SvnoDsis of Previous Commission/Council/Committee Action(s):
On March 5, 2009, Redevelopment Committee Members Johnson and Brinker unanimously voted to recommend that the
Mayor and Common Council and/or the Community Development Commission consider this action for approval.
Recommended Motion(s):
(Communitv Develooment 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 a Professional Services Agreement by and between the Agency and The Fransen
Company ("Consultant"), for the preparation of a Commercial/Retail Strategy and develop a Marketing Potential
Report for the Downtown Core ConceptlVision Plan in the amount not to exceed $110,000
Project Area(s):
Jeffrey Smith
Central City North and Central City
Redevelopment Project Areas
Phone:
(909) 663.1044
Contact Person(s):
Ward(s):
1st
Supporting Data Attached:
[{) Staff Report [{) Resolution(s) [{) Agreement(s)/Contract(s) 0 Map(s) 0 Letter(s)
FUNDING REQUIREMENTS:
Amount: $
110,000
Source:
Tax Increment
Budget Authority:
Fiscal Year 2008.2009 Budget
Signature: 7-'-~ ".
Emil A. Marzullo, Interim Executive Director
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Fiscal Revie : "~
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Services Director
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Commission/Council Notes: ~5"O ~e ZOo 9- / t:) m......
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?:\Agenda,\Comm Dev Commission\CDC 2009\03-16-09 Fransen Company - Professional Services Agreement SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 03/16/2009
Agenda Item Number: RgO
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
THE FRANSEN COMPANY - PROFESSIONAL SERVICES AGREEMENT FOR THE
PREPARATION OF A COMMERCIALIRETAIL STRATEGY AND DEVELOP A MARKETING
POTENTIAL REPORT FOR THE DOWNTOWN CORE VISION/ACTION PLAN
BACKGROUND:
In November 2008, The Fransen Company (the "Consultant") was retained by the Redevelopment
Agency of the City of San Bernardino ("Agency") 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 being done in conjunction with the planning efforts of EDA W, Inc. ("EDA W"), in the
development of the Downtown Core Vision/Action Plan ("Vision/Action Plan").
For 24 years, the Consultant has provided retail consulting services to cities, business districts, retailers,
developers, land owners, and major financial institutions. They 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 situations
and creating strategies and action plans. The Consultant has also worked to assist in the implementation
of these plans.
Since November 2008, the Consultant has met and conferred with Agency and City Staff, gathered and
researched relevant commercial and retail data, project site survey, and has held or participated in
stakeholder meetings and meetings with interested retail providers and developers, as well as other
interested community groups and individuals. With the assistance of the Consultant, a strategy and
approach will be formulated to address commercial and retail issues, opportunities, concepts and ideas to
revitalize Downtown.
CURRENT ISSUE:
In Downtown, there are 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 important assets and qualities that can be marshaled to create a compelling forum
for downtown retail success.
As the Vision/Action Plan is being prepared, interest has been posItive and promlsmg from the
community. The Consultant, along with Agency Staff, has been asked to prepare additional material,
make presentations, and facilitate meetings with other agencies, potential developers and other interested
parties. Additionally, they will evaluate physical, market, competitive, merchandising, economic,
demographic and other issues that impact current retail results and potential future retail development.
The Consultant identified an opportunity and is now assisting the Agency and EDA W, in the preparation
of a conceptual vision plan for a Theater Block, which includes the California Theatre of the Performing
Arts and the Maya Cinemas North America, Inc. Theater and the immediate surroundings within the
P:\Agendas\Comm De.. Commission\CDC 2009\03-]6-09 Fransen Company - Professional Services Agreement SR.doc COMMISSION MEETING AGENDA
Meeting Date: 03/16/2009
Agenda Item Number:
Economic Development Agency Staff Report
Professional Services Agreement - The Fransen Company
Page 2
Downtown Core. This vision for the Theater Block could serve as a catalyst project for Downtown. The
Consultant is starting to identify and engage potential retail developers and tenants for the Theater Block.
As the Agency moves forward toward completing the Vision/Action Plan, the Consultant must provide
support and materials for additional client and stakeholder meetings to move the Vision/Action Plan
forward to gain the required consensus and approvals.
In addition, the Consultant will also carry our message of retail development opportunities to the
International Conference of Shopping Centers ("ICSC") Conference to be held in Las Vegas, Nevada in
May 2009. It is important that the retailers are made aware of the market potential and market demand
that currently exists and to be created in Downtown and in the local sub-region. The ICSC Conference
will provide an avenue and forum in a national and international arena to provide the Theater Block
VISIOn.
It is proposed that the Agency enter into a Professional Services Agreement ("Agreement") with the
Consultant for an amount of not to exceed $100,000 for an approximately twelve (12) month work
program on an on-call, as-needed basis plus $10,000 for reimbursable expenses for a total amount of
$110,000. The requirements for payments are noted in the Agreement. The Agreement also contains the
Scope of Work to be undertaken by the Consultant.
ENVIRONMENTAL IMP ACT:
This item does not meet the definition ofa "project" under Section 15378 of the California Environmental
Quality Act (CEQA).
FISCAL IMPACT:
The cost of the Professional Services Agreement with the Fransen Company IS $110,000, which is
included in the fiscal year 2008-2009 Agency budget.
RECOMMENDA nON:
That the Community Development Commission adopt the attached Resolution.
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P:\AgcndasIComm Dev Commission\CDC 2009\03-16-09 Fransen Company _ Professional Services Agreement SR.doc
COMMISSION MEETING AGENDA
Meeting Date: 03/16/2009
Agenda Item Number:
I
RESOLUTION NO.
CC(Q)[P
2
3
4
5
6
7
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9
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 A PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE AGENCY AND THE FRANSEN COMPANY, FOR THE
PREPARATION OF A COMMERCIALIRETAIL STRATEGY AND
DEVELOP A MARKETING POTENTIAL REPORT FOR THE DOWNTOWN
CORE CONCEPTNISION PLAN IN THE AMOUNT NOT TO EXCEED
S110,000
WHEREAS, for 24 years, The Fransen Company (the "Consultant") has provided retail
10 consulting services to cities, business districts, retailers, developers, land owners, and major
11 financial institutions, by assessing complex downtO\'1n situations and creating strategies and action
12
plans, and assisting in the implementation of these plans; and
13
WHEREAS, the Consultant was retained by the Redevelopment Agency of the City of San
14
Bernardino (""Agency") to assist in identifying key issues and opportunities impacting the retail
IS performance of the City of San Bernardino's (""City") dovmtowTI (""Downtown") and assisting with
16 the planning efforts of EDA W, Inc. (""EDA W"), in the development of the Downtown Core
17 Vision/Action Plan (""Vision/Action Plan"); and
18
WHEREAS, the Consultant has met and conferred with Agency and City Staff, gathered and
19
researched relevant commercial and retail data, project site survey, and has held or participated in
20 stakeho.lder meetings and meetings with interested retail providers and developers, as well as other
21
interested community groups and individuals; and
22
WHEREAS, the Consultant, along with Agency Staff, has been asked to prepare additional
23
material, make presentations, and facilitate meetings with other agencies, potential developers and
24
other interested parties, and further evaluate physical, market, competitive, merchandising,
25
economic, demographic and other issues that impact current retail results and potential future retail
26 development; and
27
WHEREAS, the Consultant will present retail development opportunities to the International
28
Conference of Shopping Centers ("ICSC") Conference to be held in Las Vegas, Nevada in May
I
P\Agendas\Resolulions'Resolulions200903-16-09 Fransen Company - Professional Services Agreemenl CDC Reso doc
1 2009, informing retailers of the market potential and market demand that currently exists and will be
2 in existence in DO'-'11to'-'11 and in the local sub-region, and it is anticipated that the ICSC Conference
3 will provide an avenue and forum in a national and international arena for the display of the
4 Vision/Action Plan and the Theater Block project; and
5 WHEREAS, The Fransen Company and the Agency desire to enter into an agreement
6 pursuant to the terms and conditions as contained in the Professional Services Agreement (the
7 "AgreemenC) attached hereto and incorporated herein by reference.
8 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
9 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
10 FOLLOWS:
11
Section 1.
The Community Development Commission of the City of San Bernardino
12 ("Commission") hereby approves the Agreement by and between the Agency and the Consultant in
13 the form as attached hereto and as presented to the Commission upon adoption of this Resolution,
14 and the Commission hereby authorizes the Interim Executive Director to execute the Agreement on
15 behalf of the Agency together with such technical and conforming changes as may be recommended
16 by the Interim Executive Director of the Agency and approved by the Agency Counsel.
17
Section 2,
This Resolution shall take effect from and after its date of adoption by this
18 Commission.
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I
I'
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 A PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE AGENCY AND THE FRANSEN COMPANY, FOR THE
PREPARATION OF A COMMERCIALIRETAIL STRATEGY AND
DEVELOP A MARKETING POTENTIAL REPORT FOR THE DOWNTOWN
CORE CONCEPTNISION PLAN IN THE AMOUNT NOT TO EXCEED
S110,000
8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
meeting
9 Development Commission of the City of San Bernardino at a
21 The foregoing Resolution is hereby approved this
22
23
24
25
26 Approved as to Form:
27 ~
By: [;~
28 Agency C nsel
,2009, by the following vote to wit:
Nays
Abstain
Absent
Secretary
day of
,2009.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
3
P.\Agendas\Resolulions'Resolutions'1009\03-16-09 Fransen Company - Professional Services Agreement CDC Reso doc
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AGREEMENT FOR PROFESSIONAL SERVICES
THE FRANSEN COMPANY
This Agreement for Professional Services (the "Agreement") is made and entered into as of
March 16, 2009, 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:
I. 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 Al!reement. 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 Al!ency 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".
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 subcontractors
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PAgendas\Agenda Auachments\Agenda Altachmenls\Agenda Anachments'Agrmts-Amend 2009\03-16-09 Fransen Company. Professional Services AgreementdOl;
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 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.
D. The Consultant shall submit invoices under this Agreement to:
Redevelopment Agency of the City of San Bernardino
Attention: Interim Executive Director
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 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 "Coo 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 therefor 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.
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 .....ritten consent of the
Agency.
10. Confidentiality of Materials and Information. The Consultant shall keep
confidential all reports, survey notes and observations, information, and data acquired or generated in
performance of the work set forth in the Scope of Services, which the Agency designates confidential.
None of such designated confidential materials or information may be made available to any person or
entity, public or private, without the prior written consent of the Agency.
11. Default and Remedies.
A. Failure or delay by any party to this Agreement to perform any material, term or
provision of this Agreement shall constitute a default under this Agreement; provided, however, that if
the party who is otherwise claimed to be in default by the other party commences to cure, correct or
remedy the alleged default within seven (7) calendar days after receipt of written notice specifying
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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 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.
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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.
CONSULTANT:
The Fransen Company
Attention: John Fransen
4100 Campus Drive, Suite 200
Newport Beach, CA 92660
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AGENCY:
Redevelopment Agency of the City of San Bernardino
Attention: Interim Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
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
provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
18. Entire Al!reement. 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.
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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. Governine: 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. Assie:nment. This Agreement may not be assigned by the Consultant without the prior
written consent of the Agency.
23. Representations of Persons Executine: the Ae:reement. 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 m one or more
counterparts, each of which will constitute an original.
25. Effectiveness of the Ae:reement as to the Ae:encv. 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
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
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-Exclusivitv. This Agreement shall not create an exclusive relationship between
the Agency and the Consultant for the services set forth in Exhibit "A" 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
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',~,"vi",,, \" b~ l'"dOllTle'd oy tlw Consultant lur the Agency under Ihis Agreelll..:nt includint, l\(1t
'""'1,,,,.;tin:-: any ,,'rviees ilt all. TIu, AgJccmcnt only sets 1\)rt11 the t~rulS upon Wllidl any such "T. i"",
\vill bl.~ provid~d to thi...: Agcn<.:y hy the COJl$uHant. if such ~t;rvicc~ an:': r,~t.luc~;tcd hy the ^.c',l".'ncy. .1'; set
n)rlh in lhis ^grl.C!1ll'I1i.
2X, ('''.'l:'.-c.,t!!Sl1Jial 1):,0I111:"S _'>i Limitatiun of Liuhility, Th~ l\t:"I1")' and tbe Cons\iltallt
:lgre'c 1ha1 e~eepl :J> otherwise provided in this Seetiun 28, 'II) no eVenl will either he liabk to the'the,r
;H'H.kr this :\gn;(;ml..~nt tor any dllmag~~ iududing. b\1l Tlollin1itcd to, SP(~cj.'11 dam~\ge.:.;. 10:;:; of rl'V".nue.
],," of prof", opelating "0,1;; or business inlerruption loss'~s, n,gal'dk~s of Cllllse, including bread! nf
e"l\tl""'I, [1c~Jil:.C:l\cc. ,Iriel liahililY or ()th"rv.isl;, Thc' limitations ,md exdll,iollS of liability setllllth in
this S<:c1ion 2}; sh<.lll apply rr:g::.lnlk::-;s of fault brcuch of contract, rort.~ strj(.;.t liahil fly or oth~rwi:~,-' (.fthe
('t"-lTlStl!{~lJ\t and 11ll: /\~~cl\cy. tht.:ii' c1l1ployees or suhl.;nns.ult.~HllS.
29. Bt!SINfSS I~E(;ISTRATION CERTIFICATE. The Consultant warrants tlat It
rOSSt'sscs. or sh"ll ol'la;l\ irm))cdiulcly alle:r the execution and delivery of this 1\l:yeenlc"t, alld l1""lllail\
during tht..: period of tirIl\... that this Agrccm~nl is in coffect. H business rq;istrllti('J) Cl.....rtitil.:ilh: rursu:ml to
litk 5 (lI the (:il;: or S<Ut Hem,udino Municipll\ Cou~. logether "vith ,my and all otheT licenscs, pc"mits.
qua!; lic"li"...... ,mur,mce "nd apprllV<lls of whatever "ature lhot arc kgally required w be mainlaircll by
thl..' Cnn"':lIltmt to c.onduct its husln<.~ss activities within the City,
IN WITNESS WIIERLOI'. the partie:, he:rcto have ca",;"d thi, Agre"m"nt to he (;xeeul,'" as of
lh..: date ill(Jjt:Mcd next to lh~' authorized ~ignaturcs ol'thc officers orcnch oftheln J:-; appear be-In"',
A(;ENe,>,
Redevelopment Ag~ncy ofth" City ,,{San IkmanJilo.
a public budy, corpurate and politic
lJ:1t~r1:
.'. --.....--- -,._---,--.
By: ,__...__ . _.. ._ ..
Emil A. Marmllo, Interim E~~'(uliv~ Dir~ct';-,:-
;\ppro\'cod as to Flinn and Lee-al Content:
1-1;:
l\(.',C'ncy COtIBSC\
CONSULTANT
rhc J,'ransen COnlpl1IlY
lhtl"d'
By:
-'.'-'--."'~-'----".
John Fransen, Presith.:1t~
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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 Damal!:es & Limitation of Liabilitv. 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 ofrevenue,
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.
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:
,,/~t-
en Counsel
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 ongoing 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 projects including: 41h & E Street! 'Theater
Square," Carousel MalL downtown master plan efforts. Court Street, and others.
. Evaluate physicaL market, competitive, merchandising, economic. demographic and other issues that
impact current r~tail results and potential future retail development in downtown San Bernardino.
. Review plans for downtown 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 downtown 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 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 an executive summaries and oral reports.
TIMET ABLE:
Start: March 2009
Complete: March 20 I 0
FEES:
$100.000 professional fee for services, billed monthly@and 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 $150 without prior approval by the contract
administrator ($ I 0,000 total).
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EXHIBIT "B"
SUPERVISORY STAFF PERSONNEL
Agencv Staff:
Emil A. Marzullo, Interim Executive Director
Don Gee, Deputy Director
Jeffrey Smith, Senior Urban Planner
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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 le;Ist A(v), as set forth in the
then most current edition of "Bests Insurance Guide," as follows:
(I) 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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P:v\gcnda'\l'1.gcnda Allachmcnls\.Agcnda Allachmcnl,Agcnda Allacl1.mcnls'v\grmls-AmcrKI2009\03.16.09 Fransen Company - Profcs~ional Services AgreemcnLdoc