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HomeMy WebLinkAbout09/17/2002, C5 - PARK NAMING FOR 1341 PURPLE SAGE STREET CITY PARK council hl=6�Da�V17 0 j acEnoa Pwpout CITYOF SAN LUIS O B I S P O FROM: Paul LeSage, Parks and Recreation Director SUBJECT: PARK NAMING FOR 1341 PURPLE SAGE STREET CITY PARK CAO RECOMMENDATIONS: As recommended by the Parks and Recreation Commission,name the City park site located at 1341 Purple Sage Street, Rodriquez Adobe Park. DISCUSSION As a part of the 2001-03 Fiscal Plan, the City Council approved the landscaping of a one-acre (+/-) parcel of City owned land, located next to the Rodriquez Adobe at 1341 Purple Sage Street. A location map is included (Attachment 1). The site will serve as a neighborhood park for residents in the southern portion of the Islay tract. In 1997, the City Council adopted a policy for the naming of park and recreation facilities. One of the approved criteria for naming is for a historic resource associated with the location. Since this property was acquired specifically to preserve the Rodriquez Adobe, the recommended naming is appropriate. A copy of the Naming Policy Resolution is included(Attachment 2). Constructed about 1850, the Rodriguez Adobe is one of about twelve historic adobes remaining in San Luis Obispo County. It is typical of the adobes that once provided homes in this area. Several of the inhabitants; have been from families that influenced San Luis Obispo history. When the City acquired this site in the late 1980's, the developer contributed $100,000 to assist with the restoration of the adobe and since then Community Development Block Grant (CDBG) funding has been allocated, but no funding was made available for the grounds also acquired. A group of residents living near the adobe approached the City in early 2000 and asked that the City develop the site with a park. They were successful and the improvement project was included in the 2001-03 Budget. Construction began this spring and is now in the maintenance phase. CONCURRENCE The Park and Recreation Commission unanimously approved this recommendation at their August 7, 2002 meeting (Attachment 3). GAflWser DeJamedelAgenda Prep FilesICAR-Naming Purple Sage Stmtdoc Gs-I Council Agenda Report—Park Naming for 1341 Purple Sage Street City Park Page 2 FISCAL IMPACT If this naming is approved, a standard City park sign will be purchased from the Parks and Recreation Department operating budget. No additional funding is required. ATTACHMENTS 1. Location Map. 2. Naming Policy for Parks and Recreation Facilities Resolution. 3. Parks and Recreation Commission Minutes of August 7, 2002. G:OaMser DeJamettA4genda Prep ResIDAR-Naming Purple Sage Stmet-d= Cs-L 1341 PURPLE SAGE ani- TANK PA►ZM �` Gut� - 1 rJ� � O Q v E D O I Z � d a CITY OF SAN LUIS OBISPO GEODATA SERVICES 955 MORRO STREET SAN LUIS OBISPO,CA 93401 CS-� (805)781-7167 08/21/02 15:50 RESOLUTION NO. 8621 (1997 Series) A POLICY FOR THE NAMING OF PARKS AND RECREATION FACILITIES WHEREAS, it is appropriate that parks and recreation facilities, and portions of those facilities, be named in honor of citizens of the City of San Luis Obispo, and WHEREAS, such naming should be made for persons or groups who have made significant contributions to the City, and WHEREAS, naming can also be made for other appropriate reasons, and WHEREAS, such naming nominations shall be reviewed by the Parks and Recreation Commission and forwarded to the City Council for approval. NOW, THEREFORE, be it resolved that the City Council of the City of San Luis Obispo does adopt this policy concerning the naming of park and recreation facilities, with the following provisions: 1. Naming of facilities may be made for individuals or groups who have made significant contributions or service to the City of San Luis Obispo and its citizens. 2. Naming may commemorate significant financial contributions to a specific project. 3. Naming is also appropriate for significant natural or historic resources associated with a particular location. 4. Naming need not be posthumous. 5. Those wishing to make nominations shall submit a letter to the Parks and Recreation Commission detailing why the naming should be considered. 6. Those nominations judged to be worthy of consideration shall be forwarded to the City Council for approval. 1 t n I Resolution No. 8621 (1997 Series) Page Two 7. While the policy primarily deals with new park sites, the renaming of existing facilities or unnamed portions of facilities is not precluded. When such a request is received, the current site name will be researched to see that the request is not contrary to a previous naming. Such naming changes are seen as being appropriate for parks with generic names. 8. Any expenses associated with a facility naming are not necessarily the responsibility of the City. On motion of vice mayor P,oaiml n , seconded by c MC r. t:,F,, S}•,;rh and on the following roll call vote: AYES:Council Members Roa]rkan, Slith, Romero, Williams and Mayor Settle NOES:None ABSENT: None The foregoing resolution was adopted this 21st day of .Tarmayr , 1997. ATTEST: Mayor Allen Settle Bo i'eG*a C' C rk AJoe C' Attomey ATTACHMENT I Parks and Recreation Commission MINUTES City-County Library Conference Room tvi% Wednesday,August 7, 2002, 7:00 p.m. Q CALL TO ORDER: Chair Peter Dunan called the meeting to order at 7:01 p.m. ROLL CALL: Chair Peter Dunan, Commissioners Dan Buckshi, Jim Neville, and Bill Pyper. ABSENT: Commissioners Debbie Black and Teresa Larson. STAFF: Director Paul LeSage, Larry Tolson, Michael McGuire, and Cindy McDonald. PUBLIC COMMENT PERIOD: There was no public comment. CONSIDERATION OF MINUTES: The minutes of the June 5,2002 meeting were approved. 1. Volunteer of the Month The Volunteer of the Month presentation will be rescheduled to next month. 2. Presentation by Sarah O'Neill Sarah O'Neill, Cal Poly Landscape Architecture student, presented a site plan for Boci Ball and Sand Volleyball Courts in Emerson Park. Commission discussed the presentation and thanked Sarah for her time and effort. 3. Ludwick Center,Public Art Project. Michael McGuire,Engineering Division Michael McGuire presented artwork and discussed with the Commission the selected artist for the Ludwick Center Public Art project. The artist, Mark Jepson could not attend meeting. Commission approved the artist selection for the Ludwick Center. (Pyper/Neville; Clay dissenting. 4. Follow-up on in locating a Disc Golf Course in Sinsheimer Park Commission discussed locating a Disc Golf Course in Sinsheimer Park. The Commission approved the concept of a Disc Golf Course in Sinsheimer Park and directed staff to forward a request to the Joint Use Committee to provide $5,000 in Park Improvement funds for the project. (Buckshi/Clay, unanimous). C S-G Parks and Recreation Com1111ssion ATfA(, 3 Minutes for August 7, 2002 Page 2 5. Naming opportunity for 1341 Purple Sage Street City Park The Commission recommends to the City Council naming the park at 1341 Purple Sage Street to the Rodriguez Adobe Park. (Neville/Pyper, unanimous). 6. Naming opportunity: Batting Cages The Commission recommends to City Council naming the Sinsheimer Batting Cages to Michae4 M. Maino Batting Cages. Dr. Hollister, petitioner, was present. (Pyper/Clay, unanimous).�� O �T_ 7. Naming opportunity: Damon Garcia Sports Fields The Commission recommends to City Council that staff are to pursue field-naming op 'ties in exchange for significant financial contribution to the construction of the Damon Garcia Sports Fields. (Pyper/Clay, unanimous). 8. Director's Report ❖ 2003-05 Budget Process ❖ Follow-up on PAYS Program ❖ 1095 March Street park site ❖ Ongoing Capital projects 9. Staff Reports ❖ Recreation Programs—Linda Fitzgerald's report was distributed. ❖ Park Maintenance—Larry Tolson updated the Commission from Parks Division. 10. Committee Reports ❖ Jack House—Pyper ❖ Mayor's Youth Task Force—Dunan ❖ Golf—Clay ❖ Damon-Garcia Sports Fields—Dunan 11. Communications None. 12. Adjourned The meeting was adjourned at 8:33pm. CS 7 council MeeriU Dsle^//7 a j AclenaA RepoRt " C I TY OF SAN LU IS O B I S P O FROM: Wendy George,ACAO ~ 0 Prepared By: Shelly Stanwyck,Economic Development Manager SUBJECT: CONSULTANT SERVICES AGREEMENT FOR THE SAN LUIS OBISPO MARKETPLACE PROJECT CAO RECOMMENDATION 1) Approve an agreement with Allan D. Kotin and Associates to perform consulting services during negotiations with SC Properties, LLC. regarding their proposed project on the Dalidio Farm in an amount not to exceed $20,000 2) Approve an agreement with Allan D. Kotin and Associates to perform an update of an economic impact study of SC Properties, LLC's proposed project on the Downtown (the "Kotin Study") in an amount not to exceed $30,000 and to be reimbursed by SC Properties, LLC 3) Approve an agreement with SC Properties, LLC for the reimbursement of costs associated with the update of the Kotin Study. DISCUSSION Background A proposed project for development of the Dalidio Farm, the San Luis Marketplace, was originally submitted for processing by the City, but the applicant eventually took a revised version of the project to the County, which it could do since the property is not yet annexed to the City. Believing that development of the Dalidio Farm should most appropriately take place in the City, on May 21, 2002, Council authorized Vice Mayor Marx to send a letter requesting that the Board of Supervisors direct the project back to the City for further work and processing. As a result, on June 4, 2002,the Board of Supervisors put the proposed project's application to the County on hold, and directed the applicant to work with the City instead. Subsequently, SC Properties, LLC has submitted an application with the City for the development of a portion of the Dalidio Farm (the proposed project). The City and the applicant must now bring resolution to some of the issues presented by the proposed project and complete the necessary development review process. In order to adequately address some of the more technical, economic issues, that surround this project, staff recommends that we retain the services of Allan D. Kotin and Associates ("Kotin'�. for two separate purposes: to represent the City in negotiations with the applicant and to update an earlier economic impact study City Representation Kotin represented the City during the negotiations of the Marketplace Project and his advocacy and GAProjects&Progr \Dalidio\Ccwcil Agenda Reports\Kotin Consulting Contractvldoc /// Council Agenda Report-Title of Report Page 2 economic analysis served as invaluable additions to the City team. Staff anticipates the need to review, and revise slightly, the original proposed Memorandum of Understanding for the Prado Road Interchange. Much of the work will require the expertise of Kotin to analyze the allocation of net new sales tax and the transfer effects of the project. Staff does not believe another contractor could perform this work as effectively or as economically, because of the specialized knowledge Mr. Kotin has gained during the many years he has worked on behalf of the City analyzing development on the Dalidio Farm. Attachment 1 is a proposed Consulting Services Agreement between the City and Allan D. Kotin and Associates for this service. The proposed agreement is on a time and materials basis and Mr. Kotin has given an estimate of$20,000 for his anticipated services. Update of the Kotin Study When the Marketplace Project was originally proposed for the Dalidio Farm, the City required the developer to fund an economic and fiscal impact study to analyze the impacts of the proposed project on the Downtown. In February 1999, the Economic and Fiscal Impact of Proposed San Luis Marketplace and Implications for Downtown Retail Activity was published and became known as the"Kotin Study". The Kotin Study provided detailed analysis of retail conditions in the City as well as regionally. The Study also provided a fiscal impact analysis describing the transfer effects of the project, existing sales leakage in the City, and strategies for the Downtown to respond to then market conditions. The Study also provided discussion about the anticipated costs of the Prado Road Interchange and analyzed a sales tax sharing arrangement between the developer and the City for those costs. Staff recommends updating the Kotin Study. It has been well over three years since the Study was published and the face of retail has or will change significantly in the City, with the addition of the project, SLO Promenade, the remodel of Madonna Plaza, and the Copelands Project. Neighboring communities such as Arroyo Grande,Atascadero and Paso Robles have also experienced significant retail changes and growth. The Downtown has also adopted a strategic plan. The proposed project must be examined within the context of these changed circumstances and in the context of the changes to the project itself. Staff further recommends that the applicant fund the costs of updating the Kotin Study as was the case with the original study. Attachment 2 is a proposed Consultant Services Agreement with Allan D. Kotin and Associates to perform the update of the Kotin Study. Attachment 3 is a proposed Reimbursement Agreement between the City and SC Properties, LLC. Included in both agreements is the scope of work for Allan D. Kotin and Associates, based on a time and materials basis. FISCAL IMPACT Funding for Kotin negotiation services are available in the Administration Department budget, primarily from carryover from the 2001-03 Economic Development budget. Staff further recommends that the applicant fund the costs associated with the update of the Kotin Study through the reimbursement agreement. GAProjcas&Progr \Dalidio\Council Agcnda ReponAKo[m ConsWrmg Conu=vldoc �L Council Agenda Report-Title of Report Page 3 ALTERNATIVES Not Contract with Allan D. Kotin and Associates and do not go forward with the update of the Kodn Study. Staff does not recommend this alternative. The work to be done by Allan D. Kotin and Associates is necessary so that Council will have sufficient information to make final decisions about the development of the Dalidio Farm. Attachments 1. Consultant Services Agreement(City Representation) 2. Consultant Services Agreement(Kotin Study Update) 3. Reimbursement Agreement G:\Projccts&Programv\Dalidio\Council Agnda Reports\Kotin Consulting ConvactvIdoc CG-3 ATTACHMENT CONSULTANT SERVICES AGREEMENT THIS AGREEMENT is made and entered into in the City of San Luis Obispo on this day of September 2002, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City,and ALLAN D. KOTIN and ASSOCIATES,hereinafter referred to as Contractor. WITNESSETH: WHEREAS, the City wants to secure financial consultation and representation during exclusive negotiation period with SC PROPERTIES,LLC;and WHEREAS, Contractor is qualified to perform this type of service and has submitted a proposal to do so which has been accepted by City. NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained,the parties hereto agree as follows: I. TERM. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above,until acceptance or completion of said services. 2. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, City will pay and Contractor shall receive therefore compensation in a total sum not to exceed$20,000. 3. CONTRACTOR'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, Contractor agrees with City to provide services as set forth in Exhibit A attached hereto and incorporated into this Agreement. Contractor further agrees to the contract performance terms as set forth in Exhibit B attached hereto and incorporated into this Agreement. 4. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Administrative Officer of the City. 5. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. ATTACHMENT 1 Agreement Page 2 6. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk,Lee Clerk, CMC City of San Luis Obispo 990 Palm Street San Luis Obispo,CA 93401 Contractor Allan D.Kotin Allan D.Kotin and Associates 949 S.Hope,Suite 200 Los Angeles, CA 90015 7. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: CITY OF SAN LUIS OBISPO,A Municipal Corporation By: City Clerk,Lee Price,CMC Mayor,Allen Settle APPROVED AS TO FORM: CONTRACTOR By: A tome eff ge en Allan D. Kotin and Associates, Allan D. Kotin CG-r RUM a 313.623.3841 213.623.3841 Fax 213.623.4231 Allan D. Kotin &Associates Real Estate Consulting for Public Private Joint Ventures 949 S. Hope Street,Suite 200, Los Angeles,CA 90015 akotin@adkotin.com July 25, 2002 Ms. Shelly Stanwyck Economic Development Director City of San Luis Obispo — 990 Palm Street San Luis Obispo, CA 93401 RE: PROPOSAL FOR GENERAL CONSULTING SERVICES Dear Shelly: At your request and separately from another consulting proposal for updating the San Luis Marketplace Impact Study, Allan D. Kotin (ADK&A) is pleased to submit this proposal for general consulting services. SCOPE AND BUDGET These consulting services would relate to ongoing negotiations for the San Luis Marketplace at Pr4o Road and 101 as well as limited continuing negotiations for the Court Street project to developed by Tom Copeland in Downtown San Luis Obispo. As in the past, the general authorization would also cover such other items, i.e. a possible auto mall, etc. as you may request from time to time. For these services I will bill you on an hourly basis at my recently modestly increased rate of$195 per hour. Subcontractors used to prepare computer runs, statistical analyses, etc will be billed at between $125 and $150 per hour. With regard to a total budget, any estimate at this time is necessarily an approximation or guess. I would recommend you authorize a budget of $20,000. I am not certain that this much will be needed to conclude the Marketplace and Court Street transactions. There may in fact be some economies insofar as travel expense and my trips up to visit you and briefings can cover both projects to the extent the Court Street effort requires my further participation. At the same time, it is likely that complications will set in and therefore what seems like a generous budget is probably an appropriate one to cover eventualities and avoid the necessity for going back for further authorizations. It is my understanding that under this contract and authorization I am to bill all the time other than the specific time devoted to the update of the San Luis Marketplace Impact Study which is covered under a separate proposal. ADDITIONAL CONTRACT PROVISIONS This scope of services does not cover professional services necessary in the event of litigation. Any A\StamwckConsultineProaosal-072502.doc RIM a Shelly Stanwyck July 25, 2002 Page 2 services necessary in that regard, including but not limited to preparation and testimony, will be billed at a higher rate, to be negotiated. These professional fees quoted do include the use of any subcontractors I retain to assist me analysis or data collection. Hourly fees do not include reimbursable expenses. Reimbursable expenses including data acquisition, parking, delivery, travel and other incidentals, which will be billed at cost with no markup within the overall authorization. You may terminate my services at any time by giving 30 days written notice. I may withdraw from the representatior of you at any time by giving similar written notice thereof to you. In either such event, I will be paid by you on a cost incurred to date basis, and you will reimburse me for reimbursable expenses advanced by me on your behalf. All bills are due and payable within 30 days and you understand that I am free to withhold services if you have any bills are unpaid after 45 days from receipt. You have up to 21 days from receipt of each bill to question or challenge in writing any aspects of my bills. Beyond that time you agree not to withhold payment based on any complaint onobjection to the bill. You agree that all information and data received from me, whether the same is presented orally or in writing, shall be solely for your use and is not to be relied upon by any third party or parties without prior written approval. I disclaim any and all responsibility to third parties deriving from the use of said information or data. ACCEPTANCE AND AUTHORIZATION If this proposal meets with your approval, please sign a copy of this proposal and return it as confirmation of the contract. If your agency or department uses its own contract form, you may include the scope and terms of this agreement by reference or attachment and forward your own document to me. I have long enjoyed my association with your city and hope with this continuation of the contract I can continue to help you. Respectfully submitted, X?Z;� Allan D. Kotin, Principal Allan D. Kotin & Associates ACCEPTED FOR : (Name of contracting party) BY: Name: Title: Signature: Date: CG-7 Exhibit B CONTRACT PERFORMANCE TERMS 77 Al 1. Business Tax. Contractor must have a valid City of San Luis Obispo business tax certificate prior to execution of the contract. Additional information regarding the City's business tax program may be obtained by calling(805) 781-7134. 2. Ability to Perform. Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out.and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations. _ 3. Laws to be Observed. Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances,regulations and adopted codes during its performance of the work. 4. Payment of Taxes. The contract prices shall include full compensation for all taxes which Contractor is required to pay. 5. Permits and Licenses. Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. 6. Safety Provisions. Contractor shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 7. Public and Employee Safety. Whenever Contractor's operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 8. Preservation of City Property. Contractor shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged as a result of Contractor's operations, it shall be replaced or restored at Contractor's expense. The facilities shall be replaced or restored to a condition as good as when the Contractor began work. 9. Immigration Act of 1986. Contractor warrants on behalf of itself and all sub-contractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 10. Contractor Non-Discrimination. In the performance of this work, Contractor agrees that it will not engage in, nor permit such sub-contractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 11. Work Delays. Should Contractor be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at the City's sole option, be extended for such periods as may be agreed upon by the City and the Contractor. Cl`� i Exhibit B:Contract Performance Terms Page B-2 12. Pavment Terms. The City's payment terms are 30 days from the receipt of an original invoice and acceptance by the City of the services provided by Contractor(Net 30). 13. Inspection. Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of Contractor are being performed in accordance with the requirements and intentions of this contract. All work done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such work shall not-relieve Contractor of any of its obligations to fulfill its contract requirements. 14. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor. 15. Interests of Contractor. Contractor covenants that it presently has no interest, and shall not acquire any interest direct or indirect or otherwise, which would conflict in any manner or degree with the performance of the work hereunder. Contractor further covenants that, in the performance of this work, no sub-contractor or person having such an interest shall be employed. Contractor certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, Contractor shall at all times be deemed an independent contractor and not an agent or employee of the City. 16. Hold Harmless and Indemnification. Contractor agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to Contractor's employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Contractor, and its agents, officers or employees, in performing the work or services herein, and all expenses of investigating and defending against same, provided, however, that Contractor's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 17. Year 2000 Compliance. The Contractor warrants that the goods or services provided to the City, including those provided through subcontractors, are "Year 2000 compliant." For the purpose of this contract; "Year 2000 compliant" means that goods or services provided to the City will continue to fully function, fault-free, before, at and after the Year 2000, without interruption or human intervention; and if applicable, any data outside of the date range 1990-1999, including leap years, will be correctly processed in any level of computer hardware or software, including, but not limited to, microcode, firmware, application programs, files and data bases.This warranty supersedes all warranty disclaimers or limitations, and all limitations on liability, otherwise provided by the Contractor. Upon request by the City, the Contractor will provide the City with a description of its Year 2000 compliance strategy, or statement of why this is not relevant to contract performance. 18. Contract Assignment. Contractor shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City.. 19. Termination. If, during the term of the contract, the City determines that Contractor is not faithfully abiding by any term or condition contained herein, the City may notify Contractor in writing of such defect or failure to perform; which notice must give Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. CG_ �' Exhibit B:Contract Performance Terms Page B-3 If Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to Contractor to said effect. Thereafter, neither party shall have any further duties, obligations,responsibilities, or rights under the contract. In said event, Contractor shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by Contractor as may be set forth in the Agreement payment schedule: compensation for any other work, services or goods performed or provided by Contractor shall be based solely on the City's assessment of the value of the work-in-progress in completing the overall workscope. The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall Contractor be entitled to receive in excess of the compensation quoted in its proposal. 20. Ownership of Materials. All original drawings,plan documents and other materials prepared by or in possession of Contractor as part of the work or services under these specifications shall become the permanent property of the City, and shall be delivered to the City upon demand. 21. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or assembled by Contractor as part of the work or services under these specifications shall be the property of City, and shall not be made available to any individual or organization by Contractor without the prior written approval of the City. 22. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or any other material in addition to what Contractor is required to famish in limited quantities as part of the work or services under these specifications, Contractor shall provide such additional copies as are requested, and City shall compensate Contractor for the costs of duplicating of such copies at the Contractor's direct expense. 23. Required Deliverable Products. Contractor will provide: a. Any documents or materials provided by Contractor will be reviewed by City staff and, where necessary, Contractor will respond to staff comments and make such changes as deemed appropriate. b. One camera-ready original, unbound, each page printed on only one side, including any original graphics in place and scaled to size,ready for reproduction. C. When computers have been used to produce materials submitted to the City as a part of the workscope, Contractor must provide the corresponding computer files to the City, compatible with the following programs whenever possible: • Word Processing Word • Spreadsheets Excel • Desktop Publishing Coreldraw, Pagemaker • Computer Aided Drafting (CAD) AutoCad Exhibit B:Contract Performance Terms Page B-4 Computer files must be on 32", high-density, write-protected diskettes, formatted for use on IBM-compatible systems. Each diskette must be clearly labeled and have a printed copy of the directory. 24. Attendance at Meetings and Hearings. As part of the workscope and included in the contract price is attendance by the Contractor at a pre-agreed upon number of public meetings to present and discuss its findings and recommendations. Contractor shall attend as many "working" meetings with staff as necessary in performing workscope tasks at his normal billing rates. 25. Insurance. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor,its agents,representatives, employees, or sub-contractors. a. Minimum scope of insurance. Coverage shall be at least as broad as: • Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). • Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). • Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. • Errors and Omissions Liability insurance as appropriate to Contractor's profession. b. Minimum limits of insurance. Contractor shall maintain limits no less than: • General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. • Automobile Liability: $1,000,000 per accident for bodily injury and property damage. • Employer's Liability: $1,000,000 per accident for bodily injury or disease. • Errors and Omissions Liability: $1,000,000 per occurrence. C. Deductibles and self-insured retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other insurance provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: • The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special Exhibit B:Contract Performance Terms Page B-5 limitations on the scope of protection afforded to the City,its officers, official, employees,agents or volunteers. • For any claims related to this project, Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of Contractor's insurance and shall not contribute with it. • Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials,employees, agents or volunteers. — • Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. • Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty(30)days'prior written notice by certified mail,return receipt requested,has been given to the City. e. Acceptability of insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANII. f. Verification of coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. ATTACHMENT 2 CONSULTANT SERVICES AGREEMENT FOR ECONOIMC STUDY UPDATE —771 THIS AGREEMENT is made and entered into in the City of San Luis Obispo on this day of September 2002, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City,and ALLAN D. KOTIN and ASSOCIATES,hereinafter referred to as Contractor. WITNESSETH: WHEREAS, the City in connection with the proposed development of the Dalidio Property has requested an update and study of the economic impacts of said development on Downtown San Luis Obispo;and WHEREAS,Contractor is qualified to perform this type of service;has done so before,and has submitted a proposal to do so which has been accepted by City;and WHEREAS, the Applicant for said development has agreed to reimburse the City for the Contractor's costs and expenses related to this service in a manner and in amounts set forth in Economic Consultant Reimbursement Agreement. The Applicant's obligation to reimburse the City under that Agreement is to ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project Application NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained,the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above,until acceptance or completion of said services. 2. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, City will pay and Contractor shall receive therefore compensation in a total sum not to exceed$30,000. 3. CONTRACTOR'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, Contractor agrees with City to provide services as set forth in Exhibit A attached hereto and incorporated into this Agreement. Contractor further agrees to the contract performance terms as set forth in Exhibit B attached hereto and incorporated into this Agreement. 4. AMENDMENTS. Any amendment,modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Administrative Officer of the City. ATTACHMENT 2 Agreement Page 2 5. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 6. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage, prepaid by registered or certified mail addressed as follows: City City Clerk,Lee Clerk,CMC City of San Luis Obispo 990 Palm Street San Luis Obispo,CA 93401 Contractor Allan D. Kotin Allan D.Kotin and Associates 949 S.Hope,Suite 200 Los Angeles, CA 90015 7. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: CITY OF SAN LUIS OBISPO,A Municipal Corporation By: City Clerk,Lee Price,CMC Mayor,Allen Settle APPROVED AS TO FORM: CONTRACTOR <—Qw�hLvm�m� By: Atm f rg en Allan D.Kotin and Associates, Allan D.Kotin jr e�iy ATTACHMENT 2 � �Q 310. 20.0900 213.6623.3841 Fax 213.623.423t Allan D. Kotin &Associates Real Estate Consulting for Public Private Joint Ventures 949 S. Hope Street,Suite 200, Los Angeles, CA 90015 akotin@adkotin.com July 25, 2002 Ms. Shelly Stanwyck Economic Development Director City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 RE: PROPOSAL FOR UPDATE OF SAN LUIS MARKETPLACE IMPACT STUDY Dear Shelly: At your request and as a result of prior conversations, I am pleased to submit on behalf of Allan D. Kotin & Associates (ADK&A) a proposal to update in part a major study conducted by my predecessor firm PCR Kotin for your City. This study was entitled Economic Impact of Proposed San Luis Marketplace and Downtown Retail Strategy and was completed in the Summer of 1999. The study was undertaken in connection with a proposed financial reimbursement arrangement between the City San Luis Obispo and the developers of the Marketplace to assist in the financing of a major freeway interchange at Proto Road and Route 101. In the three year interim, a variety of changes have occurred in both the project itself and the surrounding environment that require an update of the study. An important element in the original study was a detailed inventory and analysis of retailing patterns in downtown coupled with a discussion of the impact of the proposed San Luis Marketplace on downtown. SCOPE AND BUDGET The proposed new study will update all elements of the original study except for the detailed inventory of downtown retailing and the focused recommendations on a downtown retail strategy. Subsequent to the completion of that study a downtown strategy has been developed by the Downtown Association which is in large part consistent with the recommendations of the earlier study and does not require updating. What is of particular concern to the City and to the downtown merchants is an update of the impact. Among the items to be specifically considered in the updated impact are the changing retail patterns in the Central Coast area and the bearing that they have on the project. In addition, and perhaps even more important, the reconfigured shopping center which now includes a Macy's store and a hotel but somewhat reduced shop space will have to be factored into the new analysis. The analysis will be conducted by Allan D. Kotin & Associates in conjunction with two subcontractors, one of whom worked as an employee on the earlier study. Dennis Wambem of Land Use Economics will update the prior work he did which involved extensive statistical analysis of retail volumes, leakage and the impact of both existing and proposed new shopping centers. C\Desktop Icons\FILES\S1o982\SlanAwckProposa1072502.doc Exhibit A -- ATTACHMENT ?. Shelly Stanwyck July 25, 2002 Page 2 A more sensitive "on the ground" assessment of the new retail configuration with Macy's and with other stores in the market area will be provided by Victor Grgas. Victor is a longtime associate and client of mine who recently left Forest City Development where he had been Director of Planning. He has a deep knowledge of different types of tenants and site characteristics and will supplement the work of Dennis Wambem in providing a retail developers sensitivity to some of the issues involved in the retail mix in downtown, at the Marketplace and elsewhere in the market area. The budget for this assignment through completion and presentation of an initial draft is currently estimated at $27.000. Based on our prior discussions, we recommend that you authorize a $30,000 budget to cover the eventuality of further discussions and revisions in response to comments by the City, Downtown or the developers of the Marketplace. Such comments might require either amplification of certain points or some further discussion of the transfer factor which will be a key element in the study. The study will require approximately four to five weeks to complete through a draft and presentation to the City.. We are prepared to commence upon your verbal authorization recognizing that the formal authorization of the contract may take a little bit longer. ADDITIONAL CONTRACT PROVISIONS This scope of services does not cover professional services necessary in the event of litigation. Any services necessary in that regard, including but not limited to preparation and testimony, ,will be billed at a higher rate, to be negotiated. These professional fees quoted do include the use of any subcontractors I retain to assist me analysis or data collection. This is based on a rate of$195 per hour for me and $125 per hour for each of my two subcontractors plus expenses at cost. You may terminate my services at any time by giving 30 days written notice. I may withdraw from the representation of you at any time by giving similar written notice thereof to you. In either such event, I will be paid by you on a cost incurred to date basis, and you will reimburse me for reimbursable expenses advanced by me on your behalf. All bills are due and payable within 30 days and you understand that I am free to withhold services if you have any bills are unpaid after 45 days from receipt. You have up to 21 days from receipt of each bill to question or challenge in writing any aspects of my bills. Beyond that time you agree not to withhold payment based on any complaint or objection to the bill. You agree that all information and data received from me, whether the same is presented orally or in writing, shall be solely for your use and is not to be relied upon by any third party or parties without prior written approval. I disclaim any and all responsibility to third parties deriving from the use of said information or data. CG'S ATTACHMENT 4d W U[�Y Shelly Stanwyck July 25, 2002 Page 3 ACCEPTANCE AND AUTHORIZATION If this proposal meets with your approval, please sign a copy of this proposal and return it`as confirmation of the contract. If your agency or department uses its own contract form, you may include the scope and terms of this agreement by reference or attachment and forward your own document to me. I enjoyed very much my association with your city in preparing the earlier study and regretted the apparent outcome that the project would not go forward. I welcome the opportunity to update my study in the hopes that this time the project will actually be built. Respectfully bmi Allan D. Kotin, Principal Allan D. Kotin & Associates ACCEPTED FOR : (Name of contracting party); BY: Name: Title: Signature: Date: ATTACHMENT 2 Exhibit B CONTRACT PERFORMANCE TERMS 1. Business Tax. Contractor must have a valid City of San Luis Obispo business tax certificate prior to execution of the contract. Additional information regarding the City's business tax program may be obtained by calling(805) 781-7134. 2. Ability to Perform. Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and.cornplete. the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations. _ 3. Laws to be Observed. Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes during its performance of the work. 4. Payment of Taxes. The contract prices shall include full compensation for all taxes which Contractor is required to pay. 5. Permits and Licenses. Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. 6. Safety Provisions. Contractor shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 7. Public and Employee Safety. Whenever Contractor's operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 8. Preservation of City Property. Contractor shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged as a result of Contractor's operations, it shall be replaced or restored at Contractor's expense. The facilities shall be replaced or restored to a condition as good as when the Contractor began work. 9. Immigration Act of 1986. Contractor warrants on behalf of itself and all sub-contractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 10. Contractor Non-Discrimination. In the performance of this work, Contractor agrees that it will not engage in, nor permit such sub-contractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation,or religion of such persons. 11. Work Delays. Should Contractor be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs,then the time of completion may, at the City's sole option. be extended for such periods as may be agreed upon by the City and the Contractor. arrActiMENr 2 Exhibit B:Contract Performance Terms Page B_2 12. Payment Terms. The City's payment terms are 30 days from the receipt of an original invoice and acceptance by the City of the services provided by Contractor(Net 30). 13. Inspection. Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of Contractor are being performed in accordance with the requirements and intentions of this contract. All work done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements. 14. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor. 15. Interests of Contractor. Contractor covenants that it presently has no interest, and shall not acquire any interest direct or indirect or otherwise, which would conflict in any manner or degree with the performance of the work hereunder. Contractor further covenants that, in the performance of this work, no sub-contractor or person having such an interest shall be employed. Contractor certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, Contractor shall at all times be deemed an independent contractor and not an agent or employee of the City. 16. Hold Harmless and Indemnification. Contractor agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to Contractor's employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Contractor, and its agents, officers or employees, in performing the work or services herein, and all expenses of investigating and defending against same; provided, however, that Contractor's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 17. Year 2000 Compliance. The Contractor warrants that the goods or services provided to the City, including those provided through subcontractors, are "Year 2000 compliant." For the purpose of this contract, "Year 2000 compliant" means that goods or services provided to the City will continue to fully function, fault-free, before, at and after the Year 2000, without interruption or human intervention; and if applicable, any data outside of the date range 1990-1999, including leap years, will be correctly processed in any level of computer hardware or software, including, but not limited to, microcode, firmware, application programs, files and data bases. This warranty supersedes all warranty disclaimers or limitations, and all limitations on liability, otherwise provided by the Contractor. Upon request by the City, the Contractor will provide the City with a description of its Year 2000 compliance strategy, or statement of why this is not relevant to contract performance. 18. Contract Assignment. Contractor shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 19. Termination. If, during the term of the contract, the City determines that Contractor is not faithfully abiding by any term or condition contained herein, the City may notify Contractor in writing of such defect or failure to perform; which notice must give Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. 66 -19 ATTAC�9MEPo Exhibit B:Contract Performance Terms Page B-3 If Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to Contractor to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract. In said event; Contractor shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by Contractor as may be set forth in the Agreement payment schedule; compensation for any other work, services or goods performed or provided by Contractor shall be based solely on the City's assessment of the value of the work-in-progress in completing the overall workscope. The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall Contractor be entitled to receive in excess of the compensation quoted in its proposal. 20. Ownership of Materials. All original drawings,plan documents and other materials prepared by or in possession of Contractor as part of the work or services under these specifications shall become the permanent property of the City,and shall be delivered to the City upon demand. 21. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or assembled by Contractor as part of the work or services under these specifications shall be the property of City, and shall not be made available to any individual or organization by Contractor without the prior written approval of the City. 22. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or any other material in addition to what Contractor is required to furnish in limited quantities as part of the work or services under these specifications, Contractor shall provide such additional copies as are requested, and City shall compensate Contractor for the costs of duplicating of such copies at the Contractor's direct expense. 23. Required Deliverable Products. Contractor will provide: a. Any documents or materials provided by Contractor will be reviewed by City staff and, where necessary, Contractor will respond to staff comments and make such changes as deemed appropriate. b. One camera-ready original, unbound, each page printed on only one side, including any original graphics in place and scaled to size, ready for reproduction. C. When computers have been used to produce materials submitted to the City as a part of the workscope, Contractor must provide the corresponding computer files to the City, compatible with the following programs whenever possible: • Word Processing Word • Spreadsheets Excel • Desktop Publishing Coreldraw, Pagemaker • Computer Aided Drafting (CAD) AutoCad Cho- Zo ATTACHMENT 2 Exhibit B:Contract Performance Terms Page B-4 Computer files must be on 36", high-density, write-protected diskettes, formatted for use on IBM-compatible systems. Each diskette must be clearly labeled and have a printed copy of the directory. 24. Attendance at Meetings and Hearings. As part of the workscope and included in the contract price is attendance by the Contractor at a pre-agreed upon number of public meetings to present and discuss its findings and recommendations. Contractor shall attend as many "working" meetings with staff as necessary in performing workscope tasks at his normal billing rates. 25. Insurance. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents,representatives, employees,or sub-contractors. a. Minimum scope of insurance. Coverage shall be at least as broad as: • Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). • Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). • Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. • Errors and Omissions Liability insurance as appropriate to Contractor's profession. b. Minimum limits of insurance. Contractor shall maintain limits no less than: • General Liability: $1;000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. • Automobile Liability: $1,000,000 per accident for bodily injury and property damage. • Employer's Liability: $1,000,000 per accident for bodily injury or disease. • Errors and Omissions Liability: $1,000,000 per occurrence. C. Deductibles and self-insured retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d. Other insurance provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain,the following provisions: • The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special C(o ./ ATTACHMENT 2 Exhibit B:Contract Performance Terms Page B-5 limitations on the scope of protection afforded to the City, its officers, official, employees,agents or volunteers. • For any claims related to this project, Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees,agents or volunteers shall be excess of Contractor's insurance and shall not contribute with it. • Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. — • Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. • Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty(30)days'prior written notice by certified mail,return receipt requested,has been given to the City. e. Acceptability of insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANTI. f. Verification of coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. ATTACHMENT 3 ECONOMIC CONSULTANT REIMBURSEMENT AGREEMENT This Reimbursement Agreement ("Agreement") is made this I I`h day of August 2002, by and between the City of San Luis Obispo, a municipal corporation and Charter city (the "City' and SC Properties, LLC (the"Applicant"). RECITALS This Agreement is made with respect to the following facts: A. The Applicant is the intended developer of that certain real property located within the County of San Luis Obispo, California, generally described as the Dalidio Property, Assessor's Parcel Nos: . This property constitutes the project site and is hereinafter referred to as the "Property" for the purposes of this Agreement. B. The Applicant is contemplating the development of the Property as a mixed-use retail, office, tourist and residential center. The Applicant has submitted applications for various discretionary land use approvals for the development of the Property. C. To provide the City with fiscal services and information necessary to the City's review process concerning the development of the Property and its impacts on Downtown San Luis Obispo, it is necessary for the City to retain the services of an economic consultant ("Consultant"). D. As a condition to the City's completion of the review process, the Applicant has agreed to reimburse the City for the Consultants' costs and expenses related to the City's review process in the manner and amounts set forth in this Agreement. The Applicant's obligation to reimburse the City under this Agreement is to ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project Application. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, City and Applicant agree as follows: 1. Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon which the City and the Application have entered into this Agreement. The City and the Applicant each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 2. City to Retain Consultants. As a necessary and indispensable part of its fact finding process relating to the review of the Applicant's proposed uses of the Property, the City may retain, by means of contract ("Consultant Contract") in its reasonable and sole discretion, the services of the Consultant set forth in Section 4 of this Agreement to provide such economic consulting as the City may deem GlSlafr Slatwyck�ABrttmcrosm an cotmIt ranib grmt_08W0'.Oaa I C&—U ATTACHMENT 3 necessary in its sole discretion. The identity of the Consultant employed shall be as determined by the City in its reasonable and sole discretion. The presently contemplated scope of work of . the Consultant is attached hereto as Exhibit A. The City reserves the right, in its reasonable and sole discretion, to amend the scope of work as it deems necessary and appropriate where such amendments are reasonably necessary and related to the City's proper review and consideration of the Applicant's Project. The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under this Agreement, the Consultant selected by the City shall be the contractor exclusively of the City and not of the Applicant. Except for those disclosures required by law including, without limitations, the Public Records Act, all conversations, notes, memoranda, correspondence, and other forms of communication by and between the City and the Consultant shall be, to the extent permissible by law,privileged and confidential and not subject to disclosure to the Public. The Applicant agrees that it shall have no claim to, nor shall it assert any right in any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the Consultant pursuant to the Consultant Contract. The final study will constitute a public record and will be made available to the applicant upon request. City shall include in each of the Consultant Contract a termination provision authorizing the City to, upon short notice, terminate the contract without cause by sending written notice of termination to the Consultant. Applicant understands that it will not be a third party beneficiary to City's contract with Consultant. 3. Applicant to Cooperate with Consultant. The Applicant agrees to cooperate in good faith with the Consultant. The Applicant agrees that it will instruct its agents, employees, consultants, contractors and attorneys to reasonably cooperate with the Consultant and to provide all necessary documents or information reasonably requested of them by the Consultant; provided, however, that the foregoing shall not require the disclosure of any documents or information of the Applicant which by law is privileged,proprietary, confidential, or exempt from disclosure under the Public Records Act. 4. City's Preliminary Selection of Consultant. The City has preliminarily decided to retain the following as Consultants pursuant to this Agreement: (A) Economic Consultant—Exhibit A The Applicant agrees that the City may select other Consultants to replace the Consultant preliminarily identified above and may do so without consulting with the Applicant or obtaining the Applicant's approval. The City shall notify the Applicant of the need for any additional Consultants and shall amend this Agreement to include the additional Consultants. If the Applicant disagrees with the City's need to retain additional Consultants, then the Applicants sole and exclusive remedy will be to terminate this Agreement pursuant to Section 9, subject to the Applicant's obligation to reimburse the City for all Consultants Costs incurred by the City prior to the date of termination, whether or not yet paid by the City to the applicable Consultant not to exceed the reimbursement amount set forth in Paragraph 5. Applicant understands that such termination will relieve the City of further obligation to process its application. G.%SteR%tdjl"cbAgcauutu\ccun commit minib nymnt 080707,me 2 /[ Cfj-.ZrT ATTACHMENT 3 5. Applicant's Reimbursement of Consultant Costs, Expenditures and Administrative Fees. The Applicant shall reimburse the City for one hundred percent (100%) of the actual costs, expenditures and administrative fees incurred by the City relative to the Consultant Contract ("Consultant Costs"), as specified in the Consultant's Exhibit, not to exceed $30,000.00. 6. Payment of Consultant Costs and Fees. City shall not be required to advance its own funds to pay Consultant. City shall invoice Applicant on a monthly basis for Consultant Costs, and Applicant shall thereafter promptly deposit within thirty(30) days sufficient funds with City to enable City to make timely payment to Consultant pursuant to the Consultant's contract with City. Within fifteen(15) days following receipt of written demand therefore by the Applicant, the City shall provide the Applicant with such reasonable documentation as the Applicant may request to substantiate any demands for payment. 7. City to Retain Absolute Discretion. The Applicant acknowledges and agrees that notwithstanding the Applicant's reimbursement obligations under this Agreement, the City is not obligated to approve any or all of the proposed uses or permits for the Property, to approve any environmental documents or general plan or municipal code amendments which may be required for any of the uses contemplated for the Property. The Applicant warrants and represents that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve any proposed use of the Property. The Applicant understands that there may be numerous legislative and quasi- judicial decisions to be made by the City with regard to the development of the Property; that all such decisions of the City with regard to the Property and the contemplated uses of the Property will be made only after compliance with all the City's statutory and other legal obligations and after considering all appropriate information and evidence; and that such evidence may cause the City to disapprove any or all of the contemplated uses of the Property. Notwithstanding anything in this Agreement to the contrary,the City retains all authority and discretion granted to it by law to approve, disapprove or modify any of the proposed uses of the Property. The Applicant further understands that the City shall not be bound by any recommendations or conclusions reached by the Consultants and that the City may accept or reject, in whole or in part, any such recommendations or conclusions that the City, in its reasonable and sole discretion, deems to be unreasonable or contrary to the City's land use ordinances and regulations or State statutes or regulations. 8. Term. The term of this Agreement shall commence on August 1, 2002, and shall terminate when all work required by each Consultant Contract has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Consultant Costs, whether or not paid by the City to a Consultant prior to the date of termination. The Applicant's obligation to reimburse the City as provided in this Agreement shall survive the termination of this Agreement pursuant to this Section 8. G.VSwIRSlmwyckWRecwmutaon conwll tantb agmt_030701 dm ATTACHMENT 3 9. Early Termination. For good cause, the City may terminate this Agreement prior to the term set forth in Section 8 above, without cost or liability to the City,upon thirty (30) days prior written notice to the Applicant. The Applicant, upon thirty (30) days' prior written notice, may, in its reasonable and sole discretion, terminate this Agreement prior to the end of the term set forth in Section 8 above, provided, however, that the Applicant has satisfied all of its obligations under this Agreement to date of termination regarding reimbursement to the City of Estimated Consultants.. . Costs and, furthermore, that the Applicant has given City written notice withdrawing its application(s) for the Project. — Within two (2) City working days following either the City's decision to terminate this Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate this Agreement, the City shall notify the Consultant and instruct them to cease work under the Consultant Contract. The Consultant shall be instructed to bill the City for any work completed prior to the date of termination of the Consultant Contract. 10. Remedies Upon Default. An event of default shall be deemed to exist upon the occurrence of all of the following: (a) Either the City or the Applicant has,without legal justification or excuse, breached any one or more of its obligations under this Agreement; and (b) The nondefaulting party has sent written notice to the party claimed to be in default, specifying the default and what actions the nondefaulting party asserts should be taken to remedy the default; and (c) The party claimed to be in default has not, within ten (10) days following receipt of the written notice described above, either corrected the default or taken actions, reasonably satisfactory to the nondefaulting party, to remedy the default within a reasonable period of time, but in no event longer than thirty(30) days after receipt of the written notice described in (b) above. Following an event of default, the nondefaulting party may exercise any and all remedies available to it pursuant to this Agreement, or at law or in equity, including,without limitation, instituting an action for damages, injunctive relief, or specific performance. 11. Nonwaiver of Rights or Remedies. The failure of a party to exercise any one or more of its rights or remedies under this Agreement shall not constitute a waiver of that party's right to enforce that right or seek that remedy in the future. No course of conduct or act of forbearance on any one or more occasions by any party to this Agreement shall preclude that party from asserting any right to remedy available to it in the future. No course of conduct or act of forbearance on any one or more occasions shall be deemed to be an implied modification of the terms of this Agreement. a�sWmsunwy<A�ngrcanauuamCOu Ii relum aE it-Oa Mdm 4 I-/ /� ATTACHMENT 3 12. Assignability. This Agreement may not be assigned by either party without the prior and express written consent of the other party, which consent shall not be unreasonably withheld. In determining whether to approve a request by the Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee. 13. No Oral Modifications. — This Agreement represents the entire understanding of the City and the Applicant and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified only by a writing signed by the authorized representatives of both the City and the Applicant. 14. Binding Upon Successors. This Agreement and each of its terms shall be binding upon the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 15. Legal Challenges_ Nothing herein shall be construed to require City to defend any third party claims and suits challenging any action taken by the City with regard to any procedure or substantive aspect of the City's approval of development of the Property, the environmental process, or the proposed uses of the Property. The Applicant may, however, in its sole and absolute discretion appear as real party in interest in any such third party and action or proceeding. If the City defends such action or proceeding, the Applicant shall be responsible to reimburse the City for whatever reasonable legal fees and costs, in their entirety may be incurred by the City in defense of such action or proceeding. The City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate. Applicant may, at any time, notify City in writing of its decision to terminate such reimbursement obligation and, thereafter, in the event that the City decides to continue the defense of such third party action or proceeding, Applicant shall have no further obligation to reimburse City for City's attorneys' fees and costs. Applicant shall reimburse City in the event of any award of Court Costs or attorney fees is made against City in favor of any third party challenging either the sufficiency of an environmental impact report or the validity of the City's approval of the Application. 16. Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal aid equitable remedies available to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration of costs and expert witness fees, including actual costs and attorneys' fees on appeal. G1SulAStamvyckUgrcemrnskxmi cnnmli rcimb j6mm108070.dm 5 C6•,27 ATTACHMENT 3 17. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of San Luis Obispo, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of San Luis Obispo, California. The City and the Applicant each consent to the personal jurisdiction of the court in any such action or proceeding. 18. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of each and every action required pursuant to this Agreement. 19. Covenant of Further Assurances. The City and the Applicant shall take all other actions and execute all other documents, which are reasonably necessary to effectuate this Agreement. 20. Interpretation. The City and the Applicant agree that this Agreement is the product of mutual negotiations and is an arms-length transaction. Each party has negotiated this Agreement with the advice and assistance of legal counsel of its own choosing. It is further agreed that the terms of this Agreement shall be construed in accordance with the meaning of the language and shall not be construed for or against either party by reason of authorship and the rule that ambiguities in a document shall be construed against the drafter of the document shall have no application to this Agreement. In construing and interpreting this Agreement, the finder of fact shall give effect to the mutual intention of the City and the Applicant, notwithstanding such ambiguity, and may refer to the facts and circumstances under which this Agreement is made and such other extraneous evidence as may assist the finder of fact in ascertaining the intent of the City and the Applicant. 21. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision maybe severed from the Agreement and the remainder of the Agreement may be enforced in its entirety. 22. Headings. The headings of each section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each section. 23. Representations of Authority. Each party signing this Agreement on behalf of a party which is not a natural person hereby represents and warrants to the other party that all necessary legal prerequisites to that G:�SwlhSmuwyckwgcrncna�ccun c.a.h 6.,ba t nsmo2.d., 6 Cb-2�' ATTACHMENT 3 party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the party on whose behalf he or she signs. 24. Notices. Notices required under this Agreement shall be sent to the following: If to the City: City of San Luis Obispo Attn: City Administrative Officer 990 Palm Street San Luis Obispo, CA 93401-3249 Facsimile No. (805) 781-7109 If to the Applicant: San Luis Obispo Marketplace Associates, LLC c/o SC Properties, LLC 510 S..Grand Avenue, Suite 300 Glendora, CA 91741 Attn: Bill Bird Facsimile No. (626) 963-5930 Notices given pursuant to this Agreement shall be deemed received as follows: (a) If sent by United States Mail— five(5) calendar days after deposit into the United States Mail, first class postage prepaid. (b) If by facsimile—upon transmission and actual receipt by the receiving party. (c) If by express courier service or hand deliver—on the date of receipt by the receiving party. The addresses to notices set forth in this Section 24 may be changed upon written notice of such change to either the City or the Applicant, as appropriate. G'.�SuIRSianwycNAgrtcmcoukcan causvll rciwb ugm080702duc 7 ( 4 �� - . ATTACHMENT 3 25. Days. Unless otherwise specified to the contrary, "days" in this Agreement shall mean calendar, not business days. Dated: CITY OF SAN LUIS OBISPO A Municipal Corporation(the "City") By: - Mayor Allen Settle ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Dated San Luis Obispo Marketplace Associates, LLC By SC Properties, LLC By: GAS1aMranw,ck%A a amutaon co=IL reim0 apm�08070_d �' ��—30 1 RDIGR 310.820.0900 213.623.3841 Fax 213.623.4231 Allan D. Kotin &Associates Real Estate Consulting for Public Private Joint Ventures 949 S. Hope Street, Suite 200, Los Angeles, CA 90015 akotin@adkotin.com July 25, 2002 Ms. Shelly Stanwyck Economic Development Director City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 RE: PROPOSAL FOR UPDATE OF SAN LUIS MARKETPLACE IMPACT STUDY Dear Shelly: At your request and as a result of prior conversations, I am pleased to submit on behalf of Allan D. Kotin & Associates (ADK&A) a proposal to update in part a major study conducted by my predecessor firm PCR Kotin for your City. This study was entitled Economic Impact of Proposed San Luis Marketplace and Downtown Retail Strategy and was completed in the Summer of 1999. The study was undertaken in connection with a proposed financial reimbursement arrangement between the City San Luis Obispo and the developers of the Marketplace to assist in the financing of a major freeway interchange at Proto Road and Route 101. In the three year interim, a variety of changes have occurred in both the project itself and the surrounding environment that require an update of the study. An important element in the original study was a detailed inventory and analysis of retailing patterns in downtown coupled with a discussion of the impact of the proposed San Luis Marketplace on downtown. SCOPE AND BUDGET The proposed new study will update all elements of the original study except for the detailed inventory of downtown retailing and the focused recommendations on a downtown retail strategy. Subsequent to the completion of that study a downtown strategy has been developed by the Downtown Association which is in large part consistent with the recommendations of the earlier study and does not require updating. What is of particular concern to the City and to the downtown merchants is an update of the impact. Among the items to be specifically considered in the updated impact are the changing retail patterns in the Central Coast area and the bearing that they have on the project. In addition, and perhaps even more important, the reconfigured shopping center which now includes a Macy's store and a hotel but somewhat reduced shop space will have to be factored into the new analysis. The analysis will be conducted by Allan D. Kotin & Associates in conjunction with two subcontractors, one of whom worked as an employee on the earlier study. Dennis Wambem of Land Use Economics will update the prior work he did which involved extensive statistical analysis of retail volumes, leakage and the impact of both existing and proposed new shopping centers. C:\Desktop Icons\FILES\Slo982\StanKryckProposa1072502.doc Exhibit A EON ap Shelly Stanwyck July 25, 2002 Page 2 A more sensitive "on the ground" assessment of the new retail configuration with Macy's and with other stores in the market area will be provided by Victor Grgas. Victor is a longtime associate and client of mine who recently left Forest City Development where he had been Director of Planning. He has a deep knowledge of different types of tenants and site characteristics and will supplement the work of Dennis Wambem in providing a retail developers sensitivity to some of the issues involved in the retail mix in downtown, at the Marketplace and elsewhere in the market area. The budget for this assignment through completion and presentation of an initial draft is currently estimated at $27.000. Based on our prior discussions, we "recommend that you authorize a $30,000 budget to cover the eventuality of further discussions and revisions in response to comments by the City, Downtown or the developers of the Marketplace. Such comments might require either amplification of certain points or some further discussion of the transfer factor which will be a key element in the study. The study will require approximately four to five weeks to complete through a draft and presentation to the City. We are prepared to commence upon your verbal authorization recognizing that the formal authorization of the contract may take a little bit longer. ADDITIONAL CONTRACT PROVISIONS This scope of services does not cover professional services necessary in the event of litigation. Any services necessary in that regard, including but not limited to preparation and testimony, will be billed at a higher rate, to be negotiated. These professional fees quoted do include the use of any subcontractors I retain to assist me analysis or data collection. This is based on a rate of$195 per hour for me and $125 per hour for each of my two subcontractors plus expenses at cost. Ycu may terminate my services at anv time by giving 30 days written notice. I may withdraw from the representation of you at any time by giving similar written notice thereof to you. In either such event, I will be paid by you on a cost incurred to date basis, and you will reimburse me for reimbursable expenses advanced by me on your behalf. All bills are due and payable within 30 days and you understand that I am free to withhold services if you have any bills are unpaid after 45 days from receipt. You have up to 21 days from receipt of each bill to question or challenge in writing any aspects of my bills. Beyond that time you agree not to withhold payment based on any complaint or objection to the bill. You agree that all information and data received from me, whether the same is presented orally or in writing, shall be solely for your use and is not to be relied upon by any third party or parties without prior written approval. I disclaim any and all responsibility to third parties deriving from the use of said information or data. Cd -�L Shelly Stanwyck July 25, 2002 Page 3 ACCEPTANCE AND AUTHORIZATION If this proposal meets with your approval, please sign a copy of this proposal and return it`as confirmation of the contract. If your agency or department uses its own contract form, you may include the scope and terms of this agreement by reference or attachment and forward your own document to me. I enjoyed very much my association with your city in preparing the earlier study and regretted the apparent outcome that the project would not go forward. I welcome the opportunity to update my study in the hopes that this time the project will actually be built. Respectfully Wbmi Allan D. Kotin, Principal Allan D. Kotin & Associates ACCEPTED FOR : (Name of contracting party); BY: Name: Title: Signature: Date: