3. High Level Retail I Office Analysis: utilize ESRI and sales tax data to analyze sales at retail establishments in the area, retail occupancy and rent rates to understand the health of retail, restaurant and entertainment market, plus the spending potential of proposed new residents to determine the supportable long-term demand. Use Costar to analyze office vacancy, absorption and rent rates,
4. Hotel Study- Utilize STR data on regional hotel vacancy and room rate trends for different categories of hotel types (Upscale / Upper Midscale etc) to determine most likely brands that fit Eastvale demographic/economic position. Data will also be used to estimate room rates, occupancy rates and room demand in the City.
5. Tenant Mix - Kosmont will utilize Placer.ai Void Analysis , as well as other City data sources to examine the fit of various retail tenants based on local demographics and their locations in other competitive centers, to determine the near-term and longer term demand by those tenants suitable to the City's vision for Downtown Eastvale.
6. SWOT Analysis - Based on the information gathered, Kosmont will summarize office and retail conditions with a Strengths, Weaknesses, Opportunities, and Threats ("SWOT") analysis to identify barriers and opportunities for proposed new development and suggest development phasing strategies to reduce developer risk, and achieve City's vision.
7. Financial Feasibility I Pro Forma Considerations - Utilizing a high-level financial pro forma model, Kosmont will provide a more detailed examination of the retail/office/hotel components of potential project pro formas (land cost, hard costs, soft costs, projected operating revenue and expenses, cap rates, debt financing costs, equity requirements, return on investment) and how developers will likely evaluate commercial investment opportunity.
This analysis will include a review of the sensitivity of various economic assumptions on supportable land value, developer profit expectations and any likely funding "gap". The goal is to illustrate the importance of balancing financial risk and potential return in making private investment decisions.
8. Weekly Check-in: Kosmont will participate in brief weekly check-in virtual meetings with City, as appropriate to address any issues that arise in the most expeditious manner.
9. Memorandum Report: Kosmont will prepare Analysis report summarizing tenant demand and feasibility findings and potential strategies to address funding gap, data sources, key assumptions and methodology utilized for the Analysis.
10. Council Presentation - Kosmont will be available to present the Analysis to City Council in a Study Session.
DEVELOP RFQ/RFP
Kosmont has prepared the following Tasks to identify qualified developer partners.
11. Review Option Agreements and Special Land Use Restriction Agreements between City and TNHC.
KOSMONT COMPANIES
1601 N. Sepulveda Blvd. #382, Manhattan Beach, CA 90266 I ph 424.297.1070 I www.kosmont.com 186
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188
City of Eastvale
Development
Support
Scope of Services
November 1, 2023
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Scope of Services
CBRE is excited to partner with the City of Eastvale (“City”) on the development of a soon to be City controlled asset into a civic and commercial lifestyle center that supports economic development and growth. Detailed below are the objectives and requirements for this Scope of Services.
CBRE has assembled the appropriate team dedicated toward this project and each member of our team will be integral to the overall success in completing the objectives set forth herein. The team will be assigned to the project for the duration and will serve as the City’s real estate advisors.
CBRE Team:
Brian McDonald, First Vice President, Brokerage – Advisory & Transaction Walter Pagel, Senior Vice President, Brokerage – Advisory & Transaction Hannah Curran, Associate, Brokerage – Advisory & Transaction Jolene Coleman, Client Service Specialist, Brokerage – Advisory & Transaction The CBRE Network
Scope of Work Requirements
From notification to proceed, CBRE will complete all assigned tasks listed below; market the City and the site to garner interest from developers to submit proposals for the City’s Master Developer RFQ/RFP; and support the selected Master Developer to recruit the City’s desired type of project with the desired tenant mix for the civic and commercial lifestyle center.
The CBRE team will communicate bi-weekly with City of Eastvale’s Project Manager on all aspects of the work effort and request coordination assistance with the relevant stakeholders within the city.
The final deliverable will be a highest and best use analysis on the site such that the City can make an informed decision on how and when to proceed.
CBRE will conduct a developers workshop to present the findings of the technical analysis to gain insight and support of proposed concepts within the stakeholder community.
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Request For Qualification / Request For Proposal Solicitation
In support of the City of Eastvale Project Manager and Kosmont, CBRE will periodically provide feedback to the formal RFQ/RFP documents to market the development site locally, regionally, and nationally. Kosmont will be assigned the lead role to create the documents. Throughout this phase CBRE will act as the City’s technical adviser and will be communicating directly to prospective commercial developers.
Development Opportunity Promotion: Market the City and the commercial core site to garner interest from developers to submit proposals for the City's Master Developer RFQ/RFP.
This includes the creation of marketing materials such as brochures, email blasts, posting on developer forums and websites, and social media postings.
CBRE Network: Provide the City with access to CBRE’s vast network of potential developers.
Coordinate and facilitate no more than five (5) meetings between potential master developers and the City to introduce staff, make presentations, and solicit interest to submit proposals prior to release of the RFQ/RFP. Meetings with developers should be in-person when feasible.
Upon release of the RFQ/RFP, cast a wide net to all potential developers within CBRE’s network.
Champion the City: Act as the City's champion for the project, serve as the City’s technical adviser, and advocate directly with prospective master developers on behalf of the City.
Developer Workshops: Coordinate and facilitate at least two (2) developers’ workshop to present the findings of the technical analysis and gain insight and support of proposed concepts within the development community.
Regular Communication: The CBRE team will communicate bi-weekly with City of Eastvale's project manager on all aspects of the work effort and request coordination assistance with the relevant stakeholders within the City.
Master Developer Selected
Once the Master Developer is selected and approved by the Eastvale City Council, CBRE will collaborate with the Master Developer to determine the desired tenant mix. The CBRE Team proposes to work with the Master Developer to assist them in pursuing and obtaining the desired tenants for the project.
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Pricing/Fees
The fee structure proposed is on a monthly basis with invoices over a 6-month term. A monthly invoice will be generated monthly for the $12,500 fixed fee, payable to CBRE.
Thank You
We look forward to working with you and achieving a successful outcome for the City. If there are any questions or concerns regarding this pricing model, please don’t hesitate to contact us. 192
CBRE ©2023 All Rights Reserved. All information included in this proposal pertaining to CBRE—including but not limited to its operations, employees, technology, and clients—are proprietary and confidential, and are supplied with the understanding that they will be held in confidence and not disclosed to third parties without the prior written consent of CBRE. This letter/proposal is intended solely as a preliminary expression of general intentions and is to be used for discussion purposes only. The parties intend that neither shall have any contractual obligations to the other with respect to the matters referred herein unless and until a definitive agreement has been fully executed and delivered by the parties. The parties agree that this letter/proposal is not intended to create any agreement or obligation by either party to negotiate a definitive lease/purchase and sale agreement and imposes no duty whatsoever on either party to continue negotiations, including without limitation any obligation to negotiate in good faith or in any way other than at arm’s length. Prior to delivery of a definitive executed agreement, and without any liability to the other party, either party may (1) propose different terms from those summarized herein, (2) enter into negotiations with other parties and/or (3) unilaterally terminate all negotiations with the other party hereto. CBRE and the CBRE logo are service marks of CBRE, Inc. All other marks displayed on this document are the property of their respective owners, and the use of such logos does not imply any affiliation with or endorsement of CBRE.
U
For more information
Brian McDonald
First Vice President
CBRE | Brokerage – Advisory & Transaction Services
909 418 2020
[email protected]
Walter Pagel
Senior Vice President
CBRE | Brokerage – Advisory & Transaction Services
949 725 8457
[email protected]
Hannah Curran
Associate
CBRE | Brokerage – Advisory & Transaction Services
949 725 8496
[email protected]
Jolene Coleman
Client Services Specialist
CBRE | Brokerage – Advisory & Transaction Services
949 725 8642
[email protected]
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AGREEMENT FOR SERVICES
[Downtown Eastvale Master Developer Consulting Services]
This Agreement for Services (“Agreement”) is entered into as of this ____ day of November 2023 by and between the City of Eastvale, a municipal corporation (“City”) and CBRE Inc., a Delaware corporation (“Contra ctor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by direct negotiati on, the performance of the services defined and described particularly in Section 2 of this Agreement.
B. Contractor, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. The Parties desire to formalize the se lection of Contractor for performance of those services defined and described particula rly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other c onsideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is fo r six (6) months commencing on the date that a Notice To Proceed (NTP) is issued to Contractor by City.
SECTION 2. SCOPE OF SERVICES.
Contractor agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
SECTION 3. ADDITIONAL SERVICES.
Contractor shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writin g in accordance with Section 26 “Administration and Implementation” or Sectio n 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
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SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed seventy five thousand dollars ($75,000.00), unless additional compensation is approved in writing in acco rdance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. (b) Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred dur ing the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), materials, equipment, supplies, and subcontractor cont racts. Travel costs are included within Contractor’s hourly labor rate and travel expenses shall not be separately billed. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of task performed and th e amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agr eement. In the event that no charges or expenses are disputed, the invo ice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be retu rned by City to Contractor for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. (d) Payment to Contractor for work perf ormed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when co mpleted. City shall reject or finally accept Contractor’s work within sixty (60) days after submitte d to City. City shall reject work by a timely written explanation, otherwise Contractor’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Contractor’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indem nification” and Section 17 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, dr awings, photographs, studies, surveys, reports, data, notes, co mputer files, files and other do cuments prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this 169195
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Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photogr aphs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Contractor in the course of providing the Services pu rsuant to this Agreement, Contractor’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
All final work product developed by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such final work pr oduct if paid for by the City. This provision specifically excludes Contractors’ work notes and drafts, which are owned by Contractor, not City.
SECTION 7. CONTRACTOR'S BOOKS AND RECORDS.
(a) Contractor shall maintain any and all documents and records demonstrating or relating to Contractor’s performance of t he Services. Contractor shall maintain any and all ledgers, books of account, invoices , vouchers, canceled checks, or other documents or records evidencing or relating to the Services, including expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in acco rdance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services pr ovided by Contractor pursuant to this Agreement. Any and all such documents or records shall be main tained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. In accor dance with California Government Code Section 8546.7, if the total compensation in Section 4 exceeds ten thousand dollars ($10,000.00), this Agr eement and the Contractor's boo ks and records related to this Agreement shall be subject to the examinat ion and audit of the Stat e Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
(b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspec tion, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed 170196
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upon, such documents and records shall be m ade available at Contractor’s address indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Contractor’s business, City may, by written request, require that custody of such documents or record s be given to the City. Access to such documents and records shall be gr anted to City, as well as to its successors-in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Contractor is and shall at all time s remain a wholly independent contractor and not an officer, employee or agent of City. Contractor shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise.
(b) The personnel performing the Servic es under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Contract or or any of Contractor’s personnel.
Contractor shall not at any time or in any manner represent that Co ntractor or any of Contractor’s personnel are in any manner officials, officers, or employees of City. (c) Neither Contractor, nor any of Contractor’s personnel shall obtain any rights to retirement, health care or any other benefits whic h may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor, its officers, employees, agents or subcontractors, may have to any such rights. Contractor’s indemnity obligations in Section 16 “Indemnification” of this Agreement incl ude the obligation to indemnify the City from and against any liability that may arise rela ted to claims that Contractor, its officers, employees, agents or subcontractors, are entitled to retirement, health care or any other benefits that accr ue to City employees. This provision shall survive the expiration or earlier termination of this Agreement.
SECTION 9. STANDA RD OF PERFORMANCE.
Contractor represents and wa rrants that it has the qua lifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and pr ofessional manner. Contractor s hall at all times faithfully, competently and to the best of its ability, exper ience and talent, perform all Services. In meeting its obligations under this Agreement, Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Contractor under this Agreement. In addition to the general standards of performance set forth this se ction, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Contractor’s work under this Agreement. Where there is a conflict between a general and a specific st andard of performance or performance criteria, the specific standard or criteria shall prevail over the general. 171197
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SECTION 10. COMPLIANCE WITH APPLI CABLE LAWS; PERMITS AND LICENSES.
Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Contractor shall obtain any and all licenses, permits and authorizations necessary to perform the Servic es set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equit y, as a result of any failure of Contractor to comply with this section.
SECTION 11. PREVAI LING WAGE LAWS
It is the understanding of City and Contractor that California prevailing wage laws do not apply to this Agreem ent because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated ther eunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, fa cilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Contractor shall not discrim inate, in any way, against any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, mari tal status, sex, gender, gender identity, gender expression, age, sexual or ientation, or military and veteran status in connection with or related to the performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U. S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of the Services, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 14. CONFLI CTS OF INTEREST.
(a) Contractor covenants that to the best of its know ledge neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner wit h the interests of City or which would in any way hinder Contractor’s performance of the Services. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Contractor agrees to at all times avoid conflicts of interest or the 172198
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appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City understands and acknowledges that Contractor is, as of the date of execution of this Agreemen t, independently involved in the performance of non-related services for other governmental agencies and pr ivate parties. Contractor is unaware of any stated position of City relative to such pr ojects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Contractor will perform non- related services for other governmental agencies and private Parties following the completion of the Services under this Agreem ent. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 15. CONFIDENTIAL INFORM ATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or al ready known to Contractor. C ontractor shall not release or disclose any such information or work produc t to persons or entities other than City without prior written authorization from the City Manager, exc ept as may be required by law.
(b) Contractor, its officers, employees , agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide dec larations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena if legally permitted to do so.
(c) If Contractor, or any officer, employ ee, agent or subcontractor of Contractor, provides any information or work product in vi olation of this Agreement, then City shall have the right to reimbursem ent and indemnity from Contra ctor for any damages, costs and fees, including reasonable a ttorney's fees, caused by or incurred as a result of Contractor’s conduct.
Contractor shall promptly notify City should Contractor , its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for document s, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Contractor or be pres ent at any deposition, hearing or similar proc eeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. Contractor shall not be held crimi nally or civilly liabl e under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a 173199
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Federal, State, or local governm ent official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
SECTION 16. INDEMNIFICATION.
(a) Indemnification for Professional Liab ility. Where the law establishes a professional standard of care for Contractor’s services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend (with counsel retained by Contractor) and hold harmless City and any and all of its offi cials, employees a nd agents (“Indemnified Parties”) from and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administrative pr oceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or th reatened, including reasonable attorneys’ fees and costs, court co sts, interest, defense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omi ssion of Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents or employees of Contractor, in the performance of professional services under this Agreement.
(b) Indemnification for Other than Profe ssional Liability. Other than in the performance of professional serv ices and to the full extent pe rmitted by law, Contractor shall indemnify, protect, defend (with counsel retained by Contractor) and hold harmless City, and any and all of its employees, offi cials and agents from and against any liability (including liability for claims , suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, ex penses or costs of any kind, whether actual, alleged or threatened, including reasonable attorneys’ fees and costs, court costs, interest, defense costs, and expert witness f ees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents or employees of Contractor. (c) Indemnification from Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every subcontractor or any other person or entity involv ed by, for, with or on behalf of Contractor in the performance of this Agreement naming the I ndemnified Parties as additional indemnitees. In the event Contractor fails to obtain such indemnity obligations from others as required herein, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Contractor and shall survive the termination of this Agreement or this section.
(d) City’s Negligence. The provisions of this section do not apply to claims occurring as a result of City’s sole negligence. The provisions of this section shall not 174200
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release City from liability arising from negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Contractor agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies sha ll be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Contractor agrees to provide City with copies of certificates evidencing coverages of the required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Contractor are material considerations for this Agreement. City has an interest in the qualif ications and capability of the persons and entities who will fulfill the duties and obligat ions imposed upon Contractor under this Agreement. In recognition of that interest, C ontractor shall not assi gn or transfer this Agreement or any portion of th is Agreement or t he performance of any of Contractor’s duties or obligations under this Agreement without t he prior written cons ent of the City.
Any attempted assignment shall be ineffect ive, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of th is Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Contractor, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 19. CONTINUITY OF PERSONNEL.
Contractor shall make ever y reasonable effort to ma intain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform t he Services prior to and during any such performance.
SECTION 20. TERMINAT ION OF AGREEMENT.
(a) City may terminate this Agreement, wit h or without cause, at any time by giving thirty (30) days written notice of termination to Contractor. In the event such notice is given, Contractor shall cease immediately all work in progress. (b) Contractor may terminate this Agreem ent for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Contractor or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Cont ractor, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Contractor or City, all property belonging exclusively to City which is in Contractor’s possession shall be returned to City. 175201
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Contractor shall furnish to City a final invoice for work performed and expenses incurred by Contractor, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice s hall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that Contractor is in def ault under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold a ll invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Contractor shall not be liabl e for damages, including liqui dated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Contractor. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Contractor in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be gi ven under this Agreement shall be in writing and shall be personally delivered, or sent by certif ied mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Eastvale
Gustavo Gonzalez, Community Development Director
12363 Limonite Ave., Suite 910
Eastvale, CA 91752
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To Contractor: CBRE, Inc.
Ian Britton
4141 Inland Empire Blvd., Suite 100
Ontario, CA 91764
Notice shall be deemed effective on the da te personally delivered or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into th is Agreement on behalf of the Party for whom he or she purports to sign. Each Part y hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions, and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representativ e. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Eastvale Municipal Code.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if it does not exceed the amount that may be approved administr atively pursuant to the East vale Municipal Code. The Parties agree that the requirem ent for written modifications cannot be waived and that any attempted waiver shall be void. The Cit y’s City Manager may, but is not required to, make minor amendments not affecting subst antive terms without further authorization from the City Council. The City Council her eby authorizes the Cit y Manager to execute any such amendments as required by this Agreement or that do not otherwise reduce City’s rights under this Agreement. All other amendments shall be approved by the City Council.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a 177203
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waiver of any other provisio n nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work by Contractor shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of Californi a. In the event of litigatio n between the Parties, venue in state trial courts shall lie excl usively in the County of Riversi de, California. In the event of litigation in a U.S. District Court, venue sha ll lie exclusively in the Central District of California, in Riverside.
SECTION 31. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or ot her proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with resp ect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Contractor and City prio r to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be in valid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 34. CON FLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
[SIGNATURES ON FOLLOWING PAGE]
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CITY OF EASTVALE
___________________________
Mark Orme
City Manager
ATTEST:
___________________________
Marc Donohue
City Clerk
APPROVED AS TO FORM
_______________________________
Erica Vega
City Attorney
CBRE, Inc.
Ian Britton
Senior Managing Director
11/2/2023
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EXHIBIT "A"
SCOPE OF SERVICES
CBRE Group, Inc. will provide the following Scope of Services:
Development Opportunity Promotion: Market the City and the commercial core site to garner interest from develop ers to submit proposals for the City's Master Developer RFQ/RFP. This includes the creation of marketing materials such as brochures, email blasts, posting on developer forums and websites, and social media postings.
CBRE Network : Provide the City with access to CB RE’s vast network of potential developers. Coordinate and facilitate no more than five (5) meetings between potential master developers and the Cit y to introduce staff, make presentations, and solicit interest to submit proposals prior to release of the RFQ/RFP. Meetings with developers should be in-person when feasible. Upon release of the RFQ/RFP, cast a wide net to all potential developers within CBRE’s network.
Team Collaboration : Work with city staff and othe r team consultants to share information and provide input on market studies, the RFQ/FRP, marketing materials, and other deliverables. It is understood that CBRE will support Kosmont as a consultant team member.
Champion the City: Act as the City's champion for the project, serve as the City’s technical adviser, and advocate directly with prospective master developers on behalf of the City.
Developer Workshops: Coordinate and facilitate at least two (2) developers’ workshop to present the findings of the technica l analysis and gain insight and support of proposed concepts within the development community.
Regular Communication : The CBRE team will communicate bi-weekly with City of Eastvale's project manager on all aspects of the work effort and request coordination assistance with the relevant stakeholders within the City. 180206
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EXHIBIT "B"
COMPENSATION
Compensation shall be on a retainer basis. Compensation shall be $12,500.00 monthly commencing on the date that a Notice To Proceed (NTP) is issued to Contractor by City. The monthly retainer amount shall be pro-rated for the first and last months based on the number of days for which Services were rendered. Total compensation shall not exceed $75,000.
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EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Contractor shall provide and maintain insurance, acceptable to the City, in full force and effe ct throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Se rvices by Contractor, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
Contractor shall prov ide the following scope and limits of insurance:
1. Minimum Scope of Insurance. Coverage shall be asfollows:
(1) Commercial General Liability . Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001).
(2) Automobile. Insurance Serv ices Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City.
(3) Workers’ Compensation. Workers' Compensation insurance as required by the Labor Code of State of California co vering all persons providing Services on behalf of the Contractor and all risks to such persons under this Agreement.
(4) Professional Liability. Professional liability insurance appropriate to the Cont ractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to Serv ices performed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Contractor’s services or the termination of this Agre ement. During this additional three (3) year period, Contractor shall annually and up on request of the City submit written evidence of this continuous coverage.
2. Minimum Limits of Insurance. Contractor shall maintain the following limits of insurance:
(1) Commercial General Liabi lity. $1,000,000 general aggregate for bodily injury, personal injury and property damage.
(2) Automobile. $1,000,000 per accident for bodily injury and property damage. A combined single limit policy with aggregat e limits in an amount of 182208
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not less than $2,000,000 shall be considered equi valent to the said required minimum limits set forth above.
(3) Workers' Compensation. Workers' Compensation as required by the Labor Code of the State of California of $1,000,000 per occurrence.
(4) Professional Liabilit y. $1,000,000 per occurrence.
B. Other Provisions. Insurance polic ies required by this Agreement shall contain the following provisions:
1. All Policies. Contractor shall pr ovide City with thirty (30) days’ prior written notice of any material change or canc ellation of any of t he coverages required hereunder.
2. Commercial General Liability and Automobile Liability Coverages.
(1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds to the extent of loss attributable to Contractor’s negligence, as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor; premises owned, occupied or used by Contra ctor; or automobiles owned, leased, hired or borrowed by Contractor.
(2) To the extent of loss attr ibutable to Contractor’s negligence, Contractor’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall in such instance apply in excess of, and not contribute with, Contractor’s insurance.
(3) Contractor’s insurance s hall 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.
(4) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writ ing, the insurer shall agree to waive all rights of subrogation against City, and its respective elected and appoi nted officers, officials, employees and agents for losses arising from work performed by Contractor. 183209
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C. Other Requirements. Contractor agrees to deposi t with City, at or before the effective date of this Agreement, certific ates of insurance necessary to satisfy City that the insurance provisions of this c ontract have been complied with. The City may require that Contractor furn ish City with copies of orig inal endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Contractor shall furnish cert ificates and endorse ments from each subcontractor identical to those Contractor provides.
2. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor’s liability hereunder nor to fulf ill the indemnification provisions and requirements of this Agreement.
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