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2006/01/10 City Council Resolution (22)RESOLUTION NO. 2006- 21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK, CALIFORNIA, APPROVING AN AGREEMENT FOR SERVICES BETWEEN THE CITY OF ROHNERT PARK AND KEYSER MARSTON ASSOCIATES FOR ASSISTANCE IN EVALUATING THE DEVELOPMENT ECONOMICS OF THE PROPOSED BROOKFIELD HOMES DEVELOPMENT (UNIVERSITY DISTRICT SPECIFIC PLAN) ON AN AS- NEEDED BASIS WHEREAS, City Staff is currently negotiating a Development Agreement for the portion of the University District Specific Plan that is controlled by Brookfield Homes; WHEREAS, during the negotiation process, the developer has noted certain Staff - recommended terms that they feel could negatively impact the feasibility of the project; WHEREAS, Staff requires the services of a consultant to provide a third -party evaluation of the project's economics and the ability of the developer to meet Staff's recommended terms on an as- needed basis; WHEREAS, Staff has requested that Keyser Marston Associates provide a proposal to perform this service WHEREAS, the City has received and reviewed a proposal from Keyser Marston Associates to provide a third -party evaluation of the project's economics and the ability of the developer to meet Staff's recommended terms on an as- needed basis; WHEREAS, the proponents for the University District Specific Plan would be responsible for funding any work per the proposal; WHEREAS, Staff has prepared an Agreement for Services between the City of Rohnert Park and Keyser Marston Associates regarding the as- needed work per the proposal; WHEREAS, the City Council of the City of Rohnert Park has reviewed and considered the information contained in the Staff Report and all relevant materials regarding the Agreement of Services between the City of Rohnert Park and Keyser Marston Associates. NOW THEREFORE BE IT RESOLVED, that the City Council does hereby approve said Agreement of Services and the City Manager is hereby authorized and directed to execute this agreement in substantially similar form to the attached agreement for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED on this 10th day of January , 2006, by the City of Rohnert Park City Council by the following vote: CITY OF ROHNERT PARK Mayor Tim smith BREEZE: AVE FLORES:AYE MACKENZIE:AYE VIDAK- MARTINEZ: AYE SMITH: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) AGREEMENT FOR SERVICES This Agreement is made and entered into this 10thday of January 2006, by and between the City of Rohnert Park, hereinafter referred to as the "City," and Keyser Marston Associates, hereinafter referred to as the "Consultant." WHEREAS, the City requires assistance of an outside consultant in evaluating the development economics of the proposed Brookfield Homes Development (University District Specific Plan) on an as- needed basis; and WHEREAS, the Consultant is qualified and experienced to provide such services. NOW, THEREFORE, said City and said Consultant for the considerations hereinafter set forth, mutually agree as follows: 1. SCOPE OF WORK. Consultant shall perform those services described as Tasks in the Scope of Work and Schedule of Performance attached as Exhibit "A" on an as- needed basis and within the time frames stated therein. 2. COORDINATION. Consultant shall assign Debbie M. Kern to personally participate in said project and to coordinate the activities of the Consultant. 3. COMPENSATION. A. City shall pay Consultant as compensation in full for such services and expenses at the rates set forth in the Standard Hourly Rates and Charges attached to the respective approved proposal, with the total sum not to exceed $40,000.00. The work shall be completed on an as- needed basis as determined by the City. Progress payments will be tied to completion of tasks so all payments are proportional to the work completed. B. Consultant- shall submit itemized monthly statements for work performed. City shall make any payment due within thirty (30) days after approval of the invoice by City. C. Payments due and payable to Consultant for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the City. In the event the City has not appropriated sufficient funds for payment of Consultant services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year; payment for additional work is conditional upon future City appropriation. 4. TERM_. The term of this Agreement shall be from the date of its execution until the completion of the work contemplated by this Agreement and its final acceptance by City unless terminated earlier as provided herein. 5. NOTICES. All notices, bills, and payments shall be made in writing and may be given by personal delivery or by mail. Notices, bills and payments sent by mail should be addressed as follows: TO CITY: COMMUNITY DEVELOPMENT DEPARTMENT CITY OF ROHNERT PARK 6750 COMMERCE BOULEVARD ROI-INERT PARK, CA 94928 TO CONSULTANT: KEYSER MARSTON ASSOCIATES 55 PACIFIC AVENUE MALL SAN FRANCISCO, CA 94111 ATTENTION: DEBBIE M. KERN and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices, bills and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills and payments are to be given by giving notice pursuant to this Paragraph. 6. AMENDMENT OF SCOPE OF WORK. City shall have the right to amend the Scope of Work of any approved proposal within the Agreement by written notification to the Consultant. In such event, the compensation and time of performance shall be subject to renegotiation upon written demand of either party to the Agreement_ Failure of the Consultant to secure City's written authorization for extra or changed work shall constitute a waiver of any and all right to adjustment in the contract price or time due, whether by way of compensation, restitution, quantum meruit, etc. for work done without the appropriate City authorization. 7. CITY'S RIGHT TO TERMINATE /SUSPEND CONTRACT. At any time and for any or no reason, City shall have the right to terminate this Agreement, take possession of the Consultant's work, e.g., studies, preliminary drawings, computations, specifications, etc., insofar as they are complete and acceptable to the City, and pay the Consultant such equitable proportion of the total remuneration as the work satisfactorily done by the Consultant at the time of such discontinuance bears to the whole of the work required to be done by the Consultant under the terms of this Agreement_ 8. CORRECTION _ OF WORK. The performance of services or acceptance of information furnished by Consultant shall not relieve the Consultant from obligation to correct any subsequently discovered work, which fails to conform to competent professional standards, and all such work shall be remedied by the Consultant on demand without cost to the City. 9. DELAYS AND EXTENSIONS. The Consultant will be granted time extensions for delays beyond the Consultant's control. Time extensions will be equal to the length of the delay or as otherwise agreed upon between the Consultant and the City_ In such event, compensation as set forth in the Scope of Work shall be subject to renegotiation upon written demand of either party to the Agreement. . 10. RECORDS_ OF_ PERFORMANCE_ Consultant shall maintain adequate records of contract performance costs, expenses, etc., and make these records available for inspection, audit, and copying by the City during the agreement period and for a period of three (3) years from the date of final payment. 11. SUBCONTRACTING. None of the services covered by this contract shall be subcontracted without the prior written consent of the City. In accordance with Government Code Section 7550, Consultant agrees to state in a separate section of any filed report the numbers and dollar amounts of all contracts and subcontracts relating to preparation of the report. 12. ASSIGNMENT. The Agreement shall not be assigned by the Consultant in whole or in part, without the written consent of the City. 2 13. INDEMNIFICATION. To the full extent permitted by law, Consultant shall indemnify, hold harnlless, release and defend City, its officers, employees and agents from and against any and all actions, claims, demands, damages, disability, losses, expenses including attorney's fees and other defense costs and liabilities of any nature that may be asserted by any person or entity including Consultant, arising out of Consultant's negligent performance of services hereunder, including the activities of other persons employed or utilized by Consultant in the performance of this Agreement (including design defects and regardless of City's approval, use or acceptance of the work or work product hereunder) excepting liabilities due to the negligence or willful misconduct of City. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable by or for Consultant under Worker's Compensation, disability or other employee benefit acts or the terms, applicability or limitations of any insurance held or provided by Consultant and shall continue to bind the parties after term ination/completion of this Agreement. 14. INSURANCE. Without limiting Consultant's indemnification provided herein, Consultant shall take out and maintain, throughout the period of this Agreement, the following policies of insurance placed with insurers with a current A.M. Bests rating of no less than ANII or its equivalent against injury/death to persons or damage to property which may arise from or in connection with the activities hereunder of Consultant, its agents, employees or subcontractors: A. Comprehensive or Commercial General Liability Insurance at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001), in an amount of $1,000,000.00 per occurrence. If work involves explosive, underground or collapse risks, XCU must be included. If a general aggregate limit is used, either the general aggregate limit shall apply separately to this project or the general aggregate shall be twice the required occurrence limit. Said policy shall contain, or be endorsed with, the following provisions: (1) The City, its officers, employees and agents, are covered as additional insured, to the extent of Consultant's negligence, for liability arising out of the operations performed by or on behalf of Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, agents and employees. (2) The policy shall not be canceled or materially reduced in coverage without thirty (30) days prior written notice (10 days for non - payment of prenuum) to City by certified mail. (3) The inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverage afforded shall apply as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits of the insurer's liability. (4) For claims related to this project, the Consultant's insurance is primary coverage to the City, and any insurance or self - insurance programs maintained by the City is excess to Consultant's insurance and will not be called upon to contribute with it. (5) Any failure to comply with reporting or other provisions of the parties, including breach of warranties, shall not affect coverage provided to City, its officers, employees and agents. B. Automobile liability insurance with coverage at least as broad as ISO Form numbers CA 0001 06 92, Code 1 (any auto), for vehicles used in the performance of this Agreement with minimum coverage of not less than $1,000,000 per accident combined single limit (CSL). Such policy shall contain or be endorsed with the provision that coverage shall not 3 be canceled or materially reduced in coverage without thirty (30) days prior written notice (10 days for non - payment of premium) to City by certified mail. C. Worker's Compensation insurance meeting statutory limits of Labor Code which policy shall contain or be endorsed to contain a waiver of subrogation against City, its officers, agents, and employees and provide for thirty (30) days prior written notice to City in the event of cancellation. If Consultant has no employees, Consultant may sign and file the following certification in lieu of insurance: "I am aware of the provisions of California Labor Code Section 3700 which requires every employer to be insured against liability for workers' compensation or to undertake self - insurance in accordance with the provisions of that code, and 1 will comply with the provisions of that code before commencing with and during the performance of the work of this contract. " D. Professional liability insurance /errors and omission coverage in an amount no less than $1,000,000.00 combined single limit (CSL). If insurance is written on a claim -made basis, Consultant agrees to maintain such insurance in effect for at least three (3) years following completion of performance under this Agreement. E. Consultant shall furnish City with certificates and original endorsements affecting the required coverage upon execution of this Agreement by City. The endorsements shall be on forms provided by City or as approved by City Attorney. Any deductible or self - insured retention over $100,000.00 shall be disclosed to and approved by City. If Consultant does not keep all required insurance policies in full force and effect, City may, in addition to other remedies under this Agreement, take out the necessary insurance, and Consultant agrees to pay the cost of said insurance. 15. STANDARD OF CARE. City relies upon the professional ability of Consultant as a material inducement to entering into this Agreement. Consultant agrees to use reasonable care and diligence in rendering services under this Agreement. Consultant agrees that the acceptance of his work by City shall not operate as a waiver or release of said obligation of Consultant. The absence, omission, or failure to include in this Agreement, items which are normally considered to be a part of generally accepted professional procedure or which involve professional judgment shall not be used as a basis for submission of inadequate work or incomplete performance. 16. COVENANT AGAINST CONTINGENT FEES_ The Consultant warrants that he has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making this Agreement. For breach or violation of this warranty, the City shall have the right to annul this Agreement without liability or, in its discretion to deduct from the Agreement price or consideration, or . otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 17. CONFLICT_ OF INTEREST. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed. 18. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant 11 comes within the definition of Consultant under the Political Reform Act (Government Code §87100), Consultant shall complete and file and shall require any other person doing work under this Agreement to complete and file a "Statement of Economic Interest" with the Clerk of the City of Rohnert Park disclosing Consultant and /or such other person's financial interests. 19. MERGER_ This Agreement shall constitute the entire Agreement between the parties and shall supersede any previous agreements, whether verbal or written, concerning the same subject matter. No modification of this Agreement shall be effective unless and until evidence by a writing is signed by both parties. 20. DEFAULT. If Consultant should fail to perform any of his obligations hereunder, within the time and in the manner herein provided or otherwise violate any of the terms of this Agreement, City may terminate this Agreement by giving Consultant written notice of such termination, stating the reason for such termination. In such event, Consultant shall be entitled to receive as full payment for all services satisfactorily rendered and expenses incurred hereunder, an amount which bears the same ratio to the total fees specified in the agreement as the services satisfactorily rendered hereunder by Consultant bear to the total services otherwise required to be performed for such total fee; provided, however, that the City shall deduct from such amount the amount of damage, if any, sustained by City by virtue of the breach of the Agreement by Consultant. 21. NO WAIVER OF BREACH; TIME. The waiver by City of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same or any other term or promise contained in this Agreement. Time is of the essence in carrying out the duties hereunder. 22. THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall be construed to create and the parties do not intend to create any rights in third parties. 23. ATTORNEY FEES, APPLICABLE LAW AND FORUM. In the event either party brings an action or proceeding for damages arising out of the other's performance under this Agreement or to establish the right or remedy of either party, the prevailing party shall be entitled to recover reasonable attorney fees and costs as part of such action or proceeding, whether or not such action or proceeding is prosecuted to judgment. This Agreement shall be construed and interpreted according to California law, and any action to enforce the terms of this Agreement or for the breach thereof shall be brought and tried in the County of Sonoma. 24. INDEPENDENT _C_ONTR_ ACTOR. The parties intend that Consultant, in performing the services specified herein, shall act as an independent contractor and shall have control of the work and the manner iii which it is performed. Consultant is not to be considered an agent or employee of the City and is not entitled to participate in any pension plan, insurance, bonus or similar benefits City provides its employees. In the event City exercises its right to terminate this Agreement, Consultant expressly agrees that he /she shall have neither recourse nor right of appeal under rules, regulations, ordinances or laws applicable to employees. 25. TAXES. Consultant agrees to file tax returns and pay all applicable taxes on amounts paid pursuant to this Agreement and shall be solely liable and responsible to pay such taxes and other obligations, including, but not limited to, state and federal income and FICA taxes. Consultant agrees to indemnify and hold the City harmless from any liability which it may incur to the United States or to the State of California as a consequence of Consultant's failure to pay, when due, all such taxes and obligations. 26. EMPLOYMENT _PRACTICES. Consultant shall not discriminate in its performance under the Agreement either directly or indirectly on the grounds of race, color, religion, sex, age, national origin, or other prohibited grounds in its employment practices, and 5 shall take affirmative steps to ensure that applicants are employed and employees are treated d>>'r'ng employment without regard to mace, color, religion, sex, age, national origin, or other prohibited grounds. 27. COMPLIANCE WITH LAW. Consultant shall comply with all applicable federal, state and local laws, rules and regulations affecting the Consultant and his /her work hereunder. Consultant represents and warrants to City that Consultant has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice Consultant's profession and to do the work hereunder. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice his /her profession and do the work contemplated by this Agreement. 28. TITLE TO DOCUMENTS. Title to all plans, specifications, maps, estimates, reports, manuscripts, drawings, descriptions and other final work products compiled by the Consultant under the Agreement shall be vested in the City, none of which shall be used in any manner whatsoever, by any person, firm, corporation, or agency without the expressed written consent of the City. Basic survey notes and sketches, charts, computations, and other data prepared or obtained under the Agreement shall be made available, upon request, to the City without restriction or limitations on their use. Consultant may retain copies of the above - described information but agrees not to disclose or discuss any information gathered, discussed or generated in any way through this Agreement without the written permission of City during the term of this Agreement or until ninety (90) days after receipt of final payment from City. 29. INTERPRETATION. Notwithstanding the fact that one or more provisions of this Agreement may have been drafted by one of the parties to this Agreement, such provisions shall be interpreted as though they were a product of a joint drafting effort and no provisions shall be interpreted against a party on the ground that said party was solely or primarily responsible for drafting the language to be interpreted. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written_ CITY OF ROI-INERT PARK: (Name�tle) -- By. (Date) Stephen R. Donley, City Manager Per Resolution No. 2006- adopted by the City Council on ATTEST: By: City Clerk APPROVED AS TO FORM: SI' City Attorney 6 CONSULTANT: Keyser Marston Associates (Rlame %Title) (Date) CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the , and a duly authorized representative of the firm of whose address is and that neither I nor the above firm I here represent has: a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit to secure this Agreement. b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the Agreement; or C) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out the Agreement; Except as here expressly stated (if any); I acknowledge that this certificate is subject to applicable State and Federal laws, both criminal and civil. Date Signature agr \Consult. 8