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CM Low Income Housing & Supportive ServicesCONTRACT FOR SERVICES BETWEEN City of San Rafael AND Falcone Development Services, LLC This Agreement is made this P'day of May 2017 by and between the City of San Rafael ("Client") and Falcone Development Services, LLC ("Consultant") (Federal Tax ID: 01- 0920882). Whereas, Client has been undertaking a multi-year effort to support local non-profit agencies in an attempt to provide housing and supportive services to very low-income citizens of San Rafael by identifying new opportunity sites to accommodate this housing and services; Whereas Client is part of an existing working group of other local non-profit agencies, and the County of Marin; Whereas Client desires to engage a consultant to assist with strategizing next steps and evaluating different potential programmatic scenarios; Whereas, in order to carry out the responsibilities related to these activities, Client wishes to retain Consultant; and Whereas, Consultant agrees to perform the tasks required by Client. NOW, therefore the parties mutually agree as follows: AGREEMENT 1) RESPONSIBLE PARTY. Client hereby enters into this Agreement with Consultant. Client's Project Manager for this Agreement is Andrew Hening, who shall supervise all aspects of the progress and execution of this Agreement. Consultant's Project Director for this Agreement is Scott Falcone, who shall supervise all aspects of the progress and execution of this Agreement. 2) SCOPE OF WORK. Consultant's responsibilities will include communicating with local non-profit agencies, assisting to establish programmatic goals for housing and services, evaluating real estate options to meet these goals, and other activities as directed by Client in writing. 3) NON -EXCLUSIVITY. Consultant shall perform services for Client on a non- exclusive basis and shall be free to provide his services to third parties while this Agreement is in effect; Consultant will not provide services for third parties City of San Rafael -Falcone Development Services, LLC: Contract for Services- FINAL Page 1 directly competing with the interests of the Client regarding a specific property or transaction. Consultant will disclose any existing or pending contracts which could potentially create a conflict of interest. 4) COMPENSATION. Consultant shall charge Client an hourly rate of one hundred forty dollars ($140) to provide services under Section 2 above. In addition, Consultant shall be reimbursed for all direct project expenses including transportation, postage, messengers, photographs, photocopying, etc. Consultant shall provide Client with an itemized invoice, and will invoice Client on a monthly basis, and Client agrees to pay Consultant no later than 30 days from receipt of Consultant's invoice. In no event shall the total compensation for services pursuant to this Agreement exceed $10,000. 5) TERM. The Agreement term shall be one year, commencing on the date set forth above, unless terminated as provided below. The Client may extend the term for an additional year. 6) TERMINATION. Either party can terminate this Agreement without cause at any time by giving seven days' written notice to the other party. The performance of all services under this Agreement shall cease upon receipt of a notice to terminate under this paragraph. Should either party default in the performance of this Agreement or materially breach any of its provisions, the non -breaching party may terminate this Agreement by giving written notice to the breaching party of its intent to cancel this Agreement if the breach is not cured within seven (7) days. If, after receiving such notice, the breaching party fails to cure the breach through performance, the non -breaching party may terminate this Agreement without incurring any further obligation under this Agreement. For purposes of this paragraph, a material breach of this Agreement shall include, but not be limited to, nonpayment of fees by Client in accordance with Section 2, above. This Agreement will automatically terminate if either party: (a) files for bankruptcy or becomes insolvent; (b) sells its business; or (c) becomes disabled, incapacitated, or dies. Upon termination, any and all Client documents or materials provided to Consultant and any and all of Consultant's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to Client as soon as possible, but not later than thirty (30) days after termination. The written documents and materials prepared by Consultant in connection with the performance of its duties under this Agreement shall be the sole property of Client. Client may use said property for any purpose, including projects not contemplated by this Agreement. City of San Rafael -Falcone Development Services, LLC: Contract for Services- FINAL Page 2 Regardless of the reason for the termination of this Agreement, Consultant will be entitled to its fees for all services rendered through the date of termination. Such fees shall be paid in accordance with Section 2 above. 7) CHANGES TO AGREEMENT. Client and Consultant may from time to time request changes in the scope of services to be performed hereunder. Such changes must be mutually agreed upon by and between both Client and Consultant and shall be incorporated in written amendments to this Agreement. 8) INDEPENDENT CONTRACTOR. The Consultant is not the agent, employee, partner or joint venture partner of Client, but is acting as an independent contractor and nothing herein shall be deemed to create an employer-employee relationship, a partnership or joint venture, or any other relationship except the duties and obligations set forth herein. Client has the ultimate decision-making authority for all aspects of the project and Consultant is not authorized to make any representation, contract, or commitment on behalf of Client. Consultant shall obtain and maintain during the duration of this Agreement, a City of San Rafael business license as required by the San Rafael Municipal Code. Consultant will be solely responsible for and will file, on a timely basis, all tax returns and payments required to be filed with respect to Consultant's performance of services. No part of Consultant's compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes. Client will regularly report amounts paid to Consultant by filing Form 1099-MISC with the Internal Revenue Service as required by law. 9) INSURANCE. A. Scope of Coverage. During the term of this Agreement, Consultant shall maintain, at no expense to Client, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. B. Other Insurance Requirements. The insurance coverage required of the Consultant in subparagraph A of this section above shall also meet the following requirements: City of San Rafael -Falcone Development Services, LLC: Contract for Services- FINAL Page 3 1. The insurance policies shall be specifically endorsed to include the Client, its officers, agents, employees, and volunteers, as additionally named insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under Consultant's insurance policies shall be primary with respect to any insurance or coverage maintained by Client and shall not call upon Client's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in Consultant's policies shall be at least as broad as ISO form CG20 0104 13. 3. The insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the Project Manager. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of Client (if agreed to in a written contract or agreement) before Client's own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to Client or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in Consultant's insurance policies must be declared to and approved by the Project Manager and City Attorney, and shall not reduce the limits of liability. Policies City of San Rafael -Falcone Development Services, LLC: Contract for Services- FINAL Page 4 containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or Client or other additional insured party. At Client's option, the deductibles or self-insured retentions with respect to Client shall be reduced or eliminated to Client's satisfaction, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. Consultant shall provide to the Project Manager or Consultant's City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. Client reserves the right to obtain a full certified copy of any insurance policy and endorsements from Consultant. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by Project Manager and the City Attorney. 9) INDEMNIFICATION. Consultant shall indemnify and hold Client harmless from and against any and all loss, damages, liability, claims, suits, costs, and expenses whatsoever, including reasonable attorney's fees, to the extent arising from Consultant's sole negligent performance of services pursuant to this Agreement. Client shall indemnify and hold Consultant harmless from and against any and all loss, damages, liability, claims, suits, costs, and expenses whatsoever including reasonable attorney's fees, arising from or in any manner connected to Client's breach of this Agreement, including but not limited to the acts or omissions of Client's or the Project's architects, engineers, contractors, or other consultants working on the Project, or of Client's negligent furnishing of information to Consultant needed for Consultant's performance of services pursuant to this Agreement. 10) ASSIGNMENT. This Agreement may not be assigned or transferred by either part'. 11) ENTIRE AGREEMENT. This Agreement is the entire agreement of the Parties with respect to the subject matter stated herein. This Agreement supersedes and cancels any and all negotiations, representation, or statements which precede the date of this Contract. 12) GOVERNING LAW. This Agreement shall be convened by, and construed in accordance with the laws of the State of California. City of San Rafael -Falcone Development Services, LLC: Contract for Services- FINAL Page 5 13) ARBITRATION. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Each side shall bear its own costs and attorney's fees in any arbitration proceeding irrespective of who the prevailing Party may be. The decision of the arbitrator or arbitrators shall be final and binding upon the Parties. The arbitration shall be held in San Francisco, California. Judgment on the Award may be entered in any court having jurisdiction. IN WITNESS HEREOF, Client and Consultant have executed this Agreement on the date first written above. CITY OF SAN RAFAEL � V_ TS BY: Jim Schutz, City Manager Attest: "-Z 's gZf— - Esther Beime, City Clerk Approved as to form: FALCONE DEVELOPMENT SERVICES LLC ri P -T-- Robert F. Epstein, Ci ttorne� A""- BY: Scott Falcone, Sole Member City of San Rafael -Falcone Development Services, LLC: Contract for Services- FINAL Page 6 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Homeless Planning and Outreach Project Manager: Andrew Hening Extension: 3055 Contractor Name: Falcone Development Services, LLC Contractor's Contact: Scott Falcone Contact's Email: scott@falconedevelopment.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor 4/6/2017 0 3/23/2017 b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 0 2 City Attorney a. Review, revise, and comment on draft agreement 4/6/2017 and return to Project Manager Click here to 0 LG b. Confirm insurance requirements, create Job on entU ate. 55// PINS, send PINS insurance notice to contractor �f 3 Project Manager Forward three (3) originals of final agreement to 4/25/2017 0 contractor for their signature AH 4 Project Manager When necessary, * contractor-siened agreement 0 N/A agendized for Council approval AH *PSA > $20,000; or Purchase > $35,000; or Or ❑X Public Works Contract > $125,000 Click here to Date of Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS, and bonds 1, 11q / (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and -7 forwards copies to Project Manager