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ED Real Estate and Consulting ServicesAGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF SAN RAFAEL AND KEYSER MARSTON ASSOCIATES, INC. FOR REAL ESTATE AND CONSULTING SERVICES This Agreement is made and entered into this J::]_ day of NtN::CrobCr , 20 IV, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and ·KEYSER MARSTON AS SOCIA TES, INC. (hereinafter "CONTRACTOR"). RECITALS WHEREAS, the CITY has determined that it is in its best interest to obtain business support services from a professional firm to assist City staff in the preparation and development of an RFQ/P for its parking garage site on Third and Lootens Streets; and WHEREAS, the CONTRACTOR has expertise in providing such services and possesses skills necessary to assist in the development of the RFQ/P; and WHEREAS, the CITY desires to employ the CONTRACTOR to provide such services and CONTRACTOR is willing and able to provide said services. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The Economic Development Director is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Timothy C. Kelly is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide services as specified in Exhibit A attached hereto and incorporated herein by reference. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and make ~vailable CITY staff required to support the development of an RFQ/P for the parking garage site. RIG NAL 4. COMPENSATION. CITY shall compensate CONTRACTOR on a time and materials basis at the hourly rates set forth in Exhibit A attached. Total compensation under the Agreement shall not exceed $25,000. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. 5. TERM OF AGREEMENT. The term of this Agreement shall be for one (1) year(s) commencing on the date of execution of this Agreement. Upon mutual agreement of the parties, and subject to the approval of the City Manager the term of this Agreement may be extended for an additional period ofup to one (1) year(s). 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days wiitten notice mailed or personally delivered to the other party, and the ·notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with 2 CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, 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. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONTRACTOR's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be "primary and non contributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The 3 "primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form CG20 01 04 13. . 3. Except for professional liability insurance or worker9s compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 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 CITY (if agreed to in a written contract or agreement) before CITY'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 CITY 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. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the CONTRACTOR under this agreement. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR'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 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 CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance 4 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. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. 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. 11. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONTRACTOR shall, to the fullest extent pe1mitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liaJ:,ility or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONTRACTOR'S alleged negligence or willful misconduct in the performance of its obligations or conduct of its operations under this Agreement. The CONTRACTOR's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or· willful misconduct of the City Indemnitees, the CONTRACTOR's indemnification obligation shall be reduced in proportion to the City lndemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City lndemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. To the extent permitted by law including without limitation, Civil Code sections 2782, 2782.6 and 2782.8, CONTRACTOR shall indemnify and hold harmless the CITY and its officers, officials, and employees (collectively City Indemnitees) from and against damages, liabilities or costs (including incidental damages. Court costs, reasonable attorney's fees as may be determined by the Court, litigation expenses and fees of expert witnesses incurred in connection therewith and costs of investigation) to the extent they are caused by the negligence, recklessness, or willful misconduct of CONTRACTOR, or any subconsultants, or subcontractor or anyone directly or indirectly employed by them, or anyone for whom they are legally liable (collectively Liabilities). Such obligation to hold harmless and indemnify any indemnity shall not apply to the ex.tent that such Liabilities are caused in part by the negligence or willful misconduct of such City Indemnitee. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 5 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the pe1formance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONTRACTOR's Project Director: 6 Danielle O'Leary City of San Rafael 1400 Fifth A venue P.O. Box 151560 San Rafael, CA 94915-1560 Danielle.0Lewy@cityofsanrafael.org Timothy C. Kelly Keyser Marston Associates, Inc. 2040 Bancroft Way, Suite 302 Berkeley, CA 94704 tkelly@keysermarston.com 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the .CITY. CONTRACTOR and ~IT)' expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT --AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the patties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 7 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the tenns and conditions of this Agreement, or arising out of the perfonnance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE/OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONTRACTOR shall pay any and all state and federal truces and any other applicable truces. CITY shall not be required to pay for any work perfonned under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Fonn W-9 (Request for Taxpayer Identification Number and Certification). 22. SURVIVAL OF TERMS. Any tenns of this Agreement that by their nature extend beyond the tenn ( or tennination) of this Agreement shall remain in effect until fulfilled, and shall apply to both Parties' respective successors and assigns. 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL 8 CONTRACTOR Title: President [If Contractor is a corporation, add signature of second corporate officer] ATTEST: LINDSAY LARA, City Clerk By:~-1 ✓Af-~ APPROVED AS TO FORM: Name: Diane M. Chambers Title: Secretary 9 AOVISOII.S IN: ilfAL ESTATE AHORl>ABU HOUSING ECONOMIC OEVELOrMINT SAN FRANCISCO A. flRllY KlYSER TIMOTIIV C. KELLY DrnBIE M. KERN KEYSER .MARSTON ASSOCJATES,; ADVISORS IN l'UDLIC/PlllVATE '1,EAL ESTATE DEVELOPMENT November 5, 2018 Jim Shutz City Manager City of San Rafael 1400 5th Avenue, Room 203 San Rafael, CA 94901 o.-.v1D oomMA Re: Real Estate Consulting Services LOSANOELl!S KATIILIEN H. HEAD )AMES A. RABE Gll[GOllY D . Sao-Hoo KEVIN E. ENGSTROM JumLROMEY SAN DIEGO PAUtC.MARllA Dear Jim: We are delighted to have this opportunity to assist you in your efforts with a public private partnership in the redevelopment of the City's parking garage on Third Street at Lootens. In accordance with your request, Keyser Marston Associates, Inc. (KMA) has prepared this scope of work to assist City staff in the preparation of a RFQ/P for its parking garage site on Third St. It is contemplated that a mixed-use project will be proposed and evaluated which will include a new public garage. Scope of Work The City anticipates the issuance of a RFQ/P and the selection of a preferred developer. It is anticipated that there will be a number of important issues that will arise in the preparation of documents and assessments of proposals. The following outlines a scope of work to be performed by KMA in an advisory role as requested by staff: • Assist City staff in its preparation of and evaluation of a RFQ and a RFP; • Assist in evaluation of development concept alternatives and resulting impacts on project economics • Assist in the evaluation of developers and their submittals, i_ncluding qualifications, experience, financial resources, etc. • Provide evaluation of project economics and analysis of project pro formas for the proposed land uses; 2040 BANCROFT WAY. SUITE 302 ►BERKELEY.CALIFORNIA 94704 ► PHONE: 41S 398 30S0 ► FAX: 41S 397 506S WWW.KEYSERMARSTON.COM 900b-1676; jf · 99900 Jim Shutz City of San Rafael November 5, 2018 Page2 • Review assessment of project marketability and financial feasibility of program changes as provided by potential developers • Assist in evaluation, discussion, and negotiation of business terms with potential developer including closing and conveyance of the site, reconstruction of the existing public garage, and other issues related to the public-private partnership to be entered into between City and the selected developer. Staffing This assignment will be led by Tim Kelly. As necessary, he will be assisted by Kevin Feeney, a principal of the firm. Budget Our budget proposal for the above work program is to proceed as directed by City staff on a time and materials basis, not to exceed $25,000 without staff authorization. KMA's hourly billing rate schedule is attached. We look forward to assisting you on this interesting project. Sincerely, KEY.SER MARSTON ASSOCIATES, INC. ' >\ ~ ft ~1 ·<r!1Yci\~ 900b-1676; Jf 99900 KEYSER MARSTON ASSOCIATES, INC. PUBLIC SECTOR HOURLY RATES CHAIRMAN, PRESIDENT, MANAGING PRINCIPALS* SENIOR PRINCIPALS* PRINCIPALS* MANAGERS* SENIOR ASSOCIATES ASSOCIATES SENIOR ANALYSTS ANALYSTS TECHNICAL STAFF ADMINISTRATIVE STAFF 2018/2019 $280.00 $270.00 $250.00 $225.00 $187.50 $167.50 $150.00 $130.00 $95.00 $80.00 Directly related job expenses not included in the above rates are: auto mileage, parking, air fares, hotels and motels, meals, car rentals, taxies, telephone calls, delivery, electronic data processing, graphics and printing. Directly related job expenses will be billed at 110% of cost. Monthly billings for staff time and expenses incurred · during the period will be payable within thirty (30) days of invoice date. • Rates for individuals in these categories will be increased by 50% for time spent in court testimony. 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: Economic Development Project Manager: Danielle O'Leary Extension: 3460 Contractor Name: Keyser Marston Associates Contractor's Contact: Tim Kelly Contact's Email: tkelly@keysermarston.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 Click here to □ enter a date. b. Email contract (in Word) and attachments to City 11/7/2018 Attorney c/o Laraine .Gittens@cityofsanrafael.org □ 2 City Attorney a. Review, revise, and comment on draft agreement 11/9/2018 ~ LG and return to Project Manager 11/9/2018 ~ LG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to 11/15/2018 ~ contractor 4 Project Manager Forward three (3) originals offinal agreement to 11/15/2018 ~ contractor for their signature 5 Project Manager When necessary, contractor-signed agreement □ N/A agendized for City Council approval * *City Council approval required for Professional Services □ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date . PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 11/26/18 AG for DO Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed I l /-:i. 7 / I <? ~ agreement 8 City Attorney Review and approve insurance in PINS, and bonds H/27/J t;r V}_ (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized I I I i1 (1y K official 10 City Clerk Attest signatures, retains original agreement and I l -rn forwards copies to Project Manager \\ -i~ l 1<o u, ."?Jl ** 11/15 Talked and confirmed with Lisa Goldfein that the slight changes contractor made to the indemn. wording is OK.