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HomeMy WebLinkAboutCC Resolution 13111 (Pt. San Pedro Median Landscaping Formation)RESOLUTION NO. 13111 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE PUBLIC WORKS DIRECTOR TO ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH NORTHCROSS, HILL & ACH, INC. FOR FINANCIAL ADVISORY SERVICES IN CONNECTION WITH THE FORMATION OF THE PROPOSED PT. SAN PEDRO ROAD MEDIAN LANDSCAPING ASSESSMENT DISTRICT. WHEREAS, the Pt. San Pedro Road Median Landscaping Committee has requested that the City of San Rafael proceed with formation of an Assessment District; and WHEREAS, the Pt. San Pedro Median Road Landscaping Committee has collected adequate funds to pay for the preliminary consulting costs for formation of the proposed District, with the remainder of fees to be paid out of bond proceeds; and WHEREAS, the formation of an Assessment District using 1972 Lighting and Landscaping Act requires services of expert consultants; and WHEREAS, City staff has selected Northcross, Hill & Ach, Inc. to provide the required financial advisory services needed in connection with formation of the proposed District; and WHEREAS, Northcross, Hill & Ach, Inc. has submitted a proposed Professional Services Agreement for the provision of financial advisory services in connection with formation of the District, with such services to be provided at a flat fee of $7,500; and WHEREAS, City staff has reviewed the fee proposal made by Northcross, Hill and Ach, Inc. and found it to be within industry standards and acceptable. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Rafael that the Public Works Director is authorized to execute the Agreement for Professional Services with Northcross, Hill and Ach, Inc., with the fees as specified in the Recitals to this Resolution, and in a form approved by the City Attorney's office. RESOLVED FURTHER that the Public Works Director of the City of San Rafael is hereby authorized to take any and all such actions and make changes as may be necessary to accomplish the purpose of this resolution. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on the 22nd day of February, 2011, by the following vote, to wit: AYES: COUNCIL MEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None - ESTHER C. BEIRNE, City Clerk File No.: 06.01.208 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement is made and entered into as of the 22, day of Feb. , 2011 by and between the City of San Rafael, a municipal corporation ("City") and Northcross, Hill & Ach, Inc. ("Consultant"). RECITALS a. Consultant is specially trained, experienced and competent to perform the special services which will be required be this Agreement; and b. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein; and c. City desires to retain Consultant to render professional financial advisory services as set forth in this Agreement. AGREEMENT 1. Scope of Services. The Consultant shall furnish the following services in a professional manner. Consultant shall perform the services described on Exhibit A which is attached hereto and incorporated herein by reference. Consultant shall provide said services at the time, place, and in the manner specified in Exhibit A, subject to the direction of the City through its staff that it may provide from time to time. 2. Time of Performance. The services of Consultant are to commence upon execution of this Agreement and shall continue until all authorized work is completed and approved by the City. 3. Compensation. Compensation to be paid to Consultant shall be in accordance with the Schedule of Charges set forth in Exhibit A, which is attached hereto and incorporated herein by reference. In no event shall Consultant's compensation exceed $7,500 without additional written authorization from the City. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the City at the time of payment. 4. Method of Payment. Consultant shall submit a single billing upon a successful project financing. City shall pay Consultant at closing as part of the financing costs. Consultant will only receive payment in the event of successful closing. In the event the project is not completed and funding is not provided, Consultant will not receive any compensation. 5. Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably 1 anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City. 6. Termination. This Agreement may be terminated by the City immediately for cause or by either party without cause upon fifteen days written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination. Such compensation is subject to the conditions of Section 4 of this agreement. 7. Ownership of Documents. All plans, studies, documents and other writings prepared by and for Consultant, its officers, employees, agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Consultant for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon request. 8. Licensing of Intellectual Property. This Agreement creates a nonexclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regards to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 9. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Consultant, which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. F 10. Consultant's Books and Records: a. Consultant shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. b. Consultant shall maintain all documents and records which demonstrated performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City administrator, City attorney, City auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at the City's office when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt of notices in this Agreement. d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant's business, City may, by written request by any of the above named officers, require that custody of the records be given to the City and that the records and documents be maintained in the City office. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor -in -interest. 11. Independent Contractor. It is understood that Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may have to any such rights. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant: a. Will conduct research and arrive at conclusions with respect to his/her rendition of information, advice, recommendation or counsel independent of the control and direction of the City or of any City official, other than normal agreement monitoring; and b. Possesses no authority with respect to any City decision beyond rendition of information, advice, recommendation or counsel. (FPPC Reg. 18700(B) (2).) 12. Interest of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and 0 shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. 13. Professional Abilitv of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise. 14. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations. 15. Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature, which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Consultant to practice its profession. 16. Indemnity. Consultant agrees to defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therein), arising out of the performance of this Agreement in whole or in part by any negligent act or omission of the Consultant or its failure to comply with any of its obligations contained in this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers. 17. Insurance Requirements. Consultant, at Consultant's own cost and expense, shall procure and maintain, for the duration of the contract, necessary insurance policies, as outlined in Exhibit B. 18. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to City Public Works Director City of San Rafael 111 Morphew Street San Rafael, CA 94901 4 If to Consultant: Northcross, Hill & Ach, Inc. 4040 Civic Center Drive, Ste. 200 San Rafael, CA 94903 19. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 20. Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 21. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express consent of the City. Consultant shall not subcontract any portion of the work to be performed under the Agreement without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 22. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 23. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 24. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Marin. 25. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. 26. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. R Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 27. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 28. Authoritv to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 29. Prohibited Interest. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising there from. 30. Equal Opportunity Emplovment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. CITY OF SAN RAFAEL: Executed by: Nader Mansourian, Public Works Director Attested By: 4' P Esther Beirne, City Clerk Approved As to Form By: C 7 � � 0'e F_ Robert F. Epstein, City Attorney CONSULTANT: By: a Attachments: Exhibit A — Scope of Services & Compensation Exhibit B — Insurance Requirements ri Exhibit A SCOPE OF SERVICES & COMPENSATION Consulting —Assessment District Formation — Work with City staff and stakeholders on initial analysis of assessment lien impact — Coordinate with City staff on process and consultant team selection (legal and assessment consultant) — Participate in meeting/call with Property owners and City staff to outline any capital improvements and/or ongoing maintenance that are to be included in annual assessment — Develop cash flows or other financial analysis related to projected maintenance costs and assessment impact on subject properties — Work with legal and assessment engineer to develop engineer's report and other assessment district formation documents — Draft staff report and assist City staff with other correspondence — Participate in City Council meetings or other public discussions, as requested Compensation For the services of Consultant as financial advisor listed under this Agreement, the City shall pay Consultant a non -contingent fee of $7,500 for the Scope of Work detailed above. Upon a successful public hearing and assessment district formation, in the event assessment bonds are required to fund capital improvements, a revised Scope of Service will be developed to address the financial advisory costs associated with the issuance of bonds Compensation excludes any out-of-pocket expenses. Exhibit B INSURANCE REQUIREMENTS A. During the term of this Agreement, CONTRACTOR shall maintain, atDoexpense to CITY the following insurance policies: 1. A comprehensive general liability insurance policy in the rnin|nlurn amount of one million ($1.000.000) dollars per occurrence for death, bodily injury, personal injury, or property 2. Anautomobile liability , Don-oVvnpd,and hired vehicles) insurance policy in the minimum amount of one million ($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 ($1,00[l000) dollars to cover any claims arising out ofthe CONTRACTOR"s performance of services under this Agreement. B. The insurance coverage required of the CONTRACTOR by section A.shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution. 3. Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury. 3. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 4. CONTRACTORsha|l provide to City's Risk Manager, /o\ Certificates of Insurance evidencing the insurance coverage required herein, and /b\ specific endorsements naming CITY,� its officers, agents, employees, and volunteers, as additional named insureds under the policies. 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except Upon ten (IO) days written notice toCity's Risk Manager. 6. 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. 7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. � N W 8. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. If it employees any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. D. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the City's Risk Manager and the City Attorney. 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. i[r