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HomeMy WebLinkAboutCD Fiscal Impact Analysis Consulting ServicesAGREEMENT FOR PROFESSIONAL SERVICES FOR FISCAL IMPACT ANALYSIS CONSULTING SERVICES This Agreement is made and entered into this day of [J �i , 2(k, and between the CITY OF SAN RAFAEL (hereinafter "CITY'), and KOSMONT & ASSOCIATES, INC., a California corporation (hereinafter "CONSULTANT"). RECITALS WHEREAS, the CITY is in need of economic development services for the City of San Rafael's Development Agreement negotiations and MGP XI Northgate, LLC (i.e. Northgate Mall Town Square Development); and WHEREAS, the CONSULTANT has the experience and capabilities to provide consulting and analytical services including economic market analyses and strategic recommendations. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: I. PROJECT COORDINATION. A. CITY'S Project Manager. The Planning Manager, or her designee, 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. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Ken F ira is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and/or provide services as outlined in CONSULTANT's proposal, dated September 18, 2022, marked as Exhibit A, attached hereto and incorporated herein. DUTIES OF CITY CITY shall cooperate with CONSULTANT in performance of its duties under this Agreement and shall pay the compensation as provided in Paragraph 4. 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT on time and materials basis for services rendered in accordance with the rates described in Exhibit A, for a total amount not -to -exceed $34,000. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. TERM OF AGREEMENT. The term of this Agreement shall be for one (1) year(s) commencing upon 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 of up 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 written 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 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 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 CONSULTANT 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. INSPECTION AND AUDIT. Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONSULTANT in connection with Revised 1/29/2020 its performance of its duties under this Agreement. CONSULTANT shall fully cooperate with CITY or its agent in any such audit or inspection. L`�Ell%, 14"M111aIVA 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, CONSULTANT 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) 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 CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONSULTANT shall maintain workers' 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. CONSULTANT's workers' compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or workers' 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 CONSULTANT'S insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by Revised 1/29/2020 CITY and shall not call upon CITY'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. Except for professional liability insurance or workers' 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, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT 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 CONSULTANT under this Agreement. 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 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 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 Revised 1/29/2020 or CITY'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. CITY 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. 11. INDEMNIFICATION. A. Except as otherwise provided in subparagraph B of this section, CONSULTANT shall, to the fullest extent permitted 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, liability 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 CONSULTANT'S performance of its obligations or conduct of its operations under this Agreement. The CONSULTANT'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 CONSULTANT's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULTANT'S performance of or operations under this Agreement, CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. 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 of, expiration of or completion of work (Scope Exhibit A) under this Agreement for the full period of time allowed by law, subject to any applicable statute of limitations. 12. NONDISCRIMINATION. CONSULTANT 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. CONSULTANT shall observe and comply with all applicable federal, state and local laws, Revised 1/29/2020 ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONSULTANT shall perforin all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT 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 CONSULTANT 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: Planning Manager City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 TO CONSULTANT's Project Director: Ken Hira Kosmont & Associates, Inc. 1601 N Sepulveda Blvd., #382 Manhattan Beach, CA 90266 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, 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 parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, Revised 1/29/2020 regarding the subject matter between the CONSULTANT 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 CONSULTANT 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. CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULTANT 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 parry 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. 20. COSTS AND ATTORNEY'S FEES The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance 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. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code, and CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONSULTANT has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). Revised 1/29/2020 22. SURVIVAL OF TERMS. Any terms of this Agreement that by their nature extend beyond the term (or termination) 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 by electronic signature and 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. [Signatures are on the following page.] Revised 1/29/2020 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL ATTEST: LINDSAY LARA, City Clerk APPROVED AS TO FORM: ROBE EPSTEIN, . Attorney Revised 1/29/2020 CONSULTANT �f By: t, . Y Name: Ken K. Hira Title: President [If CONSULTANT is a corporation, add signature of second corporate officer] By: Name: Kelly Aguilar Title: Secretary kos lon . companies since 1936 San Rafael Northgate Mall Fiscal Impact and Economic Benefit Analysis Kosmont Companies Scope and Budget Kosmont Companies ("Kosmont" or "Consultant") is pleased to provide the following Scope of Work and Budget for a Fiscal Impact Analysis ("Report") of Merlone Geier Partners' ("MGP") proposed redevelopment plan for 45 -acre Northgate Mall site ("Project"). The Report will assist the City of San Rafael ("City" or "Client") in understanding the net fiscal impact and economic benefit from the blended use redevelopment and financial terms outlined in the draft Development Agreement ("DA"). SCOPE: Approach to Tasks: The prospective assignment and consulting services that Kosmont will provide will be of a relatively limited scope and duration, and advisory in nature. Kosmont will be making recommendations only, which advise the Client and jurisdictions, including its elected officials, appointed officials and staff, which they can accept or reject. None of Kosmont's staff will act in a capacity as an elected official, nor appointed official, nor as staff, nor as serving in a "designated" position. Task 1: Kickoff Meeting Kick-off meeting with City staff to review scope and schedule, MGP's 2025 and 2040 Development Plan and DA terms, and most recent General Fund budget documents. Task 2: Financial Assumptions / Budget Review Kosmont will gather current Northgate Mall retail sales data on various retail types, as well as City residential unit values and review the most recent City budget to understand the key parameters affecting municipal revenues and service costs, including resident and worker populations. Task 3: Analysis of Primary Fiscal Revenues Based on the proposed Project program and its cost, size and unit types and commercial uses to be provided by MGP, Consultant will estimate the primary fiscal revenues to be generated by the Project upon full build -out, which may include property tax, motor vehicle in lieu fees, hotel TOT, direct and indirect sales and use tax, franchise / utility user tax and other revenues deemed relevant. Task 4: Analysis of City General Fund Service Costs Consultant will interview various City representatives as appropriate to identify the estimated incremental increase in General Fund service costs expected for the Project. For other expenditure categories, Consultant will develop an average per capita cost model to estimate primary fiscal expenditures that Kosmont Companies Mailing Address: 1601 N. Sepulveda Blvd., #38. (424) 297-1070 Physical Address: 1230 Rosecrans Ave., #630 Manhattan Beach, CA 90266 www.kosmont.com Manhattan Beach, CA 90266 Exhibit A kosrnon companies City of San Rafael Northgate Fiscal Impact and Economic Benefit Analysis 9/18/2022 may result from the Project upon full build -out and stabilization, including personnel, operations, and/or other costs related to public works, public safety, community services, community development, administration, and/or other municipal programs, as deemed relevant and applicable by Consultant. Task 5: Impact on Citywide Retail Consultant will gather data on local spending by residents of the various household types proposed for the Project. Based on estimated average household income and U.S Dept of Finance HH spending statistics, Consultant will estimate the annual retail and service spending, and the estimated capture by businesses within the City. Task 6: Excel Model Kosmont will design a dynamic fiscal impact model in Excel to measure the fiscal impact of the existing Northgate Mall in order to compare incremental annual fiscal revenues and expenditures to the City General Fund over a 20 -year buildout, reflecting the 2025 Master Plan and the 2040 Vision Plan. Consultant will project the annual fiscal revenues net of fiscal expenditures, known as the net fiscal impact with and without inflationary assumptions. Task 7: Economic Benefit Kosmont will utilize IMPLAN model to illustrate the change in onsite and indirect employment from the proposed Project as compared to current operations. Task 8: Development Fees Kosmont will review existing development impact fees for residential and commercial to determine one- time revenue potential from the 2025 Master Plan and 2040 Vision Plan. Based on the EIR assessment of infrastructure needs resulting from the Plans and any development variances requested by MGP, Kosmont can measure the financial value added and quantify an appropriate amount for community benefits for DA negotiation purposes. Task 9: Report Consultant will prepare a Summary Report describing the Project; net annual fiscal impact and economic benefits from the Project, other one-time public benefits; data sources, assumptions and methodologies utilized, and results obtained. Analysis results will be presented in both text and tabular format. Following discussion with City staff and receipt of any comments from City, Kosmont will prepare the final Report. To the extent that the Report concludes negative impact, Kosmont can assist in structuring a potential solution such as a CFD Services District that provides special tax payment for various residential types. Following the completion of the Report, Kosmont will be available for additional contract services to assist City by using its fiscal impact and economic benefit model to evaluate the incremental financial results from various DA terms. Kosmont Companies 2 i P a G (424) 297-1070 www.kosmont com 9ko. companies City of San Rafael Northgate Fiscal Impact and Economic Benefit Analysis 9/18/2022 Kosmont Companies 3 1 P a g e (424)297-1070 www kosmont.com kosrnon companies Professional Services City of San Rafael Northgate Fiscal Impact and Economic Benefit Analysis 9/18/2022 ATTACHMENT A Kosmont 2022 Public Agency Fee Schedule Chairman & CEO President Senior Vice President/Senior Advisor Vice President/Project Advisor Senior Project Analyst Project Analyst/Project Research Assistant Project Analyst/Assistant Project Manager Project Promotion/Graphics/GIS Mapping Services Clerical Support Additional Expenses In addition to professional services (labor fees) - $395.00/hour $365.00/hour $325.00/hour $225.00/hour $195.00/hour $165.00/hour $125.00/hour $ 95.00/hour $ 70.00/hour 1) Out-of-pocket expenditures, such as travel and mileage, professional printing, and delivery charges for messenger and overnight packages will be charged at cost. 2) Project/Market data sources for support of evaluation and analysis e.g., ESRI, Placer.ai, Costar/STR, IMPLAN and other based on quoted project cost. 3) If Kosmont retains Third Party Vendor(s) for Client (with Client's advance approval), fees and cost will be billed to Client at 1.1 X (times) fees and costs. 4) Consultant's attendance or participation at any public meeting, whether such participation is in person, digital, video and/or telephonic (e.g., City Council, Planning Commission, Public Agency Board, other) requested by Client and are beyond those specifically identified in the Scope of Work will be billed at the professional services (hourly) fees as shown on this Attachment A. Changes for Court/Deposition/Expert Witness -Related Appearances Court -related (non -preparation) activities, such as court appearances, depositions, mediation, arbitration, dispute resolution and other expert witness activities, will be charged at a court rate of 1.5 times scheduled rates, with a 4 -hour minimum. Rates shall remain in effect until December 31, 2022. Kosmont Companies (424) 297-1070 www kosmont com 41"a-, 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: Community Development Project Manager: Leslie Mendez, Planning Manager Extension: x3095 Contractor Name: Kosmont & Associates, Inc. Contractor's Contact: Ken Hira, (949) 226-0288 Contact's Email: khira@kosmont.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE Check/initial 1 Project Manager 9/26/2022 9/29/2022 LM b. Email contract (in Word) & attachments to City LM Atty c/o Laraine.Gittens@cityofsanrafael.org El 2 City Attorney a. Review, revise, and comment on draft agreement 10/10/2022 and return to Project Manager 10/10/2022 © GC b. Confirm insurance requirements, create Job on Project Manager PINS, send PINS insurance notice to contractor ❑x GC — ❑X 3 Forward three (3) originals of final agreement to 10/17/2022iy Project Manager contractor for their signature When necessary, * contractor -signed agreement 4 ❑X N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or ❑ Public Works Contract > $125,000 Date of Council approval Click here to enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City�, 1 ��7/2-- /r Attorney with printed copy of this routing form Review and approve hard copy of signed 6 City Attorney agreement��- _ 7 City Attorney Review and approve insurance in PINS, and bonds 1 (for Public Works Contracts) i 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager f