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CITY OF ARCADIA
PROFESSIONAL SERVICES AGREEMENT REGARDING
SERVICES RELATED TO FORMATION OF A PROPERTY BASED IMPROVEMENT
DISTRICT (PBID) FOR DOWNTOWN ARCADIA
1. PARTIES AND DATE.
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This Agreement is made and entered into this °day of
2012 by and between the City of Arcadia, a charter city organized under the
Constitution and laws of the State of California with its principal place of business at 240
West Huntington Drive, Arcadia, California 91066 -6021 ( "City ") and New City America,
Inc. a California Corporation with its principal place of business at 710 West Ivy Street,
San Diego, CA 92101 ("Consultant"). City and Consultant are sometimes individually
referred to as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth
in this Agreement. Consultant represents that it is experienced in providing Property
Based Improvement District (PBID) formation services to public clients, is licensed in
the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the formation of a
PBID for Downtown Arcadia ( "Project ") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the professional cost
evaluation consulting services necessary for the Project ( "Services "). The Services are
more particularly described in Exhibit "A" attached hereto and incorporated herein by
reference. All Services shall be subject to, and performed in accordance with, this
Agreement, the exhibits attached hereto and incorporated herein by reference, and all
applicable local, state and federal laws, rules and regulations.
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3.1.2 Term. The term of this Agreement shall be from June 12, 2012 to
September 1, 2013, unless earlier terminated as provided herein. Consultant shall
complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Consultant on an independent contractor
basis and not as an employee. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction and
control. Consultant shall pay all wages, salaries, and other amounts due such
personnel in connection with their performance of Services under this Agreement and
as required by law. Consultant shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to
perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, City shall respond to Consultant's
submittals in a timely manner. Upon request of City, Consultant shall provide a more
detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the prior written approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City
that certain key personnel will perform and coordinate the Services under this
Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon prior written approval
of City. In the event that City and Consultant cannot agree as to the substitution of key
personnel, City shall be entitled to terminate this Agreement for cause. As discussed
below, any personnel who fail or refuse to perform the Services in a manner acceptable
to the City, or who are determined by the City to be uncooperative, incompetent, a
threat to the adequate or timely completion of the Project or a threat to the safety of
persons or property, shall be promptly removed from the Project by the Consultant at
the request of the City. The key personnel for performance of this Agreement are as
follows: Marco Li Mandri, President.
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3.2.5 City's Representative. The City hereby designates Jason
Kruckeberg, Assistant City Manager /Development Services Director, or his designee, to
act as its representative for the performance of this Agreement ( "City's
Representative "). City's Representative shall have the power to act on behalf of the
City for all purposes under this Contract. Consultant shall not accept direction or orders
from any person other than the City's Representative or his or her designee.
3.2.6 Consultant's Representative. Consultant hereby designates Marco
Li Mandri, President, or his designee, to act as its representative for the performance of
this Agreement ( "Consultant's Representative "). Consultant's Representative shall have
full authority to represent and act on behalf of the Consultant for all purposes under this
Agreement. The Consultant's Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with
City staff in the performance of Services and shall be available to City's staff,
consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner,
consistent with the standards generally recognized as being employed by professionals
in the same discipline in the State of California. Consultant represents and maintains
that it is skilled in the professional calling necessary to perform the Services. Finally,
Consultant represents that it, its employees and subcontractors have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to
perform the Services, including a City Business License, and that such licenses and
approvals shall be maintained throughout the term of this Agreement. As provided for in
the indemnification provisions of this Agreement, Consultant shall perform, at its own
cost and expense and without reimbursement from the City, any services necessary to
correct errors or omissions which are caused by the Consultant's failure to comply with
the standard of care provided for herein. Any employee of the Consultant or its sub -
consultants who is determined by the City to be uncooperative, incompetent, a threat to
the adequate or timely completion of the Project, a threat to the safety of persons or
property, or any employee who fails or refuses to perform the Services in a manner
acceptable to the City, shall be promptly removed from the Project by the Consultant
and shall not be re- employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Project or the Services, including all Cal /OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant
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performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the City, Consultant shall be solely responsible for all
costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials,
directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any
failure or alleged failure to comply with such laws, rules or regulations.
3.2.9.1 Immigration Reform and Control Act. Consultant
acknowledges that Consultant, and all subcontractors hired by Consultant to perform
services under this Agreement, are aware of and understand the Immigration Reform
and Control Act ( "IRCA "). Consultant is and shall remain in compliance with the IRCA
and shall ensure that any subcontractors hired by Consultant to perform services under
this Agreement are in compliance with the IRCA. In addition, Consultant agrees to
indemnify, defend and hold harmless the City, its agents, officers and employees, from
any liability, damages or causes of action arising out of or relating to any claims that
Consultant's employees, or the employees of any subcontractor hired by Consultant,
are not authorized to work in the United States for Consultant or its subcontractor and /or
any other claims based upon alleged IRCA violations committed by Consultant or
Consultant's subcontractor(s).
3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not
commence Work under this Agreement until it has provided evidence satisfactory to the
City that it has secured all insurance required under this section. In addition, Consultant
shall not allow any subcontractor to commence work on any subcontract until it has
provided evidence satisfactory to the City that the subcontractor has secured all
insurance required under this section; provided, however, that in lieu thereof, the
Consultant may provide evidence to the City that all subcontractors are additional
insureds under the Consultant's policies of insurance.
3.2.10.2 Minimum Requirements. Consultant shall, at its
expense, procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the Agreement by the Consultant, its agents,
representatives, employees, subcontractors and volunteers. Consultant shall also
name and obtain insurer's consent to naming City, its directors, officials, officers,
employees, agents and volunteers as an additional insured with proof of certificate of
insurance that they are an additional insured. Such insurance shall meet at least the
following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be
when commercially available (occurrence based) at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General
Liability coverage for premises and operations, contractual liability, personal injury,
bodily injury, independent contractors, broadform property damage, explosion, collapse,
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• underground, products and completed operations; Automobile Li
coverage Insurance Services Office Business Auto for any auto owned, leased,
and borrowed by Consultant or for which Consultant is responsible, and (3) Workers'
Compensation and Employer's Liability: Compensation r .. firequired
• of • and • + Liability
City, its directors, officials, officers, employees, agents and volunteers shall be listed as
additional insured. Any deductibles or self - insured retentions must be declared to and
approved by City and conform to the requirements provided in Section 3.2.10.6 herein.
(B) Minimum Limits of Insurance. Consultant shall
maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property damage, with an aggregate
limit of $1,000,000. If Commercial General Liability Insurance or other form with general
aggregate limit is used, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability: $1,000,000 combined single limit per accident
for bodily injury and property damage; and (3) Workers' Compensation and Employer's
Liability: Workers' Compensation limits as required by the Labor Code of the State of
California. Employer's Liability limits of $1,000,000 per accident for bodily injury or
disease.
3.2.10.3 Professional Liability. Consultant shall procure and
maintain, and require its sub - consultants to procure and maintain, for a period of three
(3) years following completion of the Project, errors and omissions liability insurance
appropriate to their profession. Such insurance shall be in an amount not less than
$1,000,000 per claim, and shall be endorsed to include contractual liability.
3.2.10.4 Insurance Endorsements. The insurance policies
shall contain the following provisions, or Consultant shall provide endorsements on
forms supplied or approved by the City to add the following provisions to the insurance
policies:
(A) General Liability. The general liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, employees and
volunteers shall be covered as additional insured with respect to liability arising out of
Services operations and for completed operations performed by or on behalf of the
Consultant, including materials, parts or equipment furnished in connection with such
work; and (2) the insurance coverage shall be primary insurance as respects the City,
its directors, officials, officers, employees and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant's scheduled underlying coverage.
Any insurance or self- insurance maintained by the City, its directors, officials, officers,
employees and volunteers shall be excess of the Consultant's insurance and shall not
be called upon to contribute with it in any way.
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(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the City, its directors, officials, officers, employees,
agents and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned,
leased, hired or borrowed by the Consultant or for which the Consultant is responsible;
and (2) the insurance coverage shall be primary insurance as respects the City, its
directors, officials, officers, employees, agents and volunteers, or if excess, shall stand
in an unbroken chain of coverage excess of the Consultant's scheduled underlying
coverage. Any insurance or self- insurance maintained by the City, its directors, officials,
officers, employees, agents and volunteers shall be excess of the Consultant's
insurance and shall not be called upon to contribute with it in any way.
(C) Workers' Compensation and Employers Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, employees, agents and volunteers for losses paid under the
terms of the insurance policy which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be, reduced or
canceled except after thirty (30) days prior written notice by certified mail, return receipt
requested of cancellation, of intended non - renewal or endorsement reduction in limit or
scope of coverage; provided, however, that in the event of cancellation due solely to
non - payment of premium, ten (10) days notice of cancellation for non - payment of
premium may instead be given to the City.; and (B) any failure to comply with reporting
or other provisions of the policies, including breaches of warranties, shall not affect
coverage provided to the City, its directors, officials, officers, employees, agents and
volunteers.
3.2.10.5 Separation of Insureds; No Special Limitations. All
insurance required by this Section shall contain standard separation of insureds
provisions. In addition, such insurance shall not contain any special limitations on the
scope of protection afforded to the City, its directors, officials, officers, employees,
agents and volunteers.
3.2.10.6 Deductibles and Self- Insurance Retentions. Any
deductibles or self- insured retentions must be declared to and approved by the City.
Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall
reduce or eliminate such deductibles or self- insured retentions as respects the City, its
directors, officials, officers, employees, agents and volunteers; or (2) the Consultant
shall procure a bond guaranteeing payment of losses and related investigation costs,
claims and administrative and defense expenses.
3.2.10.7 Acceptabilit V of Insurers. Insurance is to be placed
with insurers with a current A.M. Best's rating no less than A:VIII, admitted or approved
to do business in California, and satisfactory to the City.
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3.2.10.8 Verification of Coverage. Consultant shall furnish City
with complete and accurate copies of current certificates of insurance and
endorsements effecting coverage required by this Agreement on forms satisfactory to
the City. The certificates and endorsements for each insurance policy shall be signed
by a person authorized by that insurer to bind coverage on its behalf, and shall be on
forms provided by the City if requested. Copies of all certificates and endorsements
must be received and approved by the City before work commences. The City reserves
the right to require complete, certified copies of all required insurance policies, at any
time.
3.2.10.9 Safety. Consultant shall execute and maintain its
work so as to avoid injury or damage to any person or property. In carrying out its
Services, the Consultant shall at all times be in compliance with all applicable local,
state and federal laws, rules and regulations, and shall exercise all necessary
precautions for the safety of employees appropriate to the nature of the work and the
conditions under which the work is to be performed. Safety precautions as applicable
shall include, but shall not be limited to: (A) adequate life protection and life saving
equipment and procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang
planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to
prevent accidents or injuries; and (C) adequate facilities for the proper inspection and
maintenance of all safety measures.
3.2.10.10 Material Breach. Lack of insurance does not negate
Consultant's obligations under this Agreement. Maintenance of proper insurance
coverage is a material element of this Agreement and failure to maintain or renew
coverage or to provide evidence of renewal may be treated by the City as a material
breach of the Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
reimbursements which receive the City's prior written authorization, for all Services
rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and
incorporated herein by reference. The total compensation shall not exceed Seventy
Thousand Dollars and Zero Cents ($70,000.00) without written approval of the City
Manager. Extra Work may be authorized, as described below, and if authorized, will be
compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a
monthly itemized statement which indicates work completed and hours of Services
rendered by Consultant. The statement shall describe the amount of Services and
supplies provided since the initial commencement date, or since the start of the
subsequent billing periods, as appropriate, through the date of the statement. City
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shall, within forty -five (45) days of receiving such statement, review the statement and
pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed
for any expenses unless prior written authorization is obtained from the City.
3.3.4 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 anticipate would be necessary at the
execution of this Agreement. Consultant shall not perform, nor be compensated for,
Extra Work without prior written authorization from City's Representative.
3.4 Accounting " - •
3.4.1 Maintenance and Inspection. Consultant shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Consultant shall allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of such records and any other documents created pursuant to this
Agreement. Consultant shall allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice
to Consultant, terminate the whole or any part of this Agreement at any time and without
cause by giving written notice to Consultant of such termination, and specifying the
effective date thereof, at least seven (7) days before the effective date of such
termination. Upon termination, Consultant shall be compensated only for those services
which have been adequately rendered to City, and Consultant shall be entitled to no
further compensation. Consultant may not terminate this Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated
as provided herein, City may require Consultant to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Consultant in
connection with the performance of Services under this Agreement. Consultant shall be
required to provide such document and other information within fifteen (15) days of the
request.
3.5.1.3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms
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and in such manner as it may determine appropriate, services similar to those
terminated.
Pelivery of Notices. All notices permitted or required under
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
M
New City America, Inc.
710 West Ivy Street
San Diego, CA 92101
Attn: Marco Li Mandri
President
City of Arcadia
240 West Huntington drive
Arcadia, CA 91066 -6021
Attn: Jason Kruckeberg, AICP
Assistant City Manager /Development Services Director
Such notice shall be deemed made when personally delivered or when mailed, forty -
eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property.
This Agreement creates a non- exclusive 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 regard
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
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its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and 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. Nor shall
such materials be disclosed to any person or entity not connected with the performance
of the Services or the Project. 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 of the Project, or any publicity pertaining to the Services or the Project in
any magazine, trade paper, newspaper, television or radio production or other similar
medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with
one another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Indemnification.
3.5.5.1 To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold the City, its officials, officers, employees, volunteers and
agents free and harmless from any and all claims, demands, causes of action, costs,
expenses, liability, loss, damage or injury, in law or equity, to property or persons,
including wrongful death, in any manner arising out of or incident to any alleged acts,
omissions or willful misconduct of Consultant, its officials, officers, employees, agents,
consultants and contractors arising out of or in connection with the performance of the
Services, the Project or this Agreement, including without limitation the payment of all
consequential damages and attorney's fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil
Code Section 2782.8, the above indemnity shall be limited, to the extent required by
Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Consultant. Consultant shall
defend with Legal Counsel of City's choosing, at Consultant's own cost, expense and
risk, any and all such aforesaid suits, actions or other legal proceedings of every kind
that may be brought or instituted against City, its directors, officials, officers, employees,
agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree
that may be rendered against City or its directors, officials, officers, employees, agents
or volunteers, in any such suit, action or other legal proceeding arising from
Consultant's performance of the Services, the Project or this Agreement, except to the
extent that liability is caused by any negligence or willful misconduct by the City or its
directors, officials, officers, employees, agents or volunteers. Consultant shall
reimburse City and its directors, officials, officers, employees, agents and/or volunteers,
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for f all legal expenses f costs incurred by of i i
therewith or i i the indemnity provided. obligation ti
indemnify • not be restricted to insurance proceeds, received f
directors, officials, officers, • i agents or i .. effect
immediately upon i of Agreement.
3.5.5.2 The duty to defend and to hold harmless, as set forth
above, shall include the duty to defend as established by Section 2778 of the California
Civil Code, and the duty to defend shall arise upon the making of any claim or demand
against the City, its respective officials, officers, agents, employees and representatives,
notwithstanding that no adjudication of the underlying facts has occurred, and whether
or not Consultant has been named in the claim or lawsuit.
3.5.6 Entire Agreement. This Agreement contains the entire Agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both Parties.
3.5.7 Governing Law. This Agreement shall be governed by the laws of
the State of California. Venue shall be in Los Angeles County.
3.5.8 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.9 City's Right to Employ Other Consultants. City reserves right to
employ other consultants in connection with this Project.
3.5.10 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
3.5.11 Assignment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
3.5.12 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for
or against any Party. Any term referencing time, days or period for performance shall
be deemed calendar days and not work days. All references to Consultant include all
personnel, employees, agents, and subcontractors of Consultant, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement.
The captions of the various articles and paragraphs are for convenience and ease of
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reference only, and do not define, limit, augment, or describe the scope, content, or
intent of this Agreement.
3.5.13 Amendment; Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.14 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel, or otherwise.
3.5.15 ' No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.16 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.17 Prohibited Interests. 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 therefrom.
3.5.18 Equal Opportunity Employment. 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, sexual orientation 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 Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines
currently in effect or hereinafter enacted.
3.5.19 Labor Certification. By its signature hereunder, Consultant certifies
that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services.
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3.5.20 AuthoritV to Enter Acireement. Consultant has all requisite power
and authority • 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 bind each
respective Party.
3.5.21 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein,
without prior written approval of City. Subcontracts, if any, shall contain a provision
making them subject to all provisions stipulated in this Agreement.
In witness whereof the parties have executed this Professional Services
Agreement on the date set forth below.
Dominic Lazzaretto
City Manager
Stephen P. Deitsch
City Attorney
Revised 12/10 LM
13
Ja'son Krudkeberg Date
Assistant City Manager/
Development Services Director
EXHIBIT "A"
SCOPE OF SERVICES
Consultant shall perform the following services as outlined in their proposal dated
January 15, 2012. Additionally, while the contract is between the City of Arcadia and
New City America, it is understood that New City America will work directly with the
Arcadia Downtown Business Association on the development of a PBID in downtown
Arcadia
SCOPE OF WORK -- PROVIDE AN ITEMIZED SCOPE OF WORK WITH OVERALL SCHEDULE, AND
INDICATE THE ANTICIPATED TIME TO COMPLETE EACH STEP
Phis is a prafessfonal services contract with investigation and formation costs of the Downtown
Arcadia Downtown Special Benefits District based upon a time and materials formula. Tlie
contract amount may
be negotiated once New City America has been
selected as the preferred
consultant group.
Task in the Scope of
Response by AICA
j Estimated Time Line for
Services
{ Completion
i.. _ ... __. .. .
Meet w;th ADBA Core
NCA has years of experience working with
I Assuming the contract
Group and Familiarize
i Downtown stakeholder groups- NC_A will get
commencing in April 7017,
Team with Downtown
up to speed on the level of development of the
j this task would be achieved
Arcadia
ADBA based upon reading meeting minutes,
n April and May
City report,, reviewing any Downtown specific
1
�JIanS ci71d TeWfewtrl Committee lice 5tt UCt ll C'e
e g
- __...
Work with ADBA to
NCA will discuss the ros and cons of the
pros
Based upon su support of the
UP
Develop Goals and
PBID /CBD and how this is the most successful
City and the ADBA, the
Budget for Downtown
strategy in expediting the revitalization
survey would be mailed out j
i Arcadia
process. NCA will conduct a standard special
n May and be due in lone j
benefits written survey and mail it out to the
= or early July, The results of
maximur'n pool of possible PBID stakeholders.
the survey would be
I Ile survey will determine conceptual support
reviewed by the ADBA at
for the PBID, where that support exists in
the end of July and this
j Downtown, the types of services desired and
j would be the basis for
I the frequency of those services,
proceeding with formation ;
1 of thedlstrict
_ _...._..
Meetings with Property
NCA would create a new CBD /PBID Steering
—_... __.
the PBID /CBD Steering,
I
Owners and Business
? Committee to lead the effort of the PBID
Cormlintee would be
Owners
Investigation and formation. The Steering
( fonne to review the
I Committee would inr_fude all ADBA members,
proposed survey, the
City and Redevelopment officials, as well as
potential survey {
those property owners who have expressed
boundaries and lead the
interest in Downtown renewal in the past.
overall effort_ The Steering
Marco Li Mandri of NCA would lead Neese
Committee will meet firs! In
meetings and prepare the agenda and working
i May and work( throughout
documents for the meetings. This group would
1 the completion of the
i become the Think tank and working group of
proposal in July 2013,
I the effort
1
Additional Marketing
NCA has conducted PBID /CBD campaigns in
activities
Spanish, Vietnamese, Korean, Chinese and
among a variety of different property owners
groups– both large and small. We have
marketing, and promoted CBD /PBID.s
successfully m at least 100 locations in
California over the past 15 years, resulting in
the formation of over 60 districts being fornned
A -1
C c im7,dete P81,) Plan
RCA wi ---_ _
I( wrath and present a ntrMber of
t is anticipated that the
Process, it Ouding
PBiD /CBD plans and present there to the
PBID /CB0 plan will be
Drafting Docuirr ms,
Steering Committee, The Comrmttee Will
written and prevented to
Voting, and
review and eventually approve a plan that
the Steering t:cmirnitte.e
Presentation to the City
generates enough revenue to make an impact
i from August through
Council /Redevelopment
but not be an unreasonable. burden. Once they
C November 2()12, r,ntil
Agency
plan has been Campleted, NCA will have the
approved, The plar> >,viH
plan approved by an Assessment Engineer and
i then be certified by an
then submit it to the Arcadia City Attorney for
assessment engineer in
review and approval. Once this process has
Novo nhe r and then be
i been completed, NCA will write and distribute.
given to the City Al`torney
f the petition Working with the rafeeri rig
It is a55i.f nlPCl that the plc'!1
Committee to coldrtct the necessary signatures
will be fully approved in
to bring it to the public. hearing and vote: of the
December and the petition !
property owners
process will commence in
early lanuaiy 2013, The
petitions will be rornpie>ted ;
by (lurch and it is
anticipated that the
-
I Resolution of intent will of
approved in, May with the
frnai public heairing /vote
being held rnJuly
Coordinate with Agency
NCA will be the main point of contract between
NCA will play this role from
staff — Contract
the ADBA, Downtown property owners, the
the beginning to the end of
nanagement
City and the Redevelopment Agency officials.
� this process
NCA has extensive experience filling this
relationship and working to bring all forces
i together to implement this process
!,
Other tasks
NCA can also be contracted with the City of the
i This trans'itio'n pencid
new PBID /CBD stakeholders group, to
;would occur trtirvi August
transition the ADBA from an advocacy group to
through December 2013 .
a functioning District Management Corporation
The first funds for the new
that will administer the new district under
district would be
contract with the City of Arcadia
transferred in Dec. 2013.
A -I
F; 4 �,- �
Consultant shall begin services on June 12, 2012 to September 30, 2013.
is
Exhibit "C"
Total compensation shall not exceed a lump sum of Seventy Thousand Dollars and
Zero Cents ($70,000.00). There are no reimbursable amounts as part of this agreement.
COST PROPOSAL - THE PROPOSAL SHALL INCLUDE A PROJECT COST TO COMPLETE THE SCOPE 01:
SERVICES AND THE METHODOLOGY PROPOSED. THE PROPOSAL SHALL ALSO INCLUDE A COST
BREAKDOWN FOR EACH STEP IN THE SCOPE OF WORK. THE CONSULTANT SHALL ALSO PROVIDE A
SCHEDULE OF HOURLY BILLING RATES FOR THE VARIOUS STAFF MEMBERS INVOLVED IN THE PROJECT,
SHOULD THE NEED FOR EXTRA SERVICES ARISE. THE COST PROPOSAL SHALL INCLUDE A LIST OF
REIMBURSABLE EXPENSES, IF ANY, THAT THE CONSULTANT WILL SUBMIT AS PART OF THE WORK ON
THE PROJECT (EXCLUDING TRAVEL), INCLUDING ANY OVERHEAD OR MARKUP
i... .. .. ..... --- - - . .. ...... . . -
Estimated Tane ine Estimated costs
Function and Task to be Completed
Phose I - Investination
(DOIA'A'TOWNARCADIA SPECIAL BENEFITS 06 RiCT
INVESTICArIVE STAGE)
I With support from City Staff and the ADBA and Life
April 10,000
Arcadia Stakeholders Group, invite area business and
property owners to form a Downtown Arcadia
Benefits District (SBD) Steering Committee, Review initial i
boundaries for the CBD stuffy area with the Steering
Committee; determine the scope of the investigation.
datnfii- a-d investigate contacts for property
Create
-wners with - Ili study area,
, Agree to study area boundaries with Arcadia Downtown
April I See above
Special Benefits District Steering Committee, prepare a
parcel map.
T Create and distribute a Arcadia Downtown Special
April See. above.
Benefits District mailed written survey to property owners
ascertaininpLonc,g_p ial support for special benefits district
and priority of services within the designated study area
I
4. Plot survey results on parcel map, identifying support
May - June
and opposition by color
S. Present survey results to the Arcadia Downtown Special
June i
Benefits District Steering Cart ul nt tee, brief City Manager's
office as needed.
6, At the conclusion of the investigation, the Arcadrit
July - August $ 8,000
Downtown Special Benefits District Steering Committee
will make the determination if conceptual weighted
slipbMt exists for moving forward to the formation stage
of The contract, If yes, set final boundaries of the district
Get approval of the C6D Steering Committee to work with
tile City Manager's office to craft the process for the SBD
formation to the City Council. Begin writing the new
Arcadia enabling ordinance with the City Attorney
.......... .. '--- . . . ........... ..
Estimated MoKimurri Time and Material Costs rf
Professional 5erwcesfor the Arcadia Downtown
$30,000.00
Special Hpnefit5 District /ove.stigutive Stoge
C-1
Af,CI 0 00tNNT0tAOV S,F1Mfit f.3tnrrirs DISMicr
f.stimoted Firru line Estimated costs '.
PHASE' 11 - cORMATION STAGE
i 1 Write new5lettflr surnrnariling the, Downtown Arcadia �...
September
eciai Benin, Lrstrict, {SBD stuvey iesi.dts. Send 01-it
i pioperty ve0lication forms to all afferced property
owners. Work on new enabling ordinance if necessary.
Submit property database to the City for verification of
� database. �
�
?. Write 'tie first craft preliminary Arcadia Downtown i
October - November 5 17,000
Special tenefits District M8nagernent District Plan, submit
= to the SBD Steering C:ornrnittee, rneet frequently with
Steering Committee until the plan has been fully
supported. the Management District Plan is a legal
document which will include the costs per property Owner;
1,
list of special benefit services to be funded; benefit zones,
if any; frequency of services; boundaries; t:errn of the
district and management. _. �_
. _,......_._. .�........ . _ _p...___ ..
_....._...._
3. Final re= the SBD Management ent District Plan; get
�.
Novernber 8,006
approval from the Arcadia Downtown Special Benefits
District Steering Committee. Communicate with property
owners on status of the district'fvrrnation process.
4_ Have plan approved by an independent, non -city 1
December — JanuaryJ,OOQ for
certified assessment engineer, Once certified, have plan �
2013 � Assessment
submitted to the City Manager's office for review. Once
Engineer
City Attorney's office has reviewed and approved the plan,
initiate petition drive, in coordination with the SBD
Steering (r7nYmittei rnemhers to trigger the ballot, mail
out plan surnmary to all property owners
5. CaMplete petition drive, submit petitions to the City
February 7,UC0
Managers office
6 Update property owners on the progress of formation
Throughout pro cess C No costs
of ort
included in all of =,
I the Phases
7. LNorir with the City on ballot preparation_ if necessary
April See above
- .......
S. Follow Up with Arcadia Downtown Special Benefits
May—July S 4,D{70
District Steering Cornn0ttee to ensure weighted majority i
prone, 'tyOwners vote and return ballots i
9 Attend public hearing, help City in professing ballots
June icily S 6,000
Estirrtoted Costs of Professionol Sr:rvir_es for the
5' 40,000M
formation of the Downtown Arcadia Speciol Benefits
District including direct expenses and engineer's
i
report
' Total. Estimated COstS of investigation, Formation,
70,000.00
Direct Expenses including Assessment Engineer's
Report (excluding travel)
14
C °1
The hourly rates listed below are based upon the aSSUITIP60f) th8t this is a tiMe a,,,,d maieiials
con/r act, °xth deliverables expected atmnou�s stages of the »r�ocme,
I Marco Li Mandri, President, S 300.00 per hour
120 - 150 hours
-oject Manager
S 115,00 per hour 80-10011 oi-111
Assistant roject Manager I
100 - 1-20 hours
Work
I Chris Gornez, Design and Research7l 80.00 per, hour 10 hours
i John Li Mandri, Mapping, Fie,]ij 60.00 pei hour 40 - 60 hours
work
Administration $ 80,00 per hour 12 - 15 hours
Marlena Zawadzki, Clerical 5 40,00 per hour To be determined
Ed Henning, EIAA and
L ___._Assessment Engineer $2,000 flat fee
,j This is a professional services contract with anticipated *m6 n'odvr/m||e$nnws. This
emmam includes the costs of an independent Assessment Engineer and n^s6hie �oa|
related expenses, New [hv wncnca, Inc. is on independent private corporation
established In the state of California, which specinUzcs in business community
assessment district formation, consulting and administration arid will bear all payroll
and personnel related costs.
,j Billings will besubmitted periodically as direct expenses are incurred, Diiect cont
reimbursement ponnc"ts dxW be due upon receipt. eH|iugp ,bvD be based v000
delineated reimbursement of direct expenses, (postage, copies, layout, production,
properly database subscription services and adminiu,auve).
�
The terms and conditions of this proposal shall be honored for 60 days ;ommencn:on
the date of the cover letter.
EXCEPTIONS — THE AGENCY xeanvso THE RIGHT To GRANT excspnomsTo THE RFP. MowsvsR,
CONSULTANT MUST NOTE ANY EXCEPTIONS, AND THE REASON, /w THE PROPOSAL
There are no exceptions nrconditions that are part uf this proposal,
15