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HomeMy WebLinkAboutItem 12a - ARPA Funds for Economic Development Programs and Projects DATE: November 15, 2022 TO: Honorable Mayor and City Council FROM: Jason Kruckeberg, Assistant City Manager/Development Services Director By: Tim Schwehr, Economic Development Manager SUBJECT: ALLOCATE $215,000 IN AMERICAN RESCUE PLAN ACT (“ARPA”) FUNDS FOR THE FOLLOWING ECONOMIC DEVELOPMENT PROGRAMS AND PROJECTS: A. THE 2022 MERRY & BRIGHT HOLIDAY SHOPPING PROGRAM IN THE AMOUNT OF $100,000; B. THE ARCADIA CHAMBER OF COMMERCE MEMBERSHIP ASSISTANCE PROGRAM IN THE AMOUNT OF $50,000; AND C. A PROFESSIONAL SERVICES AGREEMENT WITH DESIGN NINE, INC. FOR THE DEVELOPMENT OF A DOWNTOWN ARCADIA BROADBAND STRATEGIC PLAN AND THE EVALUATION OF A CITYWIDE FIBEROPTIC BROADBAND PROPOSAL IN AN AMOUNT NOT TO EXCEED $65,000 Recommendation: Approve CEQA: Not a Project SUMMARY Based on prior City Council discussion and direction earlier this year regarding use of American Rescue Plan Act (“ARPA”) funds, three economic and financial assistance programs and projects are proposed for approval: the Merry & Bright Holiday Shopping Program, the Arcadia Chamber of Commerce Membership Assistance Program, and a Professional Services Agreement for a broadband strategic plan for Downtown Arcadia. A summary of each program is included in this staff report and additional details are provided in the program summaries included as Attachments “A” – “C”. It is recommended that the City Council approve the allocation of $215,000 in ARPA funds for these three programs. BACKGROUND The City has been notified it will receive $8,865,000 in funding through the American Rescue Plan Act (“ARPA”). This funding is available to use for various purposes, including ARPA Allocations for Economic Development November 15, 2022 Page 2 of 6 economic and financial assistance. To date, the City Council has approved $1,350,000 in ARPA funds for economic and financial assistance programs and projects. The City Council has also provided direction regarding use of an additional $215,000 in ARPA funds for the three economic development programs and projects included in this agenda item. The table below shows the allocation amount, current status, and City Council action to date for each ARPA-funded economic and financial assistance program and project. Program/Project Funding Status and Council Action to Date Small Business Grant Program $750,000 Approved by City Council September 6, 2022. Application submittal period of October 24 – December 29, 2022. Small Business Permit Assistance Program $250,000 Approved by City Council September 6, 2022. Applications accepted beginning November 15, 2022. Homeless Prevention & Diversion Program $250,000 Approved by City Council May 17, 2022. Merry & Bright Holiday Shopping Program $200,000 Initial $100,000 approved by City Council November 2, 2021, for the 2021 winter holiday season. Remaining funding pending approval but earmarked by City Council at March 1, 2022 study session for 2022 winter holiday season or other future date. Originally $150,000 remained for this program but $50,000 was moved from this project and placed in the Chamber of Commerce program fund. Chamber of Commerce Membership Assistance Program $50,000 Pending approval. $50,000 earmarked by City Council at September 6, 2022, regular meeting for this program. Moved from “Merry and Bright” allocation. Downtown Arcadia Broadband Study/Strategic Plan & Evaluation of Citywide Fiberoptic Proposal $65,000* Pending approval of PSA with Design Nine Inc. $50,000 earmarked by the City Council for Downtown broadband study at the March 1, 2022, study session. Scope expanded per City Council direction at October 18, 2022, study session to include evaluation of citywide fiberoptic project. Total $1,565,000 *Includes $50,000 for Downtown Broadband Study and $15,000 for review of citywide fiberoptic proposal ARPA Allocations for Economic Development November 15, 2022 Page 3 of 6 DISCUSSION Based on prior City Council discussion and direction earlier this year regarding use of American Rescue Plan Act (“ARPA”) funds, the following economic and financial assistance programs and projects have been prepared for the City Council’s review and approval: 1. The 2022 Merry & Bright Holiday Shopping Program in the amount of $100,000; 2. The Arcadia Chamber of Commerce Membership Assistance Program in the amount of $50,000; and 3. A Downtown Arcadia Broadband Strategic Plan and Citywide Fiberoptic Proposal Review and Professional Services Agreement with Design Nine, Inc. in the amount of $65,000. If approved as proposed, the goal of these programs is to provide financial assistance to Arcadia businesses impacted by the COVID-19 pandemic and to promote long-term local economic recovery and growth. Utilizing a portion of the City’s American Rescue Plan Act funds for this purpose is an appropriate use of this funding consistent with the goals and objectives of the authorizing legislation. A summary and discussion of each program and project is included below. 2022 Merry & Bright Holiday Shopping Program This program proposes the use of $100,000 in ARPA funds to purchase gift cards valued at $25, $50, and $75 for the purpose of incentivizing in-person shopping at Arcadia brick- and-mortar businesses during the 2022 winter holiday season. Customers who spend a minimum of $150 combined at three or more Arcadia brick-and-mortar businesses are eligible to submit receipts to the Shops at Santa Anita Mall Concierge Desk and redeem a gift card valued at $25. They will receive a $50 card for $300 in purchases, or $75 with $500 in total combined spend. The gift cards issued will be Visa, Master Card, or American Express and usable at any location in or outside of the City that accepts this form of payment; however, they will be branded with Arcadia and Shops at Santa Anita imagery to encourage local spending of those funds. If approved, the program is tentatively scheduled to run December 1 – 24, 2022, or until all gift cards have been issued. Additional program terms, conditions, and details are provided in the Merry & Bright Program Summary included as Attachment “A” to this report. The City and Westfield Santa Anita partnered last December on this same program using $100,000 in ARPA funds. A total of 1,810 customers participated last year with receipts submitted for gift card redemption totaling $986,738 in local spending. The program received very positive feedback from both the business community and program participants, and there were no significant issues or problems with administration. If approved by the City Council for the 2022 winter holiday season, the City will enter into ARPA Allocations for Economic Development November 15, 2022 Page 4 of 6 an agreement with the Shops at Santa Anita for the disbursement of $100,000 of ARPA funds for this purpose. Through an agreement with the new mall ownership, former Westfield staff continue to manage this property and similar to last year, would oversee the submittal of receipts, issuance of gift cards, and provide customer service for the program from their on-site concierge desk. One decision point for the City Council is to determine the amount of ARPA funding to allocate to the program. Originally, a total of $250,000 was allocated to the program. Last year, the City Council authorized $100,000 to be spent as the timeline was short and there was an interest in evaluating how successful the program would be. Subsequently, the City Council chose to move $50,000 from this program to the Chamber of Commerce Membership program. Now, the Council may decide to allocate the remaining $100,000 as shown in the Staff Report, or may choose to allocate the original $150,000 remaining from the first approval. Should the City Council wish to allocate the original amount from the first approval, it is anticipated that any additional funding would be well utilized by the retail community. At this time, there are unallocated ARPA funds available to support an additional allocation to this program. Arcadia Chamber of Commerce Membership Assistance Program This program proposes the use of $50,000 in ARPA funds to assist Arcadia small businesses to join or rejoin the Arcadia Chamber of Commerce. Approved participants would be eligible to receive up to one year of Chamber membership dues (currently $280) paid for through this program. To qualify, a business would need to have a physical location in the City of Arcadia, to have been open for a minimum of one year, and not be a current member of the Arcadia Chamber of Commerce. Applications for this program would be submitted directly to the Arcadia Chamber for their review and approval. Businesses receiving assistance through this program would be required to attend a Chamber orientation and at least one in-person event within the first 90 days of membership. Additional program details and requirements are outlined in the Arcadia Stronger Program Proposal included as Attachment “B” to this report. If approved by the City Council, an initial $25,000 disbursement of ARPA funds would be made to the Arcadia Chamber of Commerce to initiate this program. The Chamber would provide the City with regular updates on the number of program participants and funding. A second disbursement of up to $25,000 would be made at a later date based on program demand and funding need. Any unspent funds allocated to this program could be repurposed by the City Council, including other uses in support of the Arcadia Chamber of Commerce. Downtown Broadband Strategic Plan and Review of Citywide Fiberoptic Proposal A Professional Services Agreement with Design Nine, Inc. is recommended for approval in an amount not to exceed $65,000, for the completion of a Downtown Arcadia ARPA Allocations for Economic Development November 15, 2022 Page 5 of 6 Broadband Strategic Plan, and to assist the City with the review and analysis of a proposed public-private partnership to install a citywide fiberoptic network in the public right-of-way. The Agreement includes $48,750 for the completion of the Downtown Arcadia Broadband Strategic Plan. A Request for Proposals (“RFP”) for this project was issued by the City in July 2022. A five-person panel convened to review the three proposals received in response to the RFP and interview with the top two scoring firms. As a result of this evaluation process, Design Nine, Inc. has been selected as the preferred consultant for this project. The table below shows the bid amount, hourly rate, and evaluation rating for each of the three proposals received. Design Nine, Inc. received the highest rating of the three firms who bid on the project based on their knowledge of and prior experience with completing similar projects, their lower hourly rate, and the overall quality of their proposal. Firm Name Bid Amount Hourly Rate Evaluation Rating (100 max) Design Nine, Inc. $48,750 $125 92 Solarity $48,200 $185 87 Gunnerson Consulting $49,250 $250 64 Following selection of Design Nine Inc. as the preferred consultant for the Downtown Broadband Strategic Plan, the City was approached by a privately-funded broadband infrastructure company regarding a potential public-private partnership with the City to install a citywide fiberoptic network in the public right-of-way. Based on the City Council’s discussion and direction at the October 18, 2022, study session on this topic, additional funding in the amount of $16,250 has been included in the Professional Service Agreement with Design Nine, Inc. to assist the City with the review and evaluation of this proposal. The additional $16,250 in funding will be utilized only on an as-needed basis and invoiced at the consulting firm’s $125 hourly rate. A copy of the Professional Services Agreement with Design Nine, Inc. is included as Attachment “C” to the staff report. ENVIRONMENTAL ANALYSIS The proposed action does not constitute a project under the California Environmental Quality Act (“CEQA”), as it can be seen with certainty that it will have no impact on the environment. Thus, this matter is exempt under CEQA. FISCAL IMPACT The City has been allocated a total of $8,865,000 in American Rescue Plan Act (“ARPA”) funding available to use for various purposes, including economic assistance. Allocating $215,000 of the City’s ARPA funds to the three programs and projects outlined above is an appropriate use of ARPA funding consistent with its objective to provide economic assistance to residents and businesses impacted by the COVID-19 pandemic. ARPA Allocations for Economic Development November 15, 2022 Page 6 of 6 Additionally, should the City Council wish to allocate an additional $50,000 to the Merry & Bright Program, there are ample unprogrammed ARPA funds available to cover this expenditure. No General Fund dollars, other than staff time already budgeted, will be utilized for these programs. RECOMMENDATION It is recommended that the City Council determine that this action does not constitute a project and is, therefore, exempt under, the California Environmental Quality Act (“CEQA”); and approve the allocation of $215,000 in American Rescue Plan Act (“ARPA”) funds for the following economic development programs and projects: A. The 2022 Merry & Bright Holiday Shopping Program in the amount of $100,000; B. The Arcadia Chamber of Commerce Membership Assistance Program in the amount of $50,000; and C. A Professional Services Agreement with Design Nine, Inc. for the development of a Downtown Arcadia Broadband Strategic Plan and the evaluation of a citywide fiber-optic broadband proposal in an amount not to exceed $65,000. Attachment “A”: 2022 Merry & Bright Program Summary Attachment “B”: Arcadia Stronger Program Proposal (Chamber Membership Program) Attachment “C”: Proposed Professional Services Agreement with Design Nine, Inc. 2022 Merry & Bright Program Summary From December 1st through December 24th, 2022 shoppers who spend money at three or more brick-and-mortar retailers or restaurants in Arcadia, including one at the Shops at Santa Anita will be gifted up to $75 in Gift Cards from the City to Shop and Dine in Arcadia. Redeem at the Shops at Santa Anita Concierge Desk while supplies last. Terms and conditions apply, visit www.Arcadia.gov/MerryandBright for details. Reward Thresholds (based on combined spend) •Spend $150 or more, and get a $25 gift card •Spend $300 or more, and get a $50 gift card •Spend $500 or more, and get a $75 gift card Terms and Conditions While supplies last and awarded on a first-come, first-serve basis. Must make purchases at a minimum of three different brick-and-mortar business located in the City of Arcadia between December 1-24, 2022 to qualify. At least one of the three purchases must be made at a brick-and-mortar business located at the Shops at Santa Anita. In-person purchases only. No minimum purchase required at any particular business, but total receipts must be over the required threshold before taxes. Purchases of gift card are not valid and will not count toward total required spend. Receipts from qualifying purchases must be uploaded to the Shop at Santa Anita’s system no later than December 31, 2022 to qualify. No duplicate receipts accepted. Receipts can be uploaded via QR codes located at Santa Anita's concierge desk. Gift cards can only be obtained in person at the Shops at Santa Anita’s concierge desk. Use of gift cards subject to terms on back of gift card. Deposits for financed or layaway purchases must be over the promotional amount before taxes to apply. The Shops at Santa Anita reserves the right to reject any receipt in its sole and absolute discretion. A total of $100,000 in funding has been allocated to this program. Valid ID must be presented and any credit card purchases must match the ID. Limit one gift card redemption per person per giveaway with purchase. 18+ only. Frequently Asked Questions Who is eligible to receive a Merry & Bright Program Gift Card? Anyone who spends a combined $150+ at three or more Arcadia businesses between December 1-24, 2022, provided at least one of the businesses is located at the Shops at Santa Anita. You do not need to be an Arcadia resident to participate. What shopping, dining, and other purchases qualify as eligible spending under this program? Shopping and dining receipts dated December 1-24, 2022 from any brick-and-mortar business located in the City of Arcadia (i.e. any business with a physical storefront in Attachment "A" Arcadia) will be accepted as eligible purchases under this program. For example, spending at any Arcadia-based retail store, restaurant or other food and beverage business, retail service establishment, entertainment-related business, or other business that sells products and/or services direct to the general public is eligible to submit under this program. At least one receipt is required to be from a business located at the Shops at Santa Anita. How and where do I redeem my Gift Card? All Gift Cards are required to be redeemed in person at the Shops at Santa Anita Concierge Desk beginning December 1, 2022 during open mall hours (10am-8pm Sun- Thurs, and 10am-9pm on Fri & Sat) . Please bring all eligible receipts to the Westfield Concierge Desk and then follow the on-site instructions to use your smartphone to upload receipts for verification and receive your Gift Card. Please note that a maximum of 2,000 Gift Cards will be issued through this program on a first-come, first- serve basis. Specific amounts and denominations of these Gift Cards are listed in the Program Terms and Conditions provided above. Where can I spend my Gift Card? Gift cards can be used at any store that accepts this form of payment, both at the Shops at Santa Anita and outside of the mall. What happens after all the Gift Cards have been issued? Can receipts still be submitted to participate in this program or another promotion? A total of $100,000 in funding has been dedicated to this program and gift cards will be issued on a first-come, first-served basis to qualified recipients. No additional funding for gift cards is planned to be funded at this time. All program participation is subject to gift card availability, and once the initial supply has been distributed no additional receipts will be accepted or available to submit for the Merry & Bright Gift Card Program. At this time, there is no plan for additional offerings or other promotional offers after the initial Merry & Bright Card Program funding has been expended and all gift cards have been issued. Are there any additional program restrictions or limitations to be aware of? For additional program information and restrictions, please review the terms and conditions section above. Who can I contact with any further questions? For questions relating to the Gift Card redemption process, please contact the Shops at Santa Anita Call Center at (insert phone number) . For other inquiries or comments related to this program, please contact the Arcadia Economic Development Division by email at EconDev@ArcadiaCA.gov and an Arcadia City Staff Member will respond to your message within 1-to-2 business days. Arcadia Stronger Program Executive Summary The Arcadia Chamber has developed the Arcadia Stronger grant program to create and continue the relationships between businesses and the chamber community. Our focus is on businesses with financial and other difficulties so that they can be a part of the Arcadia Chamber membership and have access to chamber programs and benefits as we work together as a community. We foresee this playing a critical role in leading to a healthier business environment for the city of Arcadia and Arcadia Chamber. Project Background The Arcadia Chamber faced a gross loss of 303 members (138 of these were within the city of Arcadia) since March of 2020 due to the Covid – 19 pandemic and economic decline. Businesses that couldn’t renew their membership gave the following reasons: financial hardship, limited availability due to staff loss and/or business closures during the pandemic and after. Throughout the pandemic and continuing the Arcadia Chamber has stayed open and available to address the networking needs of the local business community. To help the community reengage with restaurants the chamber recreated events, such as changing Taste of Arcadia into Dine Arcadia. Through this transition the Arcadia Chamber was able to meet similar needs of its members to a greater extent by boosting its social media presence and abiding by the health safety standards. As Covid – 19 health restrictions were lifted the Arcadia Chamber continued to meet the needs and requests of its members by reoffering in person events and currently offers a hybrid of virtual and live events for its members. Proposed Solution In using the Arcadia Strong program as a model, we want to expand the outreach and accessibility of the Arcadia Chamber. The Arcadia Chamber will utilize the city’s grant funds to subsidize the complete annual cost of membership for businesses within the city of Arcadia. By utilizing the networking and promotional resources that the Arcadia Chamber offers, these businesses will increase their brand recognition and their presence in the community. This program will help maintain a healthy business environment. Program Eligibility Requirements: Qualifications for a full year membership ($280) •Submission of grant membership application •A current City of Arcadia Business License and be an Arcadia-based business (Business will provide copy of current business license and physical Arcadia-based business address in application process) •Business needs to have been open prior to Dec 1,2021 •Previous membership is not a restriction, both dropped members and new businesses can apply o Membership drop date can be no later than November 1, 2022 Attachment "B" Approval Commitment requirements from applicant (Must be completed within 90 days of acceptance) • Must attend a chambering 101 orientation • Must attend at least one networking event which can include in person or virtual events • Like and follow Arcadia Chamber and City of Arcadia social media o The Arcadia Chamber will like and follow in turn • Submit a piece of promotional material to be posted on Arcadia Chamber’s website, social media and email blasts. Initial Marketing Procedure • Print Marketing mailed/emailed on what the program is, how the city sponsors the program and what the chamber program does. • Video produced by the Arcadia Chamber about Arcadia Stronger program • Chamber Website has landing page with program qualifications and application form, with appropriate links to business license and city of Arcadia website • Physical distribution of Arcadia Stronger promotional material in the business license department and electronically on the business license webpage. • Business walks by Chamber staff and members for educational purposes and distribution of promotional materials. Reporting Plan • The details of the grant program will be included in the six-month chamber reports to the city. 1 Updated Feb. 2020 CITY OF ARCADIA PROFESSIONAL SERVICES AGREEMENT REGARDING DOWNTOWN ARCADIA BROADBAND STRATEGIC PLAN AND REVIEW OF CITYWIDE FIBEROPTIC PROPOSAL This Agreement is made and entered into as of ________________, 2022 by and between the City of Arcadia, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 240 West Huntington Drive, Arcadia, California 91066 (“City”), and Design Nine Inc., a Virginia Corporation, with its principal place of business at 2000 Kraft Drive, Suite 2200, Blacksburg, VA 24060 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement. RECITALS A.City is a public agency of the State of California and is in need of professional services for the following project: Downtown Arcadia Broadband Strategic Plan and Review of Citywide Fiberoptic Proposal (hereinafter referred to as “the Project”). B.Consultant is duly licensed and has the necessary qualifications to provide such services. C.The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1.Services Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” 2. Compensation a.Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B.” b.In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of sixty-five thousand dollars ($65,000.00). Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis. 3.Additional Work If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following Attachment "C" 2 Updated Feb. 2020 manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Term Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). Consultant shall complete the services required hereunder within 270 calendar days. The Notice to Proceed shall set forth the date of commencement of work. 6. Delays in Performance a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 3 Updated Feb. 2020 8. Standard of Care Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9. Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Contractor Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance Consultant shall not commence work for the City until it has provided evidence satisfactory to the City 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 secured all insurance required under this section. a. Commercial General Liability (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following: (1) Bodily Injury and Property Damage (2) Personal Injury/Advertising Injury (3) Premises/Operations Liability (4) Products/Completed Operations Liability (5) Aggregate Limits that Apply per Project 4 Updated Feb. 2020 (6) Explosion, Collapse and Underground (UCX) exclusion deleted (7) Contractual Liability with respect to this Agreement (8) Property Damage (9) Independent Consultants Coverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability (i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers’ Compensation/Employer’s Liability (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts 5 Updated Feb. 2020 indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. d. Professional Liability (Errors and Omissions) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (i) The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 per occurrence for bodily injury and property damage Employer’s Liability $1,000,000 per occurrence Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. 6 Updated Feb. 2020 g. Policy Provisions Required (i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifying Insurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 7 Updated Feb. 2020 i. Additional Insurance Provisions (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), 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 of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. b. To the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s obligations under the above indemnity shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, but shall not otherwise be reduced. If Consultant’s obligations to defend, indemnify, and/or hold harmless arise out of Consultant’s performance of “design professional services” (as that term is defined under Civil Code section 2782.8), then upon Consultant obtaining a final 8 Updated Feb. 2020 adjudication that liability under a claim is caused by the comparative active negligence or willful misconduct of the City, Consultant’s obligations shall be reduced in proportion to the established comparative liability of the City and shall not exceed the Consultant’s proportionate percentage of fault. 13. California Labor Code Requirements a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). b. If the services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. 14. Verification of Employment Eligibility By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same. 9 Updated Feb. 2020 15. Laws and Venue This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Los Angeles, State of California. 16. Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 17. Documents Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 18. Organization Consultant shall assign Andrew Cohill and Jack Maytum as Project Managers. The Project Managers shall not be removed from the Project or reassigned without the prior written consent of the City. 19. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above. 20. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: 10 Updated Feb. 2020 CITY: City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 Attn: Jason Kruckeberg, Assistant City Manager CONSULTANT: Design Nine, Inc. 2000 Kraft Drive, Suite 2200 Blacksburg, VA 24060 Attn: Andrew Cohill, PhD. and shall be effective upon receipt thereof. 21. Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 22. Equal Opportunity Employment Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. 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. 23. Entire Agreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 24. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 25. Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 11 Updated Feb. 2020 26. Non-Waiver None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 27. Time of Essence Time is of the essence for each and every provision of this Agreement. 28. City’s Right to Employ Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 29. 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 director, official, 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. [SIGNATURES ON FOLLOWING PAGE] 12 Updated Feb. 2020 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ARCADIA AND STAR RETAIL ADVISORS IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF ARCADIA DESIGN NINE, INC. By: By: Dominic Lazzaretto Signature City Manager Date: Its: ATTEST: Printed Name By: Date: City Clerk APPROVED AS TO FORM By:___________________________ Signature By: Stephen P. Deitsch Its: ____________________________ City Attorney _______________________________ Printed Name 13 Updated Feb. 2020 EXHIBIT “A” Scope of Services The SCOPE OF SERVICES and principal responsibilities include, but are not limited to, the following tasks: 1) Kick-Off Meeting: Complete a kick-off meeting with City staff to present project objectives, goals, and tasks; share access to information already held by the City, such as existing infrastructure and existing facilities for broadband service; and share existing City policies related to broadband. 2) Inventory of Existing Providers and Fiber-Optic Paths: Identify current broadband service providers operating in Downtown Arcadia and the locations of existing fiber-optic infrastructure in this area. 3) Gap Analysis: Identify locations in Downtown Arcadia that are well-served, underserved, and unserved by showing where the gaps are in existing broadband infrastructure. 4) Public Asset Inventory: Identify the City’s and other public agencies’ current assets in the area that may be utilized to promote broadband, deployment, such as streetlight/traffic controls, SCADA systems, and existing conduit. This inventory can then be used to identify some of the tools available to the City in accomplishing its broadband objectives. Conversely, identifying the absence of some sort of asset or asset class may lead to recommendations to collaborate or acquire that asset or asset class. 5) Engagement with Broadband Providers: Directly engage, or prepare a strategy for the City to engage, the broadband providers with existing infrastructure and service in or around the project area to encourage and facilitate additional deployment of broadband options and infrastructure. Assess relationship management by the City with broadband providers and outline strategies that could facilitate improved cooperation in support of both City and provider broadband objectives. 6) Identification of Obstacles: Identify obstacles to broadband deployment in Downtown Arcadia. This may include physical, legal, regulatory, financial, and other obstacles. Identifying obstacles will help advise the Arcadia City Council as it decides how to promote further broadband deployment not only within this area but throughout the City. 7) Identification of Anchors: Identify potential anchor customers that may individually justify private-sector investment in broadband infrastructure. Also identify potential strategies to leverage existing anchors in support of the City’s broadband objectives for Downtown Arcadia. 8) Recommend Policies and Actions to Promote Broadband Deployment: Outline potential courses of action the City may undertake to promote additional broadband deployment within Downtown Arcadia. These actions may include regulatory changes, legislative changes, adoption of new ordinances (such as a “dig once” approach), community development and planning process workflow changes, collaborative ideas with other utility or public sector agencies, a process to identify potential revenue generation opportunities for the City, and public-private partnerships, among others. Include a high-level, rough cost estimate for each recommendation. 9) Identify Funding Sources: Identify potential sources of funding for implementation of the recommended broadband policies and actions. 14 Updated Feb. 2020 10) Evaluation of Citywide Fiberoptic Proposal: Assist the City to review and evaluate the merits of a recently proposed public-private partnership for installation of a citywide fiberoptic network in the public right-of-way. Work for this task shall be completed on an as-needed basis only with prior written authorization for any work related to this task provided by the City. As described in Exhibit B to this Agreement, Consultant shall invoice the City for work related to this task on an hourly basis. 15 Updated Feb. 2020 EXHIBIT “B” Schedule of Charges/Payments The compensation for this Agreement shall not exceed $65,000 with a $125 hourly rate unless prior written authorization is provided by the City. The compensation for Task Nos. 1 – 9 in the Scope of Services shall not exceed $48,750. The compensation for Scope of Services item no. 10 shall not exceed $16,250 and work related to this task shall only be completed on an as- needed basis with prior written authorization from the City and billed at a $125 hourly rate. Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a progress report that indicates the amount of budget and hours spent on each task. Compensation shall not be provided for any work performed outside of the scope of services without the prior written consent of the City. This is a time-and-materials contract. 16 Updated Feb. 2020 EXHIBIT “C” Activity Schedule The schedule of services shall commence on November 23, 2022 and conclude no later than August 20, 2023.