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HomeMy WebLinkAbout04774 - MUNIFINANCIAL COST SERVICE FEE STUDY PLANNING ENGINEERING BUILDING Muni Financial Cost Service Fee Study AGREEMENT #4774 CITY OF PALM SPRINGS CM signed 9-23-03 CONTRACT SERVICE AGREEMENT THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this 21st day of August, 2003, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City') and MuniFinancial (herein "Contractor"). The term Contractor includes professionals performing in a consulting capacity. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement,the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments,taxes, penalties or interest levied,assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor(a) has thoroughly investigated and considered the scope of services to be performed; (b) has carefully considered how the services should be performed; and (c)fully understands the facilities, difficulties and restrictions attending performance of the services underthis Agreement. If the services involve work upon any site, Contractor warrants that Contractor has, orwill, investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions,which will materially affect the performance of the services hereunder, Contractorshall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. Agreement with MuniFinancialtiVGtG tt August 21,2003 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers,documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services,without invalidating this Agreement,to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000;whichever is less, or in the time to perform of up to one hundred eighty(180)days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the Special Requirements attached hereto as Exhibit Band incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions in Exhibit B shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the Schedule of Compensation attached hereto as Exhibit C and incorporated herein by this reference, but not exceeding the maximum contract amount of Twenty Four Thousand Eight Hundred Dollars ($24,800.00) (herein Contract Sum), except as provided in Section 1.8. The method of compensation may include(i)a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or(iv)such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings as set forth in Exhibit C; Contractor shall not be entitled to any additional compensation for attending said meetings. Agreement with MuniFinancial August 21,2003 2.2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, in any month in which Contractor wishes to receive payment, no later than the tenth (10th) day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit"D", if any, and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty(180) days cumulatively. 3.3 Force Maieure. The time period(s)specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10)days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay,and extend the time for performing the services for the period of the enforced delaywhen and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement,this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1)year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Agreement with MuniFinancial August 21,2003 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise,without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent(25%)of the present ownership and/or control of Contractor,taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors,if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection,discharge,supervision or control of Contractor's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or,employees of City. City shall not in anyway or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of anyjoint enterprise with Contractor. Agreement with MuniFinancial August 21,2003 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain,at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name the City of Palm Springs as additional insured in accordance with standard ISO additional insured endorsement form CG2010 (1185) or equivalent language. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c) Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of $1,000,000 bodily and property damage. Said policy shall include coverage for owned, non- owned, leased and hired cars. (d)Additional Insurance. Additional limits and coverages, which may include professional liability insurance, will be specified in Exhibit"B". All of the above policies of insurance shall be primary insurance and issued by companies whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers,employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Contractor has provided the Citywith Certificates of Insurance, endorsements or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance, endorsements, or binders are approved by the City. The contractor agrees that the provisions of this Section 5.1 shall not be construed as limiting in anywaythe extent to which the Contractor may be held responsible forthe payment of damages to any persons or property resulting from the Contractor's activities or the activities of any person or person for which the Contractor is otherwise responsible. In the event the Contractor subcontracts any portion of the work in compliance with Section 4.3 of this Agreement the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them, and each of them, harmless from any and all actions, suits, claims, damages, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities") resulting from injuries to persons or damages to property that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work,operations or activities of Contractor, its agents,employees,subcontractors, Agreement with MuniFinancial August 21, 2003 or invitees, provided for herein, or arising from the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers,agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys'fees incurred in connection therewith that may be asserted or claimed by any person, firm, or entity to the extent caused by the of negligent activities of Contractor its agents or employees hereunder,excepting only liabilities due to the sole negligence orwillful misconduct of the CITY, its agents or employees; (b) Contractor will promptly pay anyjudgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred bythe City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 SufficiencVoflnsurerorSuret . Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best's Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City Manager due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement create an increased or decreased risk of loss to the City,the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10) days of receipt of notice from the City Manager. 6.0 REPORTS AND RECORDS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services,the cost of the project being designed,Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. Agreement with MuniFinancial August 21, 2003 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period. of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents, solely in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional.compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California,or any other appropriate court in such county. Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement,the injured party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten(10)days of service of such notice and completes the cure of such default within forty-five (45)days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate dangerto the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii)all amounts forwhich City may be liable Agreement with MuniFinancial August 21,2003 to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party,the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City maywithhold from any payment due,without liabilityfor interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies forthe same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time,with or without cause, upon ten(10)days written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at anytime,with or without cause, upon thirty(30)days written notice to City, except that where termination is due to the fault of the City,the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.8 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may,after compliance with the provisions of Section 7.2,take over the work and prosecute the same to completion by contract or otherwise,and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. Agreement with MuniFinancial August 21, 2003 7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in anyway connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, byand for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid,first-class mail, in the case of the City,to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263. In the case of the Contractor, it should be addressed to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two(72)hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration: Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Agreement with MuniFinancial August 21, 2003 parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii)by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv)the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. [SIGNATURE BLOCK ON NEXT PAGE] Agreement with MuniFinancial August 21, 2003 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above CITY OF PALM SPRINGS :TErsT. a municipal corporation q a BY Ci y er a -.�, Gity Mai is le APPROVED AS TO FORM: �� t Cify—Affckney CONTRACTOR: Check one:—Individual_Partnership 1/Corporation By: � � By: Yr1t1 C Signature (notariz(Td) / Signature //_�(notarized) Name: n e a . � /7 I Gnt Name: �{,( I WY/(Lc°4 w Title: / /`e.;d,,'t< leC Title: Vice 1 ✓e5l'c ent (This Agreement must be signed in the above space by This Agreement must be signed in the above space by one of the following:Chairman of the Board, President one of the following: Secretary, Chief Financial Officer or or any Vice President) any Assistant Treasurer) State of 60 ro "/'7/AD State of lI (/vjeW , ❑ Countyof VeP451 ❑ss Countyof WS ❑ss /J 'RYA-' //(� ( /� �. n iTV vst a9, �v3 Lbefore �y me, On before e, re �i ! �On'�'r h/!✓V�t+ v14/�G, nel personally appeared �(,t L U personally appeared C 7A MV1' personally known to me ( f personally known to me (ec_pceued-4e...ru rh basis--of Ito be the person(4whose name(4is/are-- sat sfficfoq,P)dr1P, )-to be the person(4whose name(4is/ere- subscribed to the within instrument and acknowledged to me that subscribed to the within instrument and acknowledged to me that he/staekheq executed the same in his/la;Aheir' authorized he/cho4hey executed the same in his/keW#} authorized capacity(iec), and that by his/Herkheir signature( on the capacity(ies), and that by his/Wn4 s P signature(e} on the instrument the person(s4,-or the entity upon behalf of which the instrument the person(&)-, or the entity upon behalf of which the person(ej acted,executed the instrument. person(e acte 1,executed the instrument. WITNESS my hand and official seal. WITNESS my hand and official seal. r MfQ Notary Signature: + nr Notary Signat re: Notary Seal: Notary Seal: lio «� ARLENE ROMANELLI rl ,Y ARLENE ROMANELLI Commisslon # 1389859 J Commission# 1389859 z ` Notary Public -California > ?q'� Los Angeles County z •• " Notary Public-California >_ My Comm.Expires Jan 10,2007 Los Angeles County �My Comm.Expires Jan 10,2007 MuniFinancial 27368 Via lndustria, Suite 110 Agreement with Munifinancial Temecula, CA 92590 August 21, 2003 EXHIBIT "A" SCOPE OF SERVICES Contractor proposes to conduct a Cost of Service Fee Study, as well as develop a Cost Allocation Plan for the City's building, engineering, planning and community/economic development departments. In performing this work, Contractor agrees to the following scope of services. . . Task 1: Project Management and Document Review The objective of this task is to gain an understanding of City financial considerations, operational processes and policy goals. For this task, the Contractor will schedule a kickoff meeting with City staff to determine goals and objectives for the fee study, City organizational structure, its policies and procedures for public service delivery, and its financial picture. Contractor will review all relevant documentation to further enhance our understanding of the issues. Contractor agrees to hold at least one (1) meeting with City staff during this task. Task 2: Data Collection For this task, Contractor will gather relevant cost of service data necessary to calculate appropriate and reasonable department fees. Contractor will gather and examine relevant plans, polices, budgets, and staffing records associated with agency services and programs. In addition, Contractor will interview City staff that directly and indirectly processes these services. This task may include staff members from other departments within the same agency who might spend time on another department's services, either directly or indirectly. Contractor will suggest an approach for data collection that employs staff interviews to gain an understanding of all necessary steps involved with the processing of each service. Once Contractor has achieved this understanding, Contractor may generate comprehensive surveys for the staff member to complete while completing each separate task. During the process, the staff member could make time-tracking notations on the provided form for each step of the process. Once these surveys are completed, Contractor will sit down with the staff member and her/his supervisor to verify and agree upon the responses. In addition, Contractor will gather existing and proposed fee schedules from comparable agencies to use in benchmarking the study agency's current and proposed fee schedules. Contractor will access and use their knowledge of other jurisdictions to gather cost data and provide recommendations based on this information, if appropriate. Contractor will conduct a working meeting with agency staff to review our progress. Contractor will hold a minimum of two (2) meetings with agency staff during this task. Agreement with MuniFinandal August 21, 2003 Task 3: Develop Fee Model This task involves the development of a fee model to calculate proposed agency or department fees based on data and information gathered in previous tasks. The model will be formatted to include appropriate costs and to ensure that agency policies are met through the imposition of the proposed fees. Key model inputs will include staff and material costs per unit, relevant budget data and appropriate overhead figures. Task 4: Calculate Proposed Fee Schedules For this task, Contractor will calculate the proposed fee schedules for discussion with agency staff. Based on the data collected and the fee model developed in previous tasks, Contractor will calculate each proposed department fee schedule. Each schedule provides for cost recovery up to the amount allowed by law and requested as a matter of agency policy. If deemed appropriate by the agency, Contractor will compare the proposed fee schedule with comparable agencies using the fee matrix proposed in the prior task. Contractor will conduct one (1) working meeting with agency staff to review progress. Task 5: Prepare User Fee Documentation This task is the culmination of the entire project. It is the most important task in that it provides the required fee documentation that meets the standards mandated by state law and determined by the Attorney General of the State of California. Contractor will prepare a first draft of a report that summarizes our findings and recommendations. Contractor will submit a draft report to the City for review. Based on staff comments and appropriate review by legal counsel, Contractor will prepare a final draft of their report for presentation to the City Council. Contractor agrees to present the study results to the City Council at a regularly scheduled meeting. Task 1: Kickoff Meeting The objective of this task is to gain an understanding of the desired results and determine the City's expectations for the project. For this task, Contractor will schedule a kickoff meeting with City staff to determine goals and objectives for the cost allocation study, City of Palm Springs organizational structure, its policies and procedures, and discuss timing issues. Contractor and City understand that the plan will only be developed for the following departments: Building and Safety, Planning, Engineering and Community/Economic Development. Task 2: Collect and Review Data and Documents For this task, Contractor will gather relevant cost and budget data. These items include, but are not limited to, operating and enterprise budgets, organizational charts, salary listing, benefit information, and direct billing schedules. Contractor will review all relevant cost data, budget documentation and other related documentation to further enhance our Agreement with MuniFinancial August 21,2003 understanding of the issues and work processes and begin to identify relevant allocation bases. Task 3: Conduct Department Interviews Contractor will conduct interviews and/or survey staff to gain an understanding of the process of each department's services. Contractor will meet with representatives from central services departments to determine functions and processes within each department. Contractor will determine the activities and tasks each staff member performs on a daily basis. Through these interviews and results from previous tasks, we will identify direct charge out employees and identify the bases for each function. Contractor will determine the reasonable relationships between each staff member and functions, and the allocation bases. Contractor will use the direct billing schedules to identify areas where employees are directly charged out to other departments so that we avoid "double dipping" in the allocation process. Task 4: Process Data and Prepare Draft Cost Plan Contractor will take the data gathered from previous tasks and results from our interviews to develop a draft cost plan that will allocate central services costs to the appropriate City operations. Contractor will run a series of logic checks and cross checks. Task 5: Review Results with Selected) Staff and Prepare Revised Cost Plan Contractor will conduct a meeting with appropriate City staff to review the results of the preliminary cost plan. Contractorwill collect and document comments and concerns. Should any revisions result from the meeting, Contractorwill incorporate them in the final cost plan. Task 6: Prepare Final Cost Plan Contractor will prepare and deliver to the City the final cost plan (eight bound copies and one unbound copy), incorporating any revisions. Task 7: Prepare OMB A-87 Certification Statement If relevant, Contractor will include a Certification Statement with the plan verifying that OMB Circular A-87 has been followed and that consistent methods have been used. This statement will also confirm that costs charged as direct costs of federally supported programs have not also been treated as indirect costs. If necessary, Contractorwill negotiate your plan with a federal cognizant agency or the State. Task 8: Prepare Comprehensive Overhead Rates Based on the final figures from the cost plan Contractor will construct a schedule of comprehensive overhead rates to ensure that the City is accurately accounting for the true cost of providing services. Task 9: Present Plans to City Staff If requested by City staff, we will present our allocation approach and findings to City Council. Agreement with MuniFinancial August 21,2003 CONTRACTORS QUALIFICATIONS MuniFinancial is one of the largest public-sector financial consulting firms in the United States with corporate headquarters in California and regional offices throughout the country. Since 1987 we have helped over 600 public agencies and nonprofit organizations successfully address a broad range of financial challenges. MuniFinancial assists local agencies with arbitrage rebate, investment consulting, municipal disclosure, and special district administration. The firm currently has a staff of 70 dedicated professionals with the range of expertise necessary to provide high-quality service to all our clients. Key Staff Contractor proposes to assign the following key staff in the performance of this project: Mr. Jewett is a Principal Consultant in the Financial Consulting Services group at MuniFinancial, and works from the firm's Temecula office. His background is in public administration for state and local government. He specializes in fiscal analysis and financial services to local agencies. He is our lead consultant for cost of service fee studies, utility rate analyses and Proposition 218 re-engineering projects. Mr. Jewett will lead the user fee analysis and will be your day-to-day contact. Mr. Wakefield has over 12 years of experience preparing user fee studies and cost allocation plans for numerous clients including the Cities of Modesto, Fresno, Anaheim, Galt, Redlands, and Del Mar. He is experienced in negotiating cost allocation plans for OMB compliance with several federal agencies, including HUD, HHS and DOL. Mr. Wakefield will lead the cost allocation plan project. Ms. Ellett is an Analyst within the Financial Consulting Services group. Her responsibilities are wide-ranging and include support of project managers, fiscal analysis via fee studies and the coordination and conduct of activities involved with the assessment balloting process. Client interaction also falls under her purview. Agreement with MuniFinancial August 21, 2003 EXHIBIT "B" SPECIAL. REQUIREMENTS 1. Section 5.1(a) is hereby modified to read as follows: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least $1,000,000 bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. If such insurance includes an aggregate limit, such limit shall be at least two times the per occurrence limit. The Commercial General Liability Policy shall name the City of Palm Springs as additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185)or equivalent language. 2. Except as expressly provided herein, all other terms and conditions of the Agreement shall remain in full force and effect Agreement with MuniFinancial August 21, 2003 EXHIBIT "C° SCHEDULE OF COMPENSATION Contractor agrees to perform all services described herein for a fixed not-to-exceed price of $24,800. This price includes all direct expenses required to complete the project Contractor agrees to work with City until its services culminate in a User Fee Study and Cost Allocation Plan as described in Exhibit "A". Contractor shall submit invoices to the City as work is completed. City shall pay Contractor pursuant to Section 2.2 of this Agreement. In no event shall Contractor's invoice amount exceed the maximum percentage allocation by task as set forth below: Cost of Service Fee Study Cost Allocation Plan Task 1 5% Task 1 5% Task 2 15% Task 2 15% Task 3 15% Task 3 5% Task 4 5% Task 4 10% Task 5 10% Tasks 5-7 10% Tasks 8-9 5% It is understood that if City requires services outside of the agreed upon scope of services, Contractor will invoice City at a hourly rate as set forth in Contractor's Schedule of Rates. Invoicing will occur on a monthly basis, as work is completed. 2003 Schedule of Rates }" e Division Manager $180 Principal Consultant 145 Senior Project Manager 125 Project Manager 105 Senior Analyst 85 Analyst 75 Analyst Assistant 65 Property Owner Services Rep 50 Support Staff 45 Agreement with MuniFinancial August 21, 2003 EXHIBIT °D" SCHEDULE OF PERFORMANCE Time is of the essence of this agreement. CONTRACTOR shall perform all services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein. Specifically, CONTRACTOR shall perform its Services so as to allow for the full and adequate completion of the Project within One Hundred and Twenty (120) days of receipt of a notice to proceed. If at any time it appears that the project cannot be completed by the date specified, CONTRACTOR shall notify CITY of that fact and provide an estimate of the time when the project will be completed. If CONTRACTOR has been the sole source of delay, and if completion of the project would be expedited by use of other or additional consulting services, CITY may use the retained amounts for the purpose and shall be relieved of paying such retention to CONTRACTOR. If the CONTRACTOR's work is not satisfactory, CITY has the right to take appropriate action, including but not limited to: (1) meeting with the CONTRACTOR to review the quality of the work and resolve matters of concern; (2) requiring the CONTRACTOR to perform the work at no additional fee until it is satisfactory; (3) suspending the delivery of further work to the CONTRACTOR for an indefinite time; (4) withholding payment; or(5) terminating the Agreement as set forth in Section 7.8. Project Schedule Commence Project: August 21, 2003 Draft Report Submitted to City for Review: November 17, 2003 Final Report Submitted to City: December 5, 2003 Agreement with MuniFinancial August 21,2003 Client#: 6540 A_ CORDTM CERTIFICATE OF LIABILITY INSURANCE 0DATE 8/5/(03 DDnv) PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey, Renton&Associates ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P. O. Box 10550 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Santa Ana,CA 92711-0550 714427-6810 INSURERS AFFORDING COVERAGE iesuaeo INSURER A. Hartford Fire Ins. Co. Muni Financial INSURER Travelers Indemnity Co. of Illinois 27368 Via Industria,Suite 110 INSURER c. National Fire Ins Co of Pittsburg, P Temecula, CA 92590 INSURER D. Lumbermens Mutual Casualty Co.* INSURER E. Security Ins. Co. of Hartford COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR I TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICYEXP[RATION LTR DATE MMIDDYY DATE(MMUDDNYI LIMITS A I GENERAL LIABILITY 57CESOA1661 11/09/02 11/09/03 EACH OCCURRENCE $1,000000 X ACTORS COM M ERCIAL GENERAL LIAR ILITY FIRE DAMAGE(Any one fire) $1000000 CLAIMS MADE �OCCUR INDP.CONTR MED EXP(Any one person) 1$10 000 X CONTRACTUAL INCLUDED. PERSONAL B ADV INJURY $1,000,000_ _ _X BFPD XCU I GENERAL AGGREGATE s2 000 000 GEN'L AGGREGATE LIM IT APPLIES PER PRODUCTS-COMPIOP AGG $2,000,000_ POLICY X I JEOT I X LOG ---------- - - - - B AUTOMOBILE LIABILITY Y810153D622802 11/09/02 111/09/03 COMBINED SINGLE LIMIT X IANY AUTO (En acc¢ledp $1,000,000 ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS � I, (Per person) X HIRED AUTOS BODILY INJURY $ X NON-OWNED AUTOS (Per adudenl) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHERTHAN EA ACC $_ AUTO ONLY: qGG $ C EXCESS LIABILITY BE7230408 11/09/02 11/09/03 EACH OCCURRENCE $2 000 000 OCCUR CLAIMS MADE AGGREGATE $21000 000 $ DEDUCTIBLE $ RETENTION S $ D WORKERS COMPENSATION AND 3BA07204100 111/09/02 �11/09/03 X WC STATU j oTH- TO NLvIIT3-.. .ER__ _ E1.1PLOVERS'LL4BILIP.' EL EACH ACCIDENT $1,000,090 EL DISEASE-EA EMPLOYEE $1,000,000 EX DISEASE-POLICYLIMIT $1,000,000 E OTHER Professional AEE0700906 111/09/02 11/09/03 $2,000,000 Per Claim Liability $2,000,000 Annl Aggr. DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESIEXCLUSIGNS ADDED BY ENDORSEMENTISPECIAL PROVISIONS General Liability policy claims excludes claims arising out of the performance of professional services.*The insurer's policy payment obligations are backed by a cut through to National Indemnity Company, an A++rated Berkshire Hathaway subsidiary. (See Attached Descriptions) CERTIFICATE HOLDER ADDITIONAL INSURED;INSURER LETTER' CANCELLATIONPremium SHOULD ANYOFTHEABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Palm Springs DATE THEREOF, THE ISSUING INSURER WILL XXk59Y"XW MAIL 30 DAYSWRITTEN Troy L. Butzlaff,Assistant City Mgr. NOTICE TOTHE CERTIFICATE HOLD ER NAM ED TOTES LEFT,BMT(ISetlX7RRN5Qxg.* tAIUX Office of the City Manager I4)H(>RRXWJCICCC7QFfa7/xiNtr3CN1(E[tlLN7CRR)KNXKiMRXEPYMRl7RYTX9(XCEP.XTHCM%XH7iX>1RX x 3200 Tahquitz Canyon Way 7RKW)MI[WR VISix Palm Springs, CA 92262 AUTHORIZED REPRESENTATIVE ACORD 25-S(7197)1 of 2 #M81226 � �� —'I2LL © ACORD CORPORATION 1988 DESCRIPTIONS (Continued from Page 1) Re: User Fee Study and Cost Allocation Plan City of Palm Springs is additional insured as respects to General Liability. AMS 25.3(07197)2 of 2 #M81226 POLICY NUMBER: 57CESOA1661 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES or CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: City of Palm Springs Troy L. Butzlaff, Assistant City Mgr. Office of the City Manager 3200 Tahquitz Canyon Way Palm Springs, CA 92262 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of"your work"for that insured by or for you. CG 20 10 11 85