Document elcerrito_gov_doc_8ddec001f9

AGENDA BILL Agenda Item No. 5(E) Date: February 6, 2012 To: El Cerrito City Council From: Lori Trevifio, Redevelopment Manager Subject: Consulting Contract with the El Cerrito Municipal Services Corporation ACTION REQUESTED Adopt a resolution authorizing the City Manager to enter into a contract with the El Cerrito Municipal Services Corporation to provide staffing and administrative services. BACKGROUND The El Cerrito Municipal Services Corporation ("MSC") is a nonprofit public benefit corporation established in 1982 for the benefit of the residents of El Cerrito, but which had been inactive in the last several years prior to resuming activity in March 2011. At that time, the City of El Cerrito ("City") supported the MSC through the use of staffing, consulting and other City resources. In its FY2011/12 budget, the MSC included appropriations for such services and has now requested that the City formalize the relationship through a contract for project and program staffing, and for administrative support. Additionally, on February 1, 2012, the City assumed in its General Fund the cost of staff and related expenses previously paid for with El Cerrito Redevelopment Agency funds. Entering into a contract with the MSC to provide support services would provide the City with revenue not only to cover its administrative costs to support the MSC resuming activities, but also these newly assumed staff and related costs. CONTRACT TERMS Attachment 2 to this report is the proposed contract to provide services to the MSC. The projects and programs being implemented are listed in the Scope of Work, which is included as Exhibit A to the contract. The following budget to provide services is proposed to be covered by the contract with the MSC for FY2011/12: Initial set-up and administrative costs Program and project staffing Incidentals and reimbursable expenses Total $498,000 $130,000 $25,000 $653,000 The City would invoice the MSC upon execution of the contract for initial set-up expenses of $498,000 incurred during the current fiscal year. For the last five months of the fiscal year, the City would provide a invoice for project and program staffing and related expenses for an amount not to exceed $31,000 per month. ---PAGE BREAK--- Agenda Item No. S(E) FINANCIAL CONSIDERATIONS A budget amendment is necessary to appropriate $155,000 in new program revenue to the City. A budget amendment is also necessary to cover the staffing and related expenses being assumed by the City, which will be included in the midyear budget review at the February 21, 2012 City Council meeting. LEGAL CONSIDERATIONS This report and the attached contract form have been reviewed by the City Attorney. Staff is requesting authority to execute the contract in substantially the form presented. Non-substantial changes may be made in consultation with the City Attorney. Reviewed by: Scott Hanin City Manager Attachments: 1. Resolution authorizing the City Manager to enter into a contract to provide staffing and administrative services to the El Cerrito Municipal Services Corporation in an amount not to exceed $653,000. 2. Proposed Consulting Services Agreement with the El Cerrito Municipal Services Corporation. Page 2 ---PAGE BREAK--- RESOLUTION 2012-XX Agenda Item No. S(E) Attachment 1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT TO PROVIDE STAFFING AND ADMINISTRATIVE SERVICES TO THE EL CERRITO MUNICIPAL SERVICES CORPORATION IN AN AMOUNT NOT TO EXCEED $653,000 WHEREAS, the El Cerrito Municipal Services Corporation ("MSC") is a nonprofit public benefit corporation established in 1982 for the benefit of the residents of El Cerrito; and WHEREAS, after several years of inactivity by the MSC, the City of El Cerrito ("City") supported the MSC's resumption of activity in March 2011, through the use of staffing, consulting and other City resources; and WHEREAS, the MSC has now requested that the City formalize the relationship through a contract for project and program staffing, and for administrative support; and WHEREAS, the City assumed in its General Fund the cost of staff and related expenses previously paid for with El Cerrito Redevelopment Agency funds; and WHEREAS, entering into a contract with the MSC to provide support services would provide the City with revenue not only to cover its administrative costs to support the MSC resuming activities, but also these newly assumed staff and related costs; and WHEREAS, a budget amendment is necessary to appropriate $155,000 in new program revenue to the City; and WHEREAS, the City Council will consider a budget amendment at its next meeting to cover the staffing and related expenses being assumed by the City, related to this agreement. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of El Cerrito finds that the above recitals are true and correct. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to enter into a contract to provide staffing and administrative services to the El Cerrito Municipal Services Corporation in an amount not to exceed $653,000. BE IT FURTHER RESOLVED that the City Council amends the City's Fiscal Year 2011-12 Budget to increase its program revenue by $155,000. BE IT FURTHER RESOLVED that this Resolution shall become effective immediately upon its adoption. ---PAGE BREAK--- Agenda Item No. S(E) Attachment 1 I CERTIFY that at a regular meeting on February 6, 2012 the City Council of the City of El Cerrito passed this Resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: IN WITNESS of this action, I sign this document and affix the corporate seal of the City ofEl Cerrito on February XX, 2012. Cheryl Morse, City Clerk APPROVED: William Jones III, Mayor ---PAGE BREAK--- Agenda Item No. S(E) Attachment 2 CONSULTING SERVICES AGREEMENT BETWEEN THEEL CERRITO MUNICIPAL SERVICES CORPORATION AND THE CITY OF EL CERRITO THIS AGREEMENT for consulting services is made by and between the El Cerrito Municipal Services Corporation (the "MSC") and the City of El Cerrito (the "City") (together referred to as the "Parties") as of February_, 2012 (the "Effective Date"). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, the City shall provide to the MSC the services described in the Scope of Work attached as Exhibit A, and incorporated herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2012, the date of completion specified in Exhibit A, and the City shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to the City to complete the services required by this Agreement shall not affect the MSC's right to terminate the Agreement, as referenced in Section 8. 1.2 Standard of Performance. The City shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which the City is engaged. 1.3 Assignment of Personnel. The City shall assign only competent personnel to perform services pursuant to this Agreement. 1.4 Time. The City shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy the City's obligations hereunder. 1.5 Public Works Requirements. Should any the services described in Exhibit A include or be amended to include "work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work," the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, the City is required to comply with the provisions of the Labor Code applicable to public works. The City shall waive, indemnify, hold harmless, and defend the MSC concerning any liability arising out of Labor Code Section 1720 et seq. Section 2. COMPENSATION. The MSC hereby agrees to pay the City a sum not to exceed $653,000 under this Agreement. The MSC shall pay the City for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from the MSC to the City for services rendered pursuant to this Agreement. The City shall submit all invoices to the MSC in the manner specified herein. Except as specifically authorized by the MSC in writing, the City shall not bill the MSC for duplicate services performed by more than one person. Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito February_, 2012 Page 1 of 7 ---PAGE BREAK--- Agenda Item No. S(E) Attachment 2 The City and the MSC acknowledge and agree that compensation paid by the MSC to the City under this Agreement is based upon the City's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of the City, and previously completed cost allocation studies. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which the City and its employees, agents, and subcontractors may be eligible. The MSC therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. The City shall submit an initial invoice (the "Initial Invoice") for set-up and administrative costs borne by the City in an amount of $498,000. Subsequently, the City shall submit invoices for an amount not to exceed $31,000, based on the cost for services performed prior to the invoice date. Invoices shall contain the following information: • The beginning and ending dates of the billing period; • The total number of hours and brief summary of work performed under the Agreement by the City and each employee, agent, and subcontractor of the City performing services hereunder; • A billing summary containing the original contract amount, the amount of prior billings, the total due the period, and the balance available under the Agreement. 2.2 Payment. The MSC shall make payments, based on invoices received, for services satisfactorily performed. The MSC shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay the City. 2.3 Total Payment. The MSC shall pay for the services to be rendered by the City pursuant to this Agreement. The MSC shall not pay any additional sum for any expense or cost whatsoever incurred by the City in rendering services pursuant to this Agreement. The MSC shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall the City submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.4 Payment of Taxes. The City is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.5 Payment upon Termination. In the event that the MSC or the City terminates this Agreement pursuant to Section 8, the MSC shall compensate the City for all outstanding costs incurred for work satisfactorily completed as of the date of written notice of termination. The City shall maintain adequate records to verify costs incurred to that date and subsequent to the Initial Invoice. Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito February 2012 Page 2 of 7 ---PAGE BREAK--- Agenda Item No. 5(E) Attachment 2 2.6 Authorization to Perform Services. The City is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, the City shall, at its sole cost and expense, provide facilities and equipment that may be necessary for the City and its agents, representatives, employees, and subcontractors to perform the services required by this Agreement. Section 4. INSURANCE REQUIREMENTS. At all times when performing work under this Agreement, the City shall maintain adequate insurance or a plan of self-insurance. MSC acknowledges that the City is a member of and receives risk coverage through Municipal Pooling Authority as described below, and that the coverage is sufficient. The MSC, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the City; or automobiles owned, leased, hired, or borrowed by the City. Section 5. INDEMNIFICATION AND CITY'S RESPONSIBILITIES. The City shall indemnify, defend, and hold the MSC, its officers, agents, and employees, harmless against all claims, demands, damages, losses, costs, expenses, including without limitation, attorneys' fees and costs of litigation, or liabilities made against them which arise out of, or in connection with, the work done pursuant to this Agreement; provided, however, that this indemnity shall not extend to any claim arising solely from the MSC's negligence or the MSC's negligent failure to perform its obligations under this Agreement. Section 6. STATUS OF CITY. 6.1 Independent Contractor. At all times during the term of this Agreement, the City shall be an independent contractor and shall not be an employee of the MSC. The MSC shall have the right to control the City only insofar as the results of the City's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise the MSC shall not have the right to control the means by which the City accomplishes services rendered pursuant to this Agreement. 6.2 The City Not an Agent. Except as the MSC may specify in writing, the City shall have no authority, express or implied, to act on behalf of the MSC in any capacity whatsoever as an agent. The City shall have no authority, express or implied, pursuant to this Agreement to bind the MSC to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. The City and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito February 2012 Page 3 of 7 ---PAGE BREAK--- Agenda Item No. S(E) Attachment 2 7.3 Licenses and Permits. The City represents and warrants to the MSC that the City and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. The City represents and warrants to the MSC that the City and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, the City and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.4 Nondiscrimination and Equal Opportunity. the City shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by the City under this Agreement. The City shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of the City thereby. The City shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. The MSC may cancel this Agreement at any time and without cause upon written notification to the City. The City may cancel this Agreement upon 90 days' written notice to the MSC and shall include in such notice the reasons for cancellation. In the event of termination, the City shall be entitled to compensation for services performed to the effective date of termination; the MSC, however, may condition payment of such compensation upon the City delivering to the MSC any or all documents, photographs, computer software, video and audio tapes, and other materials provided to the City or prepared by or for the City or the MSC in connection with this Agreement. 8.2 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.3 Assignment and Subcontracting. The MSC and the City recognize and agree that this Agreement contemplates personal performance by the City's employees, agents, representatives, and subcontractors and is based upon a determination of their personal competence, experience, and knowledge. The City may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. The City shall not subcontract any portion of the performance contemplated and provided for herein, without prior written approval of the Contract Administrator. Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito February 2012 Page 4 of 7 ---PAGE BREAK--- Agenda Item No. S(E) Attachment 2 8.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between the MSC and the City shall survive the termination of this Agreement. 8.5 Options upon Breach by the City. If the City materially breaches any of the terms of this Agreement, the MSC's remedies shall included, but not be limited to, the following: 8.5.1 Immediately terminate the Agreement; 8.5.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by the City pursuant to this Agreement; 8.5.3 Retain a different consultant to complete the work described in Exhibit A not finished by the City; or 8.5.4 Charge the City the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that the MSC would have paid the City pursuant to Section 2 if the City had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of the City's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that the City prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the MSC. The City hereby agrees to deliver those documents to the MSC upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the MSC and are not necessarily suitable for any future or other use. The MSC and the City agree that, until final approval by the MSC, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 9.2 The City's Books and Records. the City shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the MSC under this Agreement for a minimum of three years, or for any longer period required by law, from the date of final payment to the City to this Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito February 2012 Page 5 of 7 ---PAGE BREAK--- Agenda Item No. 5(E) Attachment 2 reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Contra Costa or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. The City shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Contract Administration. This Agreement shall be administered by a Contract Administrator to be identified by the Corporation. All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.8 Notices. Any written notice to the City shall be sent to: Attn: Contract Administrator El Cerrito Municipal Services Corporation 10890 San Pablo Avenue El Cerrito, CA 94530 Any written notice to the MSC shall be sent to: Attn: City Manager City of El Cerrito 10890 San Pablo Avenue El Cerrito, CA 94530 10.9 Integration. This Agreement, including the scope of work and budget attached hereto and incorporated herein as Exhibit A represents the entire and integrated agreement between the MSC and the City and supersedes all prior negotiations, representations, or agreements, either written or oral. Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito February_, 2012 Page 6 of 7 ---PAGE BREAK--- Agenda Item No. S(E) Attachment 2 10.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. The Parties have executed this Agreement as of the Effective Date. EL CERRITO MUNICIPAL SERVICES CORP. William C. Jones Ill Corporation Board Chairperson Attest: Cheryl Morse Corporation Secretary Approved as to Form: Karen Tiedemann Corporation Legal Counsel Sky Woodruff City Attorney Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito CITY OF EL CERRITO Scott Han in City Manager February_, 2012 Page 7 of 7 ---PAGE BREAK--- EXHIBIT A SCOPE OF WORK AND BUDGET The City shall provide staffing services in support of the MSC's projects and programs, including: 1. Continued development and implementation of the Del Norte Transit Oriented Development Strategy, focusing on development opportunities on Corporation-owned properties 2. Implementation the Commercial Rehabilitation Loan Program with priority given to the southern end of San Pablo Avenue around the Cerrito Theater and El Cerrito Plaza Shopping Center 3. Continued work with key property owners on San Pablo Avenue on potential development, redevelopment or other improvements to their properties 4. Collaboration with City Planning staff on completion and adoption of the City's San Pablo Avenue Specific Plan, in particular as it relates determining the feasibility of development standards under consideration, producing clear and consistent development and design standards with the City of Richmond, and facilitating economic development opportunities and transit oriented development projects 5. Initiation of predevelopment activities on Corporation-owned properties to implement the City's San Pablo Avenue Specific Plan 6. Collaboration with City Planning, Environmental Services, and Engineering staff on parking standards and programs, in particular how they relate to transit oriented development feasibility, revitalization, and sustainability efforts 7. Coordination with Pleasantown Motion Picture Company on completion of tenant improvements to the Cerrito Theater as provided in the Cerrito Theater Lease Agreement 8. Continued development and implementation of business marketing programs, including updating brochures and website content to support local businesses 9. Continued implementation of the City's business attraction and retention programs to provide shopping and dining opportunities for residents and visitors, and to bolster economic development efforts and City revenues The City shall handle all of the Corporation's administrative functions, as it resumes its activities, and serve as its fiscal agent. The budget for providing these services is as follows: Initial set-up and administrative costs Program and project staffing Incidentals and reimbursable expenses (19% of staffing) Total Exhibit A to Consulting Services Agreement between the El Cerrito Municipal Services Corporation and the City of El Cerrito $498,000 $130,000 $25,000 $653,000 February_, 2012 Page 1 of 1