Document elcerrito_gov_doc_c9dfb6e526

El Cerrito Municipal Services Corporation Date: To: From: Subject: February 6, 2012 El Cerrito Municipal Services Corporation Board Lori Trevino, Redevelopment Manager Staffing services contract ACTION REQUESTED Agenda Report Item No.4(D) Adopt a resolution authorizing the Executive Director to enter into a contract with the City ofEl Cerrito for staffing and administrative services. BACKGROUND On February 22, 2011, the City of El Cerrito ("City") and the El Cerrito Redevelopment Agency ("Agency") entered into the Amended and Restated Public Improvements and Cooperation Agreement for the City of El Cerrito Redevelopment Project Area ("Cooperation Agreement"). The Cooperation Agreement's purpose is implementation of projects and programs that meet the goals and objectives in the 1993 Amended and Restated City of El Cerrito Redevelopment Plan for revitalization of the Project Area, and further outlined in the Agency's 2002-2012 Five-Year Implementation Plan. On March 7, 2011, the Corporation entered into an assignment agreement with the City, with the consent of the Agency, accepting the City's rights and responsibilities under portions of the Cooperation Agreement. Through the Assigned Cooperation Agreement, the Corporation is responsible for implementing the economic development and redevelopment projects and programs described in the Cooperation Agreement's Improvement Plan and Program (the "Plan"). The Cooperation and Assigned Cooperation Agreements require the Agency to fund the Corporation with all of the: 1) Agency funds held and not previously budgeted, appropriated, or restricted for use on affordable housing; 2) Net proceeds of Agency indebtedness designated for payment under the Agreement; 3) Future tax increment revenue pursuant to the Redevelopment Plan; and 4) Lease revenue proceeds, interest payment, reserve funds, loan repayments and other sources of funds available to the Agency or its successor after making necessary payments on obligations of the Agency that existed at the time the Agreement was executed. The obligation of the Agency to pay the Corporation the available funds for implementation of the Plan is considered Agency indebtedness and a pledge of tax increment from the Project Area to repay indebtedness, as defined in the State Constitution, the Redevelopment Law, and the City's Redevelopment Plan. The payment procedure is that the Agency is to pay the Corporation the available funds described above within ten days of demand by the Corporation for its anticipated incurrence of costs for implementing the Plan. Upon assignment of the Cooperation Agreement in March, the Agency advanced the Corporation all available funds. ---PAGE BREAK--- Agenda Item No. On May 2, 2011, the Board adopted a budget for FY20 11112, which is Attachment 2 to this report. It was based on the Corporation's anticipated revenues and expenses for implementation of the Plan it had elected to undertake, as well as revenue and expenses from operation and maintenance of the Corporation's real property. Having been advanced Agency funds in March, the Corporation started the current fiscal year with sufficient funds available to undertake its activities until additional funding became available for the Agency. Based on the Corporation's FY2011/12 Budget, a demand for funds was submitted to the Agency. Funds became available to the Agency in December 2011 and were disbursed to the Corporation in January 2012. CONSULTING CONTRACT Using the available resources, the Corporation has engaged consultants as needed for projects and programs during the fiscal year, but now requires a more formalized staffing contract. According to the bylaws, contracts exceeding $25,000 must be authorized by the Board. Authority is being sought for a contract with the City of El Cerrito for staffing and administrative services, in an amount not to exceed $653,000, substantially in the form of Attachment 3. The budget covered by the contract is as follows: Initial set-up and administrative costs Program and project staffing Incidentals and reimbursable expenses (19o/o of staffing) Total $498,000 $130,000 $25,000 $653,000 The City would invoice the Corporation 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 staffing and related expenses for an amount not to exceed $31,000 per month. The Corporation's appropriations for FY2011/12 are sufficient to cover the cost of this contract and no budget amendment is needed at this time. LEGAL CONSIDERATIONS The actions being considered are consistent with California Corporations Law, the Corporation's public and charitable purposes, its Amended and Restated Bylaws, and the Board's previous actions. Page 2 ---PAGE BREAK--- Reviewed by: Attachments: 1. Resolution 2012-03, authorizing the Executive Director to enter into contract with the City of El Cerrito for staffing and administrative services in an amount not to exceed $653,000 2. Corporation's FY2011/12 Adopted Budget, including Exhibit A, Improvement Plan and Program 3. Form of contract with the City ofEl Cerrito Page 3 Agenda Item No. ---PAGE BREAK--- Agenda Item No. 4(D) Attachment 1 MUNICIPAL SERVICES CORPORATION RESOLUTION NO. RESOLUTION OF THE BOARD OF DIRECTORS OF THEEL CERRITO MUNICIPAL SERVICES CORPORATION AUTHORIZING THE EXECUTIVE DIRECTOR TO ENTER INTO A CONTRACT WITH THE CITY OF EL CERRITO FOR STAFFING AND ADMINISTRATIVE SERVICES WHEREAS, the Corporation is a nonprofit public benefit corporation organized under the California Nonprofit Public Benefit Corporation Law for charitable purposes; and WHEREAS, the specific charitable and public· purposes for which the Corporation is organized are to benefit and support the City of El Cerrito (the "City") and the El Cerrito Redevelopment Agency (the "Agency"), in accordance with Section 509(a)(3) of the Internal Revenue Code of 1986, as amended, and to lessen the burdens of government of the City and the Agency; and WHEREAS, the Agency has committed to funding implementation of redevelopment and economic development projects and programs by the Corporation on the Agency's behalf, pursuant to the Amended and Restated Public Improvements and Cooperation Agreement for the City of El Cerrito Redevelopment Project Area between the City of El Cerrito and the El Cerrito Redevelopment Agency ("Cooperation Agreement"), which the City subsequently assigned in part to the Corporation, with the Agency's consent; and WHEREAS, the Board adopted its FY20 11/12 budget on May 2, 2011, which represented the anticipated revenues and proposed expenditures for the Corporation; and WHEREAS, following receipt of tax increment revenues pledged to fund the Corporation's implementation of the Cooperation Agreement, the Agency disbursed the pledged funds to the Corporation for the current fiscal year; and WHEREAS, the Board wishes to authorize a contract for consulting services for its program and project implementation, and for administration of the Corporation; and WHEREAS, pursuant to the Corporation's Amended and Restated Bylaws, all contracts entered into on behalf of this Corporation where the contract exceeds Twenty Five Thousand Dollars must be authorized by the Board; and NOW THEREFORE, BE IT RESOLVED by the the Board of the Municipal Services Corporation that it hereby finds that the above recitals are true and correct. BE IT FURTHER RESOLVED, that the Board does hereby authorize the Executive Director to enter into a contract with the City of El Cerrito for staffing and administrative services, in an amount not to exceed $653,000 for the remainder ofFY2011/12. BE IT FURTHER RESOLVED, that this Resolution shall become effective immediately upon its adoption. * * * * * ---PAGE BREAK--- Agenda Item No. 4(D) Attachment 1 I CERTIFY that at a regular meeting on February 6, 2012, the Board of Directors of the El Cerrito Municipal Services Corporation passed this Resolution by the following vote: AYES: BOARD MEMBERS: NOES: BOARD MEMBERS: ABSENT: BOARD MEMBERS: IN WITNESS of this action, I sign this document on February_, 2012. Cheryl Morse, Secretary APPROVED: William C. Jones III, Board Chairperson ---PAGE BREAK--- Agenda Item No. 4(D) Attachment 2 EL CERRITO MUNICIPAL SERVICES CORPORATION FISCAL YEAR 2011-12 ADOPTED BUDGET FOR THE FISCAL YEAR ENDING JUNE 30, 2012 Board of Directors Ann Cheng, Chairperson William C. Jones Ill, Vice Chairperson Janet Abelson, City Board Member Rebecca Benassini, Board Member Scott Hanin, Executive Director Greg Lyman, Board Member Karen Pinkos, Board Member Officers Mary Dodge, Chief Financial Officer Cheryl Morse, Secretary Adopted May 2, 2011 ---PAGE BREAK--- The El Cerrito Municipal Services Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Nonprofit Public Benefit Corporation Law for charitable purposes. The general purpose of this Corporation is to have and exercise all rights and powers conferred on nonprofit corporations under the laws of California~ provided that this Corporation shall not~ except to an insubstantial degree~ engage in any activities or exercise any powers that are not in furtherance of the primary purposes of this Corporation. ---PAGE BREAK--- INTRODUCTION FISCAL YEAR 2011-12 BUDGET EL CERRITO MUNICIPAL SERVICES CORPORATION To serve its purpose of benefiting and supporting the City of El Cerrito and the El Cerrito Redevelopment Agency and lessening the burden of government~ the mission of the El Cerrito Municipal Services Corporation is to pursue projects and programs that create~ support~ and retain a strong and diverse economic base; provide housing and employment opportunities; increase sales and property tax revenue; and provide desired goods and services to the community throughout the City and the Redevelopment Project Area. This document presents the Fiscal Year 2011-12 Budget for the El Cerrito Municipal Services Corporation ("Corporation''). The Corporation is responsible for economic development and redevelopment projects and programs on behalf of the City of El Cerrito ("City") and the El Cerrito Redevelopment Agency ("Agency"). In particular, the Corporation's activities implement the Agency's goals and objectives within the City of El Cerrito Redevelopment Project Area ("Project Area") as described in the Agency's Redevelopment Plan ("Redevelopment Plan") and Five-Year Implementation Plan. The Corporation is a California nonprofit public benefit corporation. Per the Articles of Incorporation of the Corporation, the specific charitable and public purposes for which the Corporation is organized are to benefit and support the City and the Agency, in accordance with Section 509(a)(3) of the Internal Revenue Code of 1986, as amended, and to lessen the burdens of government of the City and the Agency by: utilizing private and public funding sources to combat community blight and deterioration in the City and contribute to the physical improvement of the City; providing and expanding economic opportunities for low and moderate income households in the City; encouraging and stimulating economic development within the City by assisting the Agency to eliminate blight within the Agency's project areas; and implementing and assisting the Agency in redevelopment activities and programs that will lessen neighborhood tensions, and combat community deterioration. 1 ---PAGE BREAK--- Recent efforts to eliminate redevelopment agencies in California have created uncertainty for the Agency's ability to use redevelopment tools in pursuit of its goals and objectives. The Agency has undertaken various efforts to protect its revenues, assets, projects and programs. These included the adoption of a Public Improvements and Cooperation Agreement for the City of El Cerrito Redevelopment Project Area ("Cooperation Agreement") between the City and the Agency for completion of the Agency's projects and programs. Subsequently, the City partially assigned its rights and responsibilities under the Cooperation Agreement, as they related to non affordable housing projects and programs, to the Corporation. The Agency also conveyed all real property held for non affordable housing projects to the Corporation for redevelopment purposes. PROJECTS AND PROGRAMS Fiscal Year 2010-11 was the first year in which the Corporation operated under the Cooperation Agreement and carried out projects and programs on behalf of the Agency. The Agency provided initial funding to the Corporation of $1.35 million to assume Agency projects and programs as of March, 2011. Of particular note, in FY2010-11, the Corporation allocated $100,000 to establish a Commercial Rehabilitation Loan Program for businesses within the City of El Cerrito Redevelopment Project Area, any remainder of which will carry over into FY2011-12 for continued funding of the program. Such funds are therefore reflected in appropriations for FY2011-12. Previously approved funding that will also carry forward into FY2011-12 also includes $141,000 remaining for tenant improvements for the Cerrito Theater. In the near term, the Agency's goal is concentrating resources and efforts to encourage private investment on key catalyst sites along the San Pablo Avenue commercial corridor. While the revenues available to the Corporation to carry out Agency projects are a constraint, the focus of the Corporation's projects and programs in the current fiscal year will be to: • Continue development and implementation of the Del Norte Transit Oriented Development Strategy, focusing on development opportunities on Corporation- owned properties • Continue the Master Developer Solicitation process for the Moeser Lane Shopping Center on behalf of the Agency, in order to facilitate revitalization of the center • Implement 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 • Continue to work with key property owners on San Pablo Avenue on potential development, redevelopment or other improvements to their properties 2 ---PAGE BREAK--- • Collaborate 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 • Initiate predevelopment activities ori Corporation-owned properties to implement the City's San Pablo Avenue Specific Plan • Collaborate with City Planning, Environmental Services, and Engineering staffon parking standards and programs, in particular how they relate to transit oriented development feasibility, revitalization, and sustainability efforts • Coordinate with Pleasantown Motion Picture Company on completion of tenant improvements to the Cerrito Theater as provided in the Cerrito Theater Lease Agreement • Continue to develop and implement business marketing programs, including updating brochures and website content to support local businesses • Continue 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 BUDGET OVERVIEW Through the Cooperation Agreement, the Corporation will undertake activities related to facilitating private investment, attracting and retaining businesses, and implementing related public improvement projects. The complete list of projects and programs (excluding the affordable housing program) that the Corporation has agreed to undertake on behalf of the Agency over the life of the Redevelopment Plan is contained in the Cooperation Agreement and is included in this budget document as Appendix A. The Agency has agreed to provide the Corporation with the funds necessary for such activities and projects from the Agency's available resources, including tax increment funds allocated to the Agency. The Corporation shall use the Agency Funds for the completion of the projects. Among other activities, the Corporation may use the Agency funds to pay costs of land acquisition, relocation, demolition, site preparation and remediation, design, and construction of the projects, and reasonable staff, consultant and other administrative costs in connection therewith. The Corporation pays the City, as the Corporation's fiscal agent, for handling all of its administrative functions through an administrative services contract. The FY2011-12 Corporation budget consists primarily of two components: programs and projects; and the Corporation's administrative budget and City services administrative cost. The budget has funding sources derived from tax increment, developer proceeds, lease income, interest income and other income. For a discussion of tax increment revenue projections, please refer to the Redevelopment Agency section of the City's 3 ---PAGE BREAK--- FY2011-12 Budget. The Corporation budget consists of a revenue budget of $1,180,340 and an expense budget of $1,129,340 for FY2011-12. The Corporation's revenues and expenses for FY2011-12 are as follows: Revenue El Cerrito Municipal Services Corporation Fiscal Year 2011-12 Budget Revenue & Expenditures Payments from El Cerrito Redevelopment Agency Interest, Lease, Note, Other Revenue Developer Proceeds/Advances Total Revenue Expenditures Redevelopment Projects & Programs Economic Development Program City/RDA Services/Administration Total Expenditures FY 2012 $ 1,129,340 $ 51,000 $1,180,340 $ 467,000 $ 70,000 $ 592,340 $1,129,340 4 ---PAGE BREAK--- APPENDIX A Exhibit A to the Cooperation Agreement: List of Projects and Schedule of Performance and Payment Map of City of El Cerrito Redevelopment Project Area 5 ---PAGE BREAK--- Exhibit A El Cerrito Redevelopment Project Area List of Projects and Schedule of Performance and Payment Assigned to the El Cerrito Municipal Services Corporation Cost Estimates in Millions Timeframe for Project Soft Admin Total Performance Timeframe Projects and Programs Costs Costs Costs Cost (FY ending) for Payment Facilitation of Private Investment* Specific Plan Completion and Implementation 0.00 0.50 0.08 0.58 2012-2021 2012-2026 Del Norte Transit-Oriented Development Transit/Public Infrastructure 13.00 4.00 1.10 18.10 2012-2021 2012-2026 Knott Triangle 0.87 0.13 0.13 1.13 2012-2016 2012-2016 Mayfair Block 0.10 0.10 0.13 0.33 2012-2016 2012-2016 BART Parking Lots 0.44 0.07 0.07 0.57 2012-2016 2012-2016 Hill Street Parcel 0.10 0.10 0.13 0.33 2012-2016 2012-2016 Eastshore Triangle 1.31 0.20 0.20 1.70 2012-2016 2012-2016 North Gateway 0.44 0.07 0.07 0.57 2014-2018 2014-2018 Mitsubishi Block 0.65 0.10 0.10 0.85 2012-2016 2012-2016 Wall Streeet North 0.22 0.03 0.03 0.28 2017-2021 2017-2021 Wall Street South 0.22 0.03 0.03 0.28 2017-2021 2017-2021 South Blake 0.33 0.05 0.05 0.42 2017-2021 2017-2021 South Potrero 0.44 0.07 0.07 0.57 2017-2021 2017-2021 Madison Blocks 0.74 0.11 0.11 0.96 2017-2021 2017-2021 San Pablo/Alameda Midtown Site 0.44 0.07 0.07 0.57 2012-2016 2012-2016 Civic Center Parcel 0.10 0.10 0.10 0.30 2012-2016 2012-2016 DMVBiock 0.87 0.13 0.13 1.13 2017-2021 2017-2021 Marshall's Center 0.87 0.13 0.13 1.13 2017-2021 2017-2021 Moeser Lane Shopping Center 0.44 0.07 0.07 0.57 2012-2014 2012-2014 Bank of America Block 0.44 0.07 0.07 0.57 2017-2021 2017-2021 South Stockton 0.44 0.07 0.07 0.57 2017-2021 2017-2021 South Eureka 0.22 0.03 0.03 0.28 2014-2018 2014-2018 Avila Site 0.26 0.04 0.04 0.34 2012-2016 2012-2016 Theater Block 0.87 0.13 0.13 1.13 2012-2016 2012-2016 Plaza BART Lots 0.87 0.13 0.13 1.13 2017-2021 2017-2021 Fairmount Auto Lots 0.44 0.07 0.07 0.57 2014-2018 2014-2018 Plaza Connection Fairmount/San Pablo 0.65 0.10 0.10 0.85 2014-2018 2014-2018 South Gateway 0.44 0.07 0.07 0.57 2017-2021 2017-2021 Cerrito Theater Property 1.00 0.15 0.15 1.30 2012-2021 2012-2026 Subtotal 27.17 6.38 3.54 37.09 Soft costs are those costs associated with the actual design and construction of a project, including: preparation of engineering/architectural plan and specifications, design development and review, coordination of bidding processes, construction inspections, construction management and those other costs necessary to implement the design and construction of a public improvement. Administrative Costs are those costs for services associated with the development of a public improvement or program, including: the purchase of land; negotiation and development of agreements; public outreach processes; approval and permitting processes; financial, legal and other specialized consulting services; financial compliance and other governmental reporting, including financial administrative oversight; the administration of housing projects including monitoring of affordable housing agreements and prevailing wage requirements, resale restrictions, or other covenants associated with affordable housing projects; the drafting of funding availability notices and development of affordable housing agreement documents; and additional indirect City costs associated with the administrative support needed to carry out these public improvements and programs. *May include land acquisition and/or assembly, site preparation, disposition and development of Agency properties, project specific infrastructure, Specific Plan implementation) ---PAGE BREAK--- Exhibit A El Cerrito Redevelopment Project Area List of Projects and Schedule of Performance and Payment Assigned to the El Cerrito Municipal Services Corporation Cost Estimates in Millions Project Soft Admin Total Projects and Programs Costs Costs Costs Cost Business Recruitment and Retention Business Attraction, Retention and Expansion 0.72 0.00 0.34 1.06 Community Promotion and Events 0.20 0.00 0.10 0.30 Commercial Building Rehabilitation Assistance 1.20 0.00 0.57 1.77 Graffiti Abatement 0.40 0.00 0.19 0.59 Subtotal 2.52 0.00 1.20 3.72 Public Improvements San Pablo Avenue transit & public infrastructure 1.00 0.20 0.00 1.20 Upper Fairmount streetscape improvements 0.17 0.00 0.00 0.17 Creekside Park Lighting 0.20 0.00 0.00 0.20 Fairmount/Ashbury Intersection Improvements 0.70 0.10 0.00 0.80 Central/Liberty Streetscape Enhancements 1.10 0.20 0.00 1.30 Central/San Mateo Intersection (1-80) 1.30 0.20 0.10 1.60 Potrero/1-80 Intersection Improvements 0.85 0.10 0.04 0.99 Ohlone Greenway Urban Greening (Plaza & Safeway) 1.20 0.20 0.00 1.40 Ohlone Greenway Crossing Safety Projects 0.50 0.06 0.00 0.56 Ohlone Greenway Master Plan Implementation 3.40 0.30 0.10 3.80 New Public Safety Building 18.80 5.00 1.20 25.00 New Senior Center 7.50 2.00 0.50 10.00 County-owned Facility (New Library) 13.80 3.80 0.80 18.40 Subtotal 50.52 12.16 2.74 65.42 TOTAL 106.23 Timeframe for Performance Timeframe (FY ending) for Payment 2012-2021 2012-2026 2012-2021 2012-2026 2012-2021 2012-2026 2012-2021 2012-2026 2012-2021 2012-2026 2012 2012 2012 2012 2012 2012 2012 2013 2014-2016 2014-2016 2012 2013 2014 2015 2012 2013 2012-2020 2012-2020 2012-2021 2012-2026 2012-2021 2012-2026 2012-2021 2012-2026 Soft costs are those costs associated with the actual design and construction of a project, including: preparation of engineering/architectural plan and specifications, design development and review, coordination of bidding processes, construction inspections, construction management and those other costs necessary to implement the design and construction of a public improvement. · Administrative Costs are those costs for services associated with the development of a public improvement or program, including: the purchase of land; negotiation and development of agreements; public outreach processes; approval and permitting processes; financial, legal and other specialized consulting services; financial compliance and other governmental reporting, including financial administrative oversight; the administration of housing projects including monitoring of affordable housing agreements and prevailing wage requirements, resale restrictions, or other covenants associated with affordable housing projects; the drafting of funding availability notices and development of affordable housing agreement documents; and additional indirect City costs associated with the administrative support needed to carry out these public improvements and programs. ---PAGE BREAK--- Legend RDA Boundary ~ : ! El Cerrito City Limit - BART Railroad - Highway/Freeway ---PAGE BREAK--- Agenda Item No. 4(D) Attachment 3 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. 4(D) Attachment 3 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? ---PAGE BREAK--- Agenda Item No. 4(D) Attachment 3 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. 4(D) Attachment 3 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. 4(D) Attachment 3 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. 4(D) Attachment 3 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. 4(D) Attachment 3 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