CITY OF EAST PALO ALTO
OFFICE OF THE CITY MANAGER
2415 UNIVERSITY AVENUE
EAST PALO ALTO, CA 94303
Policy & Action
Item: #14B
City Council Agenda Report
Date: July 2, 2019
To: Honorable Mayor and Members of the City Council
Via: Jaime M. Fontes, City Manager
From: Sean Charpentier, Assistant City Manager
Patrick Heisinger, Community Development Director
Subject: Proposed Process Improvements and Approval of $5.95 Million in Pass Through Master Consultant Contracts to Support the City with Processing Development Applications
(Note: Continued from June 18, 2019 City Council meeting. No changes made to staff report).
Recommendation
1. Accept the Report on proposed process improvements to the City’s review of development applications.
2. Adopt a Resolution authorizing the City Manager to:
a. Execute a total of $5,950,000 in Master Consulting Contracts for professional services with the recommended consultants by service category and contract limits listed in Exhibit A to this Resolution and waive the formal bid procedures pursuant to East Palo Alto Municipal Code section 2.84.070(D) for said contracts; b. Delegate authority to the City Manager, until June 30, 2022, to utilize Developer Reimbursement Agreements, and Master Fee Reimbursement Agreements, in a form approved by the City Attorney, to establish terms of reimbursement for professional services and other allowable costs incurred related to development applications; and
c. To issue a Request for Qualifications (RFQ) to identify up to two consultants to help the City with building plan review services.
Alignment with City Council Strategic Plan
M
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This recommendation is primarily aligned with:
x Priority #3: Increase Organizational Effectiveness and Efficiency x East Palo Alto Affordable Housing Strategy
Background
The City’s Community and Economic Development (CEDD) and Public Works (PW) Departments will be experiencing a significant increase in development review activity over the next 2-3 years, exceeding the current CEDD and PW staffing capacity. To prepare planning and environmental documents necessary to review and prepare development applications, the City requires outside planning firms. Current and anticipated development proposals are described in Attachment 1, the Planning Workplan.
The City is currently processing 6 EIRs and two Negative Declarations. The City used the traditional RFP and contract award to select planning consultants for this work.
On October 4, 2016 the City Council authorized City staff to release an RFP for technical services for four projects, as well as to update the Community Development Department list of approved vendors. On January 17, 2017, the City awarded $954,282 in contracts for three EIRs (Sobrato Phase II, Bay Road 2020, The Primary School) and two negative declarations (EPA Arts Center and the Oxford Day Academy). Including preparation time for the RFP, the City required approximately 5 months to recruit CEQA and planning consultants. Also on January 17, 2017, the City Council adopted Resolution No. 4814, which established a qualified list of consultants. The City has been utilizing this qualified list of consultants for preparation of planning applications.
In September 2018, the City Council authorized City staff to issue an RFQ to the qualified list of planning consultants for the following projects:
TABLE 1
Anticipated Projects Requiring Environmental Review
Project Project Description
1 965 Weeks 150-unit affordable housing project
2 Four Corners Hotel 160 Unit Hotel project
3 University Circle Phase II 180,000 square foot office 4 Schembri Lane 8-12 unit affordable housing project
5 Affordable Housing Project #5 Conceptual housing project 6 Affordable Housing Project #6 Conceptual housing project 7 Office Project 100,000 sq. ft. Job Train/Ravenswood Clinic 204
On February 19, 2019, the City Council held a discussion regarding the expected growth in new and future development review activity. To allow the City to respond to the impending expansion in development activity without impactful project delays, staff introduced two potential complementary strategies: 1) implementation of staff efficiencies in development review processing by entering into Master Consultant Contracts (MCC) for professional services; and 2) consideration of supplemental staffing through Developer Reimbursement Agreements (DRA) with developers.
On April 2, 2019, the City Council awarded $944,768 to David J. Powers and $484,818 to EMC Planning to prepare planning documents for the projects listed in Table 1. This recruitment required approximately 6 months. The City time to secure planning and CEQA consultants has taken months because these are complicated projects, the Planning Dept. has experienced over 50% vacancies, and the Planning Dept was focused on the Development Code.
Also, on April 2, 2019 Council directed staff to issue an RFQ to identify consultants to assist with processing planning applications for the following projects:
x Proposed Office project at Jones Mortuary location (EIR) x Sandhill Euclid proposal for 600+ apartments’ (EIR)
x Sycamore Master/Site Plan
x Future projects, to be determined
This was a comprehensive RFQ that was intended to identify all consultants necessary for the City to process the significant increase in development applications for the next 2-3 years. The RFQ was sent only to firms that were on the qualified list approved by the City Council in January 2017.
The City’s RFQ sought the following services:
x Designated Contract Planner
x Environmental Review Analysis
x Housing Needs Assessment
x Fiscal Impact Analysis
x Design Review Services
x Engineering Review Analysis
x Transportation Consultants
x Arborist Services1
1 The City only received one proposal for Arborist services and therefore will be issuing a subsequent RFQ to identify consultant(s) for this service.
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While adding consultant services is an important tool for staff, it is also critical that the City adopt solutions for improving processes and maximizing staff capacity whenever appropriate.
During past discussions, the City Council appeared generally supportive of staff’s recommendations for creating an effective response to the current level of development interest. Staff committed to returning to City Council with a more in-depth discussion of processes and procedures that will ensure the City receives all allowable and applicable reimbursements for development activity, and also processes applications in a timely and efficient manner. The purpose of this memorandum is to provide information regarding staff’s proposed approach and seek City Council approval of consultant contracts for processing development applications in each service category.
Analysis
A total of fifteen (15) firms responded to the City’s RFQ. Since respondents were allowed to apply in more than one service category, the City received and reviewed 34 separate proposals. Attachment 2 details the Respondents’ Scores by Service Category.
Improving the Contracting Process for New Planning Applications To maximize efficiency of the City’s development review process, thus improving the City’s capacity and effectiveness in processing development applications and ensuring full cost recovery, staff recommends that the City Council delegate authority to the City Manager to: 1) execute Master Consultant Contracts (MCCs) in seven technical areas, as well as general consultant services; and 2) execute Developer Reimbursement Agreements (DRAs) to process more complex projects.
Master Consultant Contracts
A Master Consultant Contract (MCC) is an agreement between the City and a list of contractors selected by City Council to provide consultant services on an as needed basis.
Upon receipt of a planning application, staff would determine which MCCs must be utilized to process each application. This approach differs from the City’s Purchasing Ordinance (East Palo Alto Municipal Code, Chapter 2.84) which requires formal or informal bids for professional services for each specific scope of work, using a mechanism such as a Request for Proposals (RFP), for each technical service needed to process the application. Complex planning applications may require multiple consultant services and, therefore, multiple RFP processes. Each consultancy for a single development project must also be brought to City Council for review and approval in succession, adding significant time and duplication to the process. 206
By delegating authority to the City Manager to execute MCCs with consultants for technical expertise, development applications will then be processed in a more efficient manner. Staff will be able to access MCCs not only for the currently known projects, but also for projects that emerge in the near future, without delays associated with limited capacity and repeated City Council actions. Therefore, the City Manager recommends that the Council waive the bid procedures based upon these special circumstances.
While staff facilitates the work of consultants to ensure that the resultant product meets the City’s needs, the costs associated with these consultant contracts are wholly funded by the developer. For this reason, the General Fund is not impacted by the implementation of MCCs.
Establishing Maximum Contracting Authority
Over the next 2-3 years, staff estimates that contracting authority will be needed in several key service categories to process the expected volume of development applications. Staff seeks contracting authority in amounts greater than the sum of currently known projects in order to anticipate development applications that may be received within the next 2-3 years. Draft estimated costs associated with the technical services (by category) that each currently known development project is likely to require are provided in Attachment 3.
Staff recommends that the City Council authorize the City Manager to enter into contract with selected firms in the following service categories and at the following contract limits, as detailed in Table 2, below:
TABLE 2
Service Category Total Contract Category Limit No. of Firms Contract Planning $750,000 2
Environmental Review $2,500,000 3
Housing Needs Assessment $400,000 2
Fiscal Impact Analysis $400,000 2
Design Review $300,000 2
Engineering Review Analysis $750,000 2
Transportation Consultant $750,000 2
General Consultant Services $100,000 1
The results of the RFQ and staff’s recommendations regarding selection of specific firms within each service category is subject to City Council review and approval. Staff has the experience and expertise to effectively utilize consultants to help process development applications. Since the start of 2018, staff has managed multiple contracts for environmental work totaling approximately $2.7M and contracts for designated planning 207
services totaling $646,000.
The proposed contract amounts for each service category being requested would provide ample resources for staff to process the current pipeline of projects as well as other developments for which a Planning Application has yet to be submitted to the City.
The City has predevelopment applications from the developers for the proposed Office Project at the Jones Mortuary and Woodland Park’s proposal for 600 apartments. Staff also anticipate a predevelopment application from Harvest Properties, which is proposing a commercial project on the former Catalytica and Torres properties. Staff will use this new process for these three projects, and then additional planning projects as the applications are submitted.
Developer Reimbursement Agreements
For a development project of large scale, it is appropriate and prudent to request the developer to provide funding upfront to a) ensure that sufficient staff and consulting resources are in place to do work related to the development without detracting from other priorities, and b) to enable departments to anticipate and plan their work and staffing.
A Developer Reimbursement Agreement (DRA) would be a pass-through arrangement in which a developer consents to pay the City the full cost for a dedicated project planner and other consultant services necessary to complete the review and processing of that developer’s planning application. In addition, the DRA would require the developer to pay an administrative fee of up to 10% of the sum of all project-related consulting costs.
The administrative fee will compensate for the City’s overhead costs in staff time to review, process, and seek Planning Commission and/or City Council approval of a project. An example DRA is provided in Attachment 4.
Major projects that require City Council action, an Environmental Impact Report (EIR), other contract services, and a major investment of staff resources, typically demand the use of a contract planner and other consultants. For these projects, staff recommends the City and developer enter into a DRA, which would then allow the City to initiate all necessary reviews simultaneously using MCCs and dramatically reduce the duration of the entitlement process and impact to staff. The approach of using DRAs ensures full cost recovery of staff time dedicated to processing development applications.
Less complex projects may not utilize the DRA process, but staff would still access MCCs for any technical analysis that is required, and the majority of the planning work would be handled in-house by the City’s Planning staff. For these projects, the 208
application would be subject to the City’s customary Master Fee Reimbursement Agreement (MFRA)2
. However, there may be instances in which a developer and the City mutually agree to enter into a DRA for any project, including those of smaller size and lesser complexity, because the approach would be advantageous to the City in managing workload. An example of an MFRA is provided in Attachment 5.
Prioritization of Development Application Processing
Utilization of a DRA process does not alter the order in which a development application is reviewed nor when a project will be considered for approval. The City Council and City staff make these determinations as each project moves forward.
RFQ Results
Staff from the City’s CEDD and PW Departments reviewed and scored each proposal.
The top respondents, by service category, are outlined in Table 3, below:
TABLE 3
Service Category Highest Scoring Respondents Recommended Total Category Award
Designated Contract
Planner
x Rincon Consultants, Inc.
x Michael Baker International x $750,000
Environmental
Review Analysis
x Powers
x EMC Planning Group
x Kimley Horn
x $2,500,000
Housing Needs
Assessment
x BAE Urban Economics
x Hatch x $400,000
Fiscal Impact
Analysis
x Keyser Marsten
x BAE Urban Economics x $400,000
Design Review x Raimi and Associates
x Michael Baker International x $300,000
Engineering Review
Analysis
x CSG
x Kimley Horn x $750,000
Transportation
Consultant
x Hexagon Transportation Consultants, Inc.
x TJKM Transportation Consultants x $750,000
General Consultant
Services
x Raimi and Associates
x $100,000
TOTAL $5,950,000
2 With MFRA’s, in addition to the consultant services needed to process a specific development application, the City will also track and invoice the Developer for all City staff hours devoted to the project at the rate of $232 per hour. 209
For maximum flexibility, staff recommends that the contract amount with each firm be set at the maximum not-to-exceed value for the service category. The following example demonstrates how the maximum contract amount and service category contract limit would be implemented:
x Staff recommends that the City enter into contract with three firms for Environmental Review Analysis and establish the not-to-exceed value of each contract at $2.5 M. x If a development application requires Environmental Review Analysis, staff would be able to issue up to $2.5 M in pass-through agreement capacity to process the review through any of the approved consultants.
x Staff will monitor the expenditures from all three consultants to ensure the total sum of all contracted Environmental Review Analysis does not exceed $2.5 M. x Staff recommends a three year term for this authority.
Using this process will reduce the amount of time required to secure necessary consultant services to review planning applications. By contrast, issuing an RFP to the City’s approved qualified list, reviewing the proposals, and then securing City Council approval requires months, and must be repeated for each service associated with a single application. This proposed process will reduce the amount of transactional time so that the City and community may begin the important review of each project.
General Consulting Services
In addition to the specific service categories described above, staff recommends that a general consulting services contract also be issued to provide support as needed. Raimi and Associates has been selected in the Design Services category, and staff recommends a supplementary award for general consulting services in an amount not-to-exceed $100,000. The City utilized Raimi and Associates to assist with the passage of Vista 2035 – East Palo Alto General Plan. Raimi and Associates possesses deep knowledge of the City, the General Plan, the complexities of the Westside. The costs of the Raimi and Associates agreement would also be funded by developers.
Building Plan Review Assistance
When staff issued the RFQ for consulting services, the service category of Building Plan Review was not included. At this time, staff seeks City Council approval to issue an RFQ to identify two consultants who may provide building plan review services to help process current and future planning applications. The results of the RFQ and staff’s recommendations regarding selection of specific firms will be subject to City Council review and approval.
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Follow-up
Staff will provide the City Council with periodic updates on all development activity as part of the Semi-Annual Community and Economic Development Department Activity Report. Staff recommend delegating the authority to the City Manager until June 30, 2022 to account for the three years in which the staff anticipates the most projects coming in.
Fiscal Impact
There is no net fiscal impact. The City will enter into reimbursement agreements for all CEQA related professional services and other allowable costs incurred in relation to private development applications. Such activity is often referred as “Pass Through” development revenues and expenditures. It is anticipated this activity will be accounted in a Development Services Enterprise Fund beginning in FY 2019-20.
Public Notice
The public was provided notice of this agenda item by posting the City Council agenda on the City’s official bulletin board outside City Hall and making the agenda and report available at the City’s website and at the San Mateo County Library located at 2415 University Avenue, East Palo Alto.
Environmental
The items discussed in this memorandum are not considered a project under the provisions of the California Environmental Quality Act (CEQA) Attachments:
1. Planning Workplan
2. Respondents’ Scores by Service Category
3. Anticipated Consultant Services and Cost by Project (Draft Estimates)
4. Example Developer Reimbursement Agreement (DRA)
5. Example Master Fee Reimbursement Agreement (MFRA)
6. Resolution
Exhibit A – Recommended Consultant Award by Service Category and Contract Limit
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ATTACHMENT 1
PLANNING WORKPLAN
TASK FTE
Year 1
FTE
Year 2 CEQA STATUS PROJECT
MANAGER
1. Core Planning Activities
Planning Counter Support 1.5 1.5 NA City Staff
Mobility Study Support 0.1 0.1 NA City Staff
Engineering Dept Support 0.1 0.1 NA City Staff
Flood Prevention (CRS Program) & FEMA PPI 0.15 0.15 NA City Staff Second Unit Task Force/Garage Conversion Group 0.1 0.1 NA City Staff Review of Outside Agencies EIRs 0.1 0.1 NA City Staff
Support to Code Enforcement Division 0.25 0.25 NA City Staff 20 percent Contingency Staff Planning 0.2 0.2 NA City Staff Subtotal 2.5 2.5
2. Priority or Significant Projects
EPACenter Arts-DB-MND 0.05 0.05 Existing DJP City Staff Sobrato Phase II, 220,000 Office Project-EIR 0.5 0.1 Existing DJP Contract Planner-Ami Primary School 511 student school-EIR 0.25 0.1 Existing DJP City Staff Romic 1.4 million square feet office-EIR 0.45 0.45 Existing DJP Contract Planner-Ami Light Tree Apartments 185 Apartment Units 0.05 0.05 Existing EMC City Staff 2331 University Mixed Use Project 30, 000sf 0.1 0.1 City Staff 1st Tier Smaller Permits Impacted by Water Moratorium
(30+ units) 0.3 0 In House City Staff
Mobile Home Park Conversion 0.15 0.15 NA City Staff
Subtotal 1.85 1
3. Anticipated Projects Requiring Environmental Review
965 Weeks (150 affordable Units) 0.15 0.15 Awarded 4/2/19 EMC City Staff Four Corners Hotel 160 unit new hotel-EIR 0.25 0.35 Awarded 4/2/19 DJP City Staff University Circle Office Tower 180,000 sf 0.25 0.35 Awarded 4/2/19 DJP Contract Planner-Art Schembri 8-12 units, 2 other affordable housing projects 0.1 0.1 Awarded 4/2/19 EMC City Staff Affordable Housing Project #5 0.15 0.15 Awarded 4/2/19 EMC TBD Affordable Housing Project #6 0.15 0.15 Awarded 4/2/19 EMC TBD 100,000 Office Project in RBD for JobTrain/Ravenswood
Clinic-EIR 0.25 0.25 Awarded 4/2/19 DJP Contract Planner-Ami Subtotal 1.3 1.5
4. New and Future Projects
Woodland Park Sand Hill Properties Master Plan Project
600 new residential units at 2031 Euclid-EIR 0.25 0.25 Proposed MCC 6/18/19 Contract Planner-TBD Jones Mortuary – EIR 0.25 0.25 Proposed MCC 6/18/19 Contract Planner-TBD Sycamore Properties Master Plan Project (Undetermined) 0.25 0.25 Proposed MCC 6/18/19 Contract Planner-TBD Subtotal 0.75 0.75
Total FTES 6.4 5.75
Authorized FTES 4 4
Surplus/(Deficit) -2.4 -1.75
Existing Contract Planners (Art and Ami) 0.8 0.8
Surplus/(Deficit) -1.6 -0.95
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ATTACHMENT 2
RESPONDENTS’ SCORES BY SERVICE CATEGORY
Service Category Respondents Score
Designated Contract Planner
Rincon Consultants, Inc. 91
Michael Baker International (MBI) 90
EMC Planning Group 88
M-Group 86.7
CSG 86.3
Raimi 85.7
Kimley Horn 82
Environmental Review
Analysis
Powers 92.3
EMC Planning Group 88.7
Kimley Horn 87.7
Rincon Consultants, Inc. 86.7
M-Group 86.3
Michael Baker International (MBI) 84.3
Housing Needs Assessment
BAE Urban Economics 91
Hatch 87.7
Michael Baker International (MBI) 82.7
Fiscal Impact Analysis
Keyser Marston 93.7
BAE Urban Economics 90.3
Hatch 89.7
Strategic Economics 86
Kimley Horn 67.3
Michael Baker International (MBI) 67.3
Design Review
Raimi 91.3
Michael Baker International (MBI) 87.3
CSG 86
EMC Planning Group 85.7
Engineering Review
Analysis
CSG 93.3
Kimley Horn 84.7
Michael Baker International (MBI) 82.3
Transportation Consultant
Hexagon Transportation Consultants, inc. 93.3
TJKM Transportation Consultants 87.7
Michael Baker International (MBI) 87
Kimley Horn 85
213
ATTACHMENT 3
Anticipated Consultant Services and Cost by Project (Draft Estimates) 214
ATTACHMENT 4
DRAFT FORM OF A DEVELOPER REIMBURSEMENT AGREEMENT
(Subject to City Council approval for
assignment of a contract planner and outside consultant services) THIS DEVELOPER REIMBURSEMENT AGREEMENT (“Agreement”), dated _____________, ____, between the CITY OF EAST PALO ALTO, a municipal corporation (“City”), and [______________________________________________________________________] (“Developer”), is made with reference to the following facts:
A. The Developer has submitted a planning application for [_________________________] (“Project”] and, as such, the Developer desires to enter into this Agreement with City.
B. The Developer desires to obtain the services of an outside Contract Planner to provide dedicated project management services to facilitate and reduce delays in processing the Developer’s Project.
C. The Developer also acknowledges that in order to process the Developer’s Project, the City needs to obtain other outside consultant services, including planning, environmental, engineering, transportation, economic and/or legal services.
D. The Developer agrees to enter into this Agreement to reimburse the City for costs associated with a contract planner, consultant services and staff costs that are not covered in the City’s Master Fee Schedule.
NOW, THEREFORE, the parties agree as follows:
1. Establishment of Reserve Account. Upon the execution of this Agreement, Developer shall deposit with City the sum of [minimum 25 percent deposit] to be held by City as a Reserve Account and disbursed from time to time in accordance with the terms of this Agreement. City shall keep separate records of the Reserve Account, showing all deposits made by Developer and all disbursements from the account made by City, and such records shall be available to Developer for inspection at any time during City’s regular business hours. However, City shall not be required to segregate the Reserve Account into a separate fund and no interest shall accrue thereon.
2. Reimbursement Obligations. City shall draw upon the Reserve Account to pay all actual costs, fees, and expenses incurred by City in connection with processing Developer's Project, including but not limited to:
a. Contract Planner Services. Developer shall reimburse City for all actual costs, fees, and expenses for any work or services performed or provided by an outside contract planner (on a time and materials basis at an agreed upon 215
hourly rate) relating to processing Developer’s Project. While the City has sole and exclusive right to select a contract planner, the City will consult with Developer prior to selection.
b. Contract Services. Developer shall reimburse City for all actual costs, fees, and expenses for any other outside contract work or services including engineering, planning, environmental and legal services related to processing Developer’s Project. Contract services may also include, but are not limited to, fiscal impact analysis, housing impact assessment, design review, and additional transportation services.
3. Estimate. Exhibit A provides an estimate of anticipated staff and contract services, including the estimated cost for a contract planner. This estimate is not definitive and, as the Project evolves, City will confer with Developer regarding additional or revised services, as needed. Notwithstanding any other provision of this Agreement, the City shall have the sole and exclusive right to select, hire, or terminate any consultant.
4. Administrative Fee. In lieu of collecting any applicable administrative processing fees in the City’s Master Fee Schedule, Developer shall reimburse City an administrative fee equal to ten (10) percent of the total estimate shown in Exhibit A to cover City staff cost to administer and manage the outside consultants and contracts that are required for the Project. The administrative fee shall cover inter-departmental costs including, but are not limited to, the Community and Economic Development, Public Works and Finance Departments, City Attorney’s Office, and City Manager’s Office.
5. Reports to Developer and Reinstatement of Reserve Account. City shall provide a quarterly report to Developer showing the amount and purpose of each draw from the Reserve Account. If, at any time, the Reserve Account balance is reduced below the sum of Twenty Five Thousand Dollars ($25,000), City shall give written notice of such fact to Developer and Developer shall, within twenty (25) days after receipt of such notice, deposit with City such additional amounts as may be necessary to restore the balance of the Reserve Account to [amount established with each contract based on Exhibit A]. In the event of any failure or refusal by Developer to deposit such additional amounts, the City may impose a late charge in the amount of [flat fee or a percentage of the initial deposit]. Furthermore, City shall be entitled to suspend all further activities pursuant to section 10 below until such time as the parties have settled any dispute.
6. Termination of Agreement. Upon completion of Project approvals, withdrawal of the application by the Developer, or termination of the Agreement, any balance remaining in the Reserve Account after payment in full of all costs and expenses owed to the City under the terms of this Agreement, shall be refunded to Developer within 45 days.
7. Notices. Any notices required or permitted to be given hereunder shall be in writing and shall be delivered via email to the email addresses listed below and either personally 216
delivered or sent by certified mail, return receipt requested, to the other party at the following addresses:
To Developer: To City:
8. Entire Agreement. This Agreement constitutes the entire agreement between the parties with regard to the payment of costs associated with processing of permit applications and supersedes and cancels any prior agreement or understandings, whether written or oral. This Agreement can only be modified by a written amendment hereto executed by both parties.
9. Authorization. The person signing this Agreement for Developer hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of the Developer.
10. Suspension or Cessation. City may, in its sole discretion, suspend or cease processing the Developer’s Project and shall have no obligation to incur any additional fees, costs, or expenses if: (i) Developer fails to timely replenish the Reserve Account in accordance with this Agreement, (ii) Developer otherwise breaches the terms of this Agreement, or (iii) the City terminates this Agreement.
11. Indemnity. Developer agrees, to the fullest extent authorized by law, to defend, hold harmless, and indemnify City and its elected and appointed officials, officers, employees, and agents from and against all claims, liability, costs, expenses, loss, or damages of any nature, including reasonable attorneys’ fees, arising out of or in any way connected to Developer’s failure to perform its obligations under this Agreement, excluding the willful misconduct or gross negligence of City.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
THE CITY OF EAST PALO ALTO, [___________Developer__________] a municipal corporation
By: ______________________________ By: _____________________________ City Manager
ATTEST: APPROVED AS TO FORM:
By: _______________________________ By: _______________________________ City Clerk City Attorney
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ATTACHMENT 5
DRAFT FORM OF A MASTER FEE REIMBURSEMENT AGREEMENT
(City Manager authorization for outside consultant services) THIS MASTER FEE REIMBURSEMENT AGREEMENT (“Agreement”), dated _____________, ____, between the CITY OF EAST PALO ALTO, a municipal corporation (“City”), and [______________________________________________________________________] (“Developer”), is made with reference to the following facts:
E. The Developer has submitted a planning application for [_________________________] (“Project”] and, as such, the Developer desires to enter into this Agreement with City.
F. The Developer acknowledges that in order to process the Developer’s Project, the City needs to obtain other outside consultant services, including planning, environmental, engineering, transportation, economic and/or legal services.
G. The Developer agrees to enter into this Agreement to reimburse the City for costs associated with consultant services that are not covered in the City’s Master Fee Schedule.
NOW, THEREFORE, the parties agree as follows:
12. Establishment of Reserve Account. Upon the execution of this Agreement, Developer shall deposit with City the sum of [minimum 25 percent deposit] to be held by City as a Reserve Account and disbursed from time to time in accordance with the terms of this Agreement. City shall keep separate records of the Reserve Account, showing all deposits made by Developer and all disbursements from the account made by City, and such records shall be available to Developer for inspection at any time during City’s regular business hours. However, City shall not be required to segregate the Reserve Account into a separate fund and no interest shall accrue thereon.
13. Reimbursement Obligations. City shall draw upon the Reserve Account to pay all actual costs, fees, and expenses incurred by City in connection with processing Developer’s Project, including but not limited to: Outside contract work or services including engineering, planning, environmental, and legal services related to processing Developer’s Project. Contract services may also include, but are not limited to, fiscal impact analysis, housing impact assessment, design review, and additional transportation services. Notwithstanding any other provisions of this Agreement, the City shall have the sole and exclusive right to select, hire, or terminate any consultant.
14. Reports to Developer and Reinstatement of Reserve Account. City shall provide a quarterly report to Developer showing the amount and purpose of each draw from the Reserve Account. If, at any time, the Reserve Account balance on this account is reduced below 218
the sum of Ten Thousand Dollars ($10,000) [or another amount set by City], City shall give written notice of such fact to Developer and Developer shall, within twenty five (25) days after receipt of such notice, deposit with City such additional amounts as may be necessary to restore the balance of the Reserve Account to [amount established with each contract]. In the event of any failure or refusal by Developer to deposit such additional amounts, the City may impose a late charge in the amount of [flat fee or a percentage of the initial deposit.] Furthermore, the City shall be entitled to suspend all further activities pursuant to section 8 below until such time as the parties have settled any dispute.
15. Termination of Agreement. Upon completion of Project approvals, withdrawal of the application by the Developer, or termination of the Agreement, any balance remaining in the Reserve Account after payment in full of all costs and expenses owed to the City under the terms of this Agreement, shall be refunded to Developer within 45 days.
16. Notices. Any notices required or permitted to be given hereunder shall be in writing and shall be delivered via email to the email addresses listed below and either personally delivered or sent by certified mail, return receipt requested, to the other party at the following addresses:
To Developer: To City:
17. Entire Agreement. This Agreement constitutes the entire agreement between the parties with regard to the payment of costs associated with processing of permit applications and supersedes and cancels any prior agreement or understandings, whether written or oral. This Agreement can only be modified by a written amendment hereto executed by both parties.
18. Authorization. The person signing this Agreement for Developer hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of the Developer.
19. Suspension or Cessation. City may, in its sole discretion, suspend or cease processing the Developer’s Project and shall have no obligation to incur any additional fees, costs, or expenses if: (i) Developer fails to timely replenish the Reserve Account in accordance with this Agreement, (ii) Developer otherwise breaches the terms of this Agreement, or (iii) the City terminates this Agreement.
20. Indemnity. Developer agrees, to the fullest extent authorized by law, to defend, hold harmless, and indemnify City and its elected and appointed officials, officers, employees, and agents from and against all claims, liability, costs, expenses, loss, or damages of any nature, 219
including reasonable attorneys’ fees, arising out of or in any way connected to Developer’s failure to perform its obligations under this Agreement, excluding the willful misconduct or gross negligence of City.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
THE CITY OF EAST PALO ALTO, [___________Developer__________] a municipal corporation
By: ______________________________ By: _____________________________ City Manager
APPROVED AS TO FORM:
By: _______________________________
City Attorney
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RESOLUTION NO. ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EAST PALO
ALTO AUTHORIZING THE CITY MANAGER TO EXECUTE MULTIPLE
MASTER CONSULTANT CONTRACTS TO SUPPORT THE CITY WITH
PROCESSING OF DEVELOPMENT APPLICATIONS
WHEREAS, the City of East Palo Alto Community and Economic Development (CEDD) and Public Works (PW) Departments are and will be experiencing a significant increase in development review activity over the next 2-3 years, exceeding the current CEDD and PW staffing capacity; and WHEREAS, the City of East Palo Alto CEDD and PW Departments have expressed urgent need to address current development project application demand and comply with critical State mandates by entering into developer-reimbursed professional services agreements; and
WHEREAS, on April 2, 2019, the City Council directed staff to issue a Request for Qualifications (RFQ) for consulting services to support the City of East Palo Alto with processing development applications; and
WHEREAS, on April 5, 2019, staff released an RFQ to the City’s preapproved lists of firms for the following services: designated contract planner; environmental review analysis; housing needs assessment; fiscal impact analysis; design review; engineering review analysis; transportation consultant; and WHEREAS, a total of fifteen (15) firms responded to the City’s RFQ, in most cases responding to multiple service areas, resulting in a total of 36 submitted proposals; and
WHEREAS, members of the CEDD and PW Departments evaluated each proposal based on the scoring system outlined in the RFQ and identified top scoring respondents in each service category; and
WHEREAS, staff seeks to improve the City’s process of reviewing development applications by utilizing Master Consultant Contracts, Developer Reimbursement Agreements, and Master Fee Reimbursement Agreements; and WHEREAS, City staff identified that two consultants to assist with building plan review services will also be required over the next 2-3 years to improve processing of development applications.
ATTACHMENT 6
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NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF EAST PALO ALTO HEREBY authorizes the City Manager to:
1. Execute a total of $5,950,000 in Master Consulting Contracts for professional services with the recommended consultants by service category and contract limits listed in Exhibit A to this Resolution and waive the formal bid procedures pursuant to East Palo Alto Municipal Code section 2.84.070(D) for said contracts;
2. Delegate authority to the City Manager until June 30, 2022, to utilize Developer Reimbursement Agreements, and Master Fee Reimbursement Agreements, in a form approved by the City Attorney, to establish terms of reimbursement for professional services and other allowable costs incurred related to development applications; and
3. To issue a Request for Qualifications (RFQ) to identify up to two consultants to help the City with building plan review services.
PASSED AND ADOPTED this 18th day of June 2019 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Lisa Gauthier, Mayor
ATTEST: APPROVED AS TO FORM:
Maria Buell, City Clerk Rafael E. Alvarado, Jr. City Attorney 222
EXHIBIT A
RECOMMENDED CONSULTANT AWARD BY
SERVICE CATEGORY AND CONTRACT LIMIT
Service Category Highest Scoring Respondents Recommended Total Category Award
Designated Contract
Planner
x Rincon Consultants, Inc.
x Michael Baker International x $750,000
Environmental Review
Analysis
x Powers
x EMC Planning Group
x Kimley Horn
x $2,500,000
Housing Needs
Assessment
x BAE Urban Economics
x Hatch x $400,000
Fiscal Impact Analysis x Keyser Marsten
x BAE Urban Economics x $400,000
Design Review x Raimi and Associates
x Michael Baker International x $300,000
Engineering Review
Analysis
x CSG
x Kimley Horn x $750,000
Transportation
Consultant
x Hexagon Transportation Consultants, Inc.
x TJKM Transportation Consultants x $750,000
General Consultant
Services
x Raimi and Associations x $100,000
TOTAL $5,950,000
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