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AGREEMENT FOR CONSULTANT SERVICES
This Agreement for Consultant Services (the "Agreement") is made and entered into this 25th day of August 2025, by and between THE CITY OF PACIFICA, a municipal corporation (hereinafter referred to as "CITY") and Willdan Financial Services a corporation (hereinafter referred to as "CONSULTANT"). CITY and CONSULTANT may be referred to individually as “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, CITY requires comprehensive cost and fee study services in connection with the Development Impact Fee (DIF) Study, Full Cost Allocation Plan (CAP), and User Fee Study; WHEREAS, CONSULTANT is qualified to perform such services; and WHEREAS, CONSULTANT has agreed to provide CITY with such services on the terms and conditions set forth herein.
NOW, THEREFORE, for the considerations hereinafter set forth, CONSULTANT and CITY agree as follows:
ARTICLE 1 - SCOPE OF SERVICES
1.1. Scope of Work. CONSULTANT agrees to furnish the services set forth in Exhibit A, Scope of Work, which is attached hereto and incorporated herein (the "Services").
1.2. Compliance with Law. The Services shall be performed in accordance with all applicable federal, state and local laws, ordinances, rules, regulations and orders.
1.3. Time is of the Essence. CONSULTANT agrees to diligently prosecute the Services. In the performance of this Agreement, time is of the essence.
1.4. Professional Competence. CONSULTANT represents that it has the professional skills necessary to perform the Services and that it will perform the Services in a skillful and professional manner. CONSULTANT represents that it has all the necessary licenses to perform the Services and shall maintain them throughout the term of this Agreement.
CONSULTANT agrees that the Services shall be performed consistent with the professional skill and care ordinarily provided by consultants practicing in the same or similar locality under the same or similar circumstances. CITY and CONSULTANT agree that CONSULTANT is in responsible charge of the Services. Acceptance by CITY of the Services does not operate as a release of CONSULTANT from professional responsibility for the Services performed.
1.5. Independent Contractor. CONSULTANT is an independent contractor and not an employee of CITY. CONSULTANT expressly warrants that it will not represent that it is an employee of CITY.
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1.6. Confidentiality. CONSULTANT agrees to maintain in confidence and not disclose to any person, firm, governmental entity, or corporation, without CITY's prior written consent, any trade secret or confidential information, knowledge or data relating to the products, process, or operation of CITY. CONSULTANT further agrees to maintain in confidence and not to disclose to any person, firm, governmental entity, or corporation any data, information, technology, or material developed or obtained by CONSULTANT during the performance of the Services. The covenants contained in this Section 1.6 shall survive the termination of this Agreement for whatever cause.
1.7. Ownership of Material. Any reports and other material prepared by or on behalf of CONSULTANT under this Agreement (collectively, the "Documents") shall be and remain the property of CITY. All Documents not already provided to CITY shall be delivered to CITY on the date of termination of this Agreement for any reason. The Documents may be used by CITY and its agents, employees, representatives, and assigns, in whole or in part, or in modified form, for all purposes CITY may deem appropriate without further employment of or payment of any compensation to CONSULTANT.
1.8. Documentation. CONSULTANT shall keep and maintain full and complete documentation and accounting records, employee time sheets, and correspondence pertaining to the performance of the Services, and CONSULTANT shall make such documents available for review and/or audit by CITY and CITY's representatives at all reasonable times for at least four years after the termination of this Agreement or completion of the Services.
1.9. Testimony. CONSULTANT agrees to testify at CITY's request if litigation is brought against CITY in connection with the Services. Unless the action is brought by CONSULTANT or is based upon CONSULTANT's negligence, CITY will compensate CONSULTANT for the preparation and the testimony at CONSULTANT's standard hourly rates.
ARTICLE 2 - COMPENSATION
2.1. Compensation. Compensation for the Services shall be in accordance with Exhibit B, Compensation, attached hereto and incorporated herein. It is agreed that the compensation for the Services shall not exceed $93,260 ("Cost Ceiling").
2.2. Invoices. CONSULTANT shall submit monthly invoices in a form satisfactory to CITY on or before the tenth day of each month for Services provided during the preceding month. CONSULTANT shall submit time and cost records as necessary to substantiate performance of the Services. Within 35 days after receipt of each such invoice, CITY shall verify the accuracy of the invoice, correct the charges where appropriate and as discussed and mutually agreed with CONSULTANT, and make payment to CONSULTANT in an amount equal to the amount of such invoice, as verified or - 3 -
corrected by CITY. No payment hereunder shall be construed as evidence of acceptance of any of CONSULTANT's work. CITY reserves the right to withhold payment from CONSULTANT on account of Services not performed satisfactorily, delays in CONSULTANT's performance of Services, or other defaults hereunder. CONSULTANT shall not stop or delay performance of the Services under this Agreement on account of payment disputes with CITY.
2.3. Status Reports. Together with each monthly invoice, CONSULTANT shall submit a status report detailing the amount expended on the Services to that date and the remaining amount to be expended before the Cost Ceiling is reached. CONSULTANT shall notify CITY in writing when payments have reached 90 percent of the Cost Ceiling.
2.4. Withholding. In lieu of holding retention, CITY shall withhold CONSULTANT's final payment until the Services are complete and CITY has received all Documents.
CONSULTANT shall diligently continue and complete performance of the Services if the Services are not complete at the time CONSULTANT has performed services up to the Cost Ceiling.
ARTICLE 3 - TIME OF PERFORMANCE
3.1. Effective Date. This Agreement shall become effective upon execution of the second signature and shall remain in full force and effect until the Services are completed (the "Term"). CONSULTANT agrees to complete all services by December 2026.
3.2. Termination. This Agreement may be terminated at any time by CITY upon written notice to CONSULTANT.
3.3. Final Payment. CONSULTANT shall be entitled to compensation for Services performed up to the time of such termination, it being understood that any payments are full compensation for the Services rendered under this Agreement.
3.4. Other Remedies. Nothing in this Article 3 shall be deemed to limit the respective rights of the parties to terminate this Agreement for cause or otherwise to exercise any rights or pursue any remedies which may accrue to them.
ARTICLE 4 - DESIGNATED CONTACTS
4.1. CITY Contact. CITY designates Marisol Gómez, its Director of Finance and Administrative Services, as its contact who shall be responsible for administering and interpreting the terms and conditions of this Agreement, for matters relating to CONSULTANT's performance under this Agreement, and for liaison and coordination between CITY and
CONSULTANT. In the event CITY wishes to make a change in CITY 's representative, CITY will notify CONSULTANT of the change in writing.
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4.2. CONSULTANT Contact. CONSULTANT designates Chris Fisher as its contact, who shall have immediate responsibility for the performance of the Services and for all matters relating to performance under this Agreement. Any change in CONSULTANT's designated contact shall be subject to written approval by CITY.
ARTICLE 5 - INDEMNIFICATION AND INSURANCE
5.1. Indemnification. CONSULTANT shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to the Services (collectively "Claims"), defend, indemnify, and hold harmless CITY, its Officials, officers, employees and agents (the "CITY Parties"), except to the extent the Claims are attributable to CITY Parties' gross negligence or willful misconduct.
CONSULTANT shall defend the CITY Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to those parties. CONSULTANT shall have no right to seek reimbursement from the CITY Parties for the costs of defense.
The obligations contained in this Section 5.1 shall survive the termination of this Agreement for whatever cause for the full period of time allowed by law and shall not in any way be limited by the insurance requirements of this Agreement.
5.2. Health and Safety. CONSULTANT may perform part of the Services at sites which contain unknown working conditions and contaminated materials. CONSULTANT shall be solely responsible for the health and safety of CONSULTANT's employees during the performance of the Services.
5.3. Insurance. CONSULTANT and all of CONSULTANTS employees, subcontractors, consultants and other agency shall procure, provide and maintain at all times during the performance of this Agreement, and for such additional periods as described herein, the insurance listed below with insurers licensed to do business in the State of California and with a Best's rating of no less than A:VII.
A. Commercial Automobile Liability Insurance. Commercial Automobile Liability Insurance providing bodily injury liability and property damage, to protect against all liability arising out of the use of any owned, leased, passenger or commercial automobile at a minimum amount of $1,000,000 combined single limit and $2,000,000 aggregate. Coverage shall apply to hired and non-owned autos.
B. Commercial General Liability Insurance. Commercial General Liability Insurance, with limits providing a minimum amount of $1,000,000 combined single limit coverage for each occurrence, $2,000,000 general aggregate and $2,000,000 products/completed operations aggregate. The insurance shall cover all operations including but not limited to the following: (1) premises, operations - 5 -
and mobile equipment liability; (2) completed operations and products liability; (3) contractual liability insuring the obligations assumed by CONSULTANT in this Agreement; (4) broad form property damage liability; (5) personal injury liability endorsement, including death; and (6) automobile bodily injury and property damage insurance, including all owned, hired and non-owned equipment.
C. Professional Liability Insurance. Professional Liability Insurance protecting against liabilities arising out of or in connection with negligent acts, errors, or omissions of CONSULTANT and all of CONSULTANTS employees, subcontractors, consultants and other agency in connection with this Agreement, at a minimum amount of $1,000,000 combined single limit coverage and $1,000,000 aggregate, on a "claims made basis" with a continuation of coverage extension for liabilities for two years from the date the Services are substantially complete. Such professional liability policies shall include coverage for liability assumed by the CONSULTANT under this Agreement.
D. Workers Compensation Insurance. Workers Compensation insurance, occupational disease insurance and employer’s liability insurance shall be required with minimum limits as required by law, covering all workplaces involved in this Agreement.
E. Policy Terms. Concurrently with execution of this Agreement, CONSULTANT shall provide CITY with Certificates of Insurance evidencing that CONSULTANT has obtained or maintains the insurance required by this Section
5.3. The Certificates shall be on forms acceptable to CITY. CONSULTANT shall also furnish CITY with original endorsements with the following documentation:
• Precluding cancellation or reduction in coverage before the expiration of thirty (30) days after CITY shall have received written notification thereof from CONSULTANT by United States mail;
• Providing that CONSULTANT's insurance shall apply separately to each insured against whom claim is made or suit is brought, and include a “separation of insureds” or “severability” clause which treats each insured separately, except with respect to the limits of the insurer's liability (cross-liability endorsement); • Excepting CONSULTANT’S professional liability insurance, naming CITY, its City Council, boards, commissions, committees, officers, employees and agents as additional insureds (“Additional Insureds”); and
• Providing that for any claims relating to CONSULTANT's services hereunder, CONSULTANT's insurance coverage shall be primary insurance with respect to CITY, its City Council, boards, commissions, committees, officers, employees and agents, and that any insurance or self-insurance maintained by CITY for itself, its City Council, boards, commissions, committees, officers, employees and agents shall be in excess of CONSULTANT's insurance and shall not be contributory with it.
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• It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverages requirements and/or limits shall be available to the Additional Insured, including but not limited to any umbrella or excess insurance.
Furthermore, the requirements for coverage and limits shall be the greater of:
(a) the minimum coverage and limits specified in this Agreement; or (b) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured.
F. Material Breach. If CONSULTANT fails to maintain insurance coverage or provided insurance documentation which is required pursuant to this Agreement, it shall be deemed a material breach of this Agreement. CITY, at its sole option, may terminate this Agreement and obtain damages from CONSULTANT resulting from said breach. Alternatively, CITY may purchase the required insurance coverage, and without further notice to CONSULTANT, may deduct from sums due to CONSULTANT any premium costs advanced by CITY for such insurance.
These remedies shall be in addition to any other remedies available to CITY.
ARTICLE 6 - NOTICES
All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by facsimile or reputable overnight courier and shall be deemed received upon the earlier of: (1) if personally delivered, the date of delivery to the address of the person to receive such notice; (2) if delivered by Federal Express or other overnight courier for next business day delivery, the next business day; (3) if sent by facsimile, with the original sent on the same day by overnight courier, the date on which the facsimile is received, provided it is before 5:00 P.M. Pacific Time; or (4) if sent electronically, the date of delivery on the confirmed read receipt. Notice of change of address shall be given by written notice in the manner described in this Article 6. Rejection or other refusal to accept or the inability to deliver because of a change in address of which no notice was given shall be deemed to constitute receipt of the notice or communication sent. Unless changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall be as follows:
If to CITY: City Manager
170 Santa Maria Avenue
Pacifica, CA 94404
Phone: (650) 738-7409
Facsimile: (650) 359-6038
Email:
[email protected]
If to CONSULTANT: Chris Fisher
Director, Vice President
Willdan Financial Services
27368 Via Industria, Suite 200
Temecula, California 92590
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T: 951.587.3528
F: 951.587.3510
ARTICLE 7 - MISCELLANEOUS
7.1. Entire Agreement. This Agreement represents the entire understanding of CITY and CONSULTANT as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by an amendment in writing signed by each party.
7.2. No Assignment. The Services are deemed unique and neither party shall assign, transfer, subcontract or otherwise substitute its interest in this Agreement or any of its obligations hereunder without the prior written consent of the other party. As limited by this Section
7.2, this Agreement is to be binding on the successors and assigns of the parties hereto.
7.3. Severability. If any part of this Agreement is determined to be unconstitutional, invalid or beyond the authority of either party, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement can be interpreted to give effect to the intentions of the parties.
7.4. Counterparts. This Agreement may be signed in counterparts and, when fully signed, such counterparts shall have the same effect as if signed in one document.
7.5. Choice of Law. This Agreement and all matters relating to it shall be governed by the laws of the State of California without reference to its choice of laws principles and venue shall be in the appropriate court in San Mateo County, California.
7.6. Waiver. No failure on the part of either Party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder. A waiver by either CITY or CONSULTANT of any breach of this Agreement shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party's rights with respect to any other further breach.
7.7. Mediation. In the event the parties are unable to resolve a dispute arising under this Agreement through good faith negotiations, the parties agree to submit the matter to mediation with a mutually agreeable mediator. Prior to the mediation, the parties shall exchange any documents reasonably necessary to resolve the matter to be mediated.
7.8. Attorney’s Fees. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, which may be set by the court in the - 8 -
same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.
7.9. Interpretation. In the event this Agreement is ever construed in any dispute between the parties, it and each of its provisions shall be construed without regard to the party or parties responsible for its preparation and shall be deemed to have been prepared jointly by the parties. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement.
7.10. Authority. Each individual executing this Agreement on behalf of one of the parties represents that he or she is duly authorized to sign and deliver the Agreement on behalf of such party and that this Agreement is binding on such party in accordance with its terms.
7.11. Third Parties. Nothing contained in this Agreement shall create a contractual relationship with, or cause of action in favor of, a third party against either the CITY or CONSULTANT. CONSULTANT’s Services hereunder are being performed solely for the benefit of CITY.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.
CITY OF PACIFICA
By: Date
__________, City Manager
Approved As To Form
By:
Michelle Marchetta Kenyon, City Attorney
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CONSULTANT
_______________________________
By: Date
By: Date
EXHIBIT A
SCOPE OF WORK
1. Project Overview
The consultant (Willdan) shall perform a comprehensive Development Impact Fee (DIF) Study, Full Cost Allocation Plan (CAP), and User Fee Study for the City of Pacifica. The objective is to ensure legal compliance with applicable laws (e.g, AB 1600, Prop 26, Prop 218, etc.), maximize transparency and cost recovery, and ensure long-term fiscal sustainability of the City's fee structures while minimizing staff workload.
2. Project Components & Deliverables
A. Development Impact Fee (DIF) Study
• Conduct a legally compliant nexus analysis in compliance with AB 1600 / Mitigation Fee Act
• Review existing relevant planning documents (General Plan, Local Coastal Program, Capital Improvement Plan, etc.)
• Determine growth projections and identify facilities and capital projects impacted by new development
• Calculate updated development impact fees based on clearly documented assumptions • Benchmark against up to eight (8) appropriate peer jurisdictions • Attend up to four City Council/stakeholder public meetings (e.g., study sessions, and fee adoption hearing) and present the findings
• Deliverables:
o Draft and Final Report
o Fee schedule with defensible calculation basis
o PowerPoint presentation materials (as needed)
B. Cost Allocation Plan (CAP)
• Identify all central service departments, overhead and indirect cost centers • Develop allocation methodologies using defensible assumptions bases and City data • Allocate central service costs across departments in compliance with 2 CFR Part 200 and best practices
• Prepare a flexible and editable excel-based model and supporting documentation for the City’s ongoing internal use
• Deliverables:
o Draft and Final Cost Allocation Plan Report
o Excel model/tool with full supporting documentation that is editable by City staff C. Comprehensive User Fee Study
• Review all City user fee-based services (e.g., Administration, Planning, Building and Public Works, Police and Fire, Parks, Beaches & Recreation) • Identify direct and indirect costs to determine fully burdened cost of service • Evaluate current fee structure against full cost and policy objectives • Identify any fees that may warrant subsidy, policy adjustment, or removal and provide justification for consideration
• Benchmark up to 20 fees with up to 5 appropriate peer jurisdictions • Participate in up to two (2) City Council/stakeholder meetings (e.g., study session, and adoption hearing)
• Deliverables:
o Draft and Final User Fee Report
o Updated user fee schedule with cost basis documentation o Council presentation materials
D. Legal Defensibility and Support
Willdan will provide up to 20 hours of support following the completion of the project and adoption of the updated fees, in the event of a legal or other challenge. This time is allotted to respond to questions and/or provide clarification or supporting information as needed, to address questions or challenges about the adopted fees. Any work beyond the initial allotment of 20 hours would be billed at Willdan’s hourly rates included in this agreement in Exhibit B.
3. Project Management & Communication
• Hold kick-off meeting with City staff
• Develop a detailed project timeline and milestone schedule within 2 weeks of contract execution
• Establish bi-weekly check-ins by email and conference calls when necessary. • Consolidate and clarify all data requests to reduce staff time burden to the best extent possible, given that the Cost Allocation Plan/User Fee Study and the Development Impact Fee Study will utilize different sets of data, and the analysis for each of these studies is independent of the other.
• Deliverables:
o Finalized project timeline and schedule
o Biweekly project status updates
o Meeting notes and summaries (as needed)
4. City Responsibilities
• Provide timely access to relevant financial, operational, and planning documents • Coordinate internal staff meetings and interviews as needed • Provide timely responses to requested project data and information within agreed timelines.
• Provide feedback on draft deliverables within agreed timelines
5. Timeline
The Consultant shall complete the scope of services outlined in this exhibit within a mutually agreed-upon schedule, with the goal of minimizing staff burden while meeting statutory and policy objectives. The following are target milestones, subject to adjustment upon project kickoff:
• Project kickoff: within 2 weeks of contract execution • Draft Development Impact Fee (DIF) Study: Within twenty-four (24) weeks of the start of the task
• Draft Cost Allocation Plan (CAP): Within sixteen (16) weeks of the project kickoff • Draft Comprehensive User Fee Study: Within eighteen (30) weeks of the project kick off City Council and stakeholder presentations: to be scheduled in coordination with City staff in alignment with the City Council’s regular calendar
• Final report and deliverables: no later than three (3) weeks prior to the scheduled City Council adoption meetings
Municipal Advisory Project Disclaimer
Willdan is a registered municipal advisory firm with the U.S. Securities and Exchange Commission (“SEC”), as such we are providing the following disclaimer representing that we are not acting as a Municipal Advisor (as defined by the SEC), to the City of Pacifica, in any capacity as it relates to the Development Impact Fee, Cost Allocation Plan and Comprehensive Fee Study project in this contract.
(i) The City uses the services of one or more municipal advisors registered with the SEC to advise it in connection with municipal financial products and the issuance of municipal securities; (ii) The City is not looking to Willdan to provide, and City shall not otherwise request or require Willdan to provide, any advice or recommendations with respect to municipal financial products or the issuance of municipal securities (including any advice or recommendations with respect to the structure, timing, terms, and other similar matters concerning such financial products or issues);
(iii) The provisions of this proposal and the services to be provided hereunder as outlined in the scope of services are not intended (and shall not be construed) to constitute or include any municipal advisory services within the meaning of Section 15B of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations adopted thereunder;
(iv) For the avoidance of doubt and without limiting the foregoing, in connection with any revenue projections, cashflow analyses, feasibility studies and/or other analyses Willdan may provide the City with respect to financial, economic or other matters relating to a prospective, new or existing issuance of municipal securities of the City, (A) any such projections, studies and analyses shall be based upon assumptions, opinions or views (including, without limitation, any assumptions related to revenue growth) established by the City, in conjunction with such of its municipal, financial, legal and other advisers as it deems appropriate; and (B) under no circumstances shall Willdan be asked to provide, nor shall it provide, any advice or recommendations or subjective assumptions, opinions or views with respect to the actual or proposed structure, terms, timing, pricing or other similar matters with respect to any municipal financial products or municipal securities issuances, including any revisions or amendments thereto; and
(v) Notwithstanding all of the foregoing, the City recognizes that interpretive guidance regarding municipal advisory activities is currently quite limited and is likely to evolve and develop during the term of the potential engagement and, to that end, the City will work with Willdan throughout the term of the potential Agreement to ensure that the Agreement and the services to be provided by Willdan hereunder, is interpreted by the parties, and if necessary amended, in a manner intended to ensure that the City is not asking Willdan to provide, and Willdan is not in fact providing or required to provide, any municipal advisory services.
EXHIBIT B
Compensation
1. Total Compensation
The total compensation for all services described in Exhibit A shall not exceed $93,260, inclusive of all labor, expenses, and applicable taxes for the Cost Allocation Plan, Comprehensive User Fee Study and Development Impact Fee study.
2. Fee Structure
Compensation shall be based on the following schedule:
• Cost Allocation Plan $11,410
• Comprehensive User Fee Study $29,950.
• Development Impact Fee study $51,900
3. Invoicing & Payment
The consultant shall invoice the City monthly for work completed based on percentage of project completed, detailing hours worked, and tasks performed. Payment shall be made within 30 days of invoice approval.
4. Reimbursable Expenses
The fixed amount of the contract does not allow for any other reimbursable expenses.
5. Change Orders / Additional Services
Any services not included in Exhibit A must be approved in writing by the City before work begins and may be subject to a contract amendment.
Additional meetings beyond those outlined in the scope of services can be added for a cost of $1,250 per meeting.
The following are the hourly rates for the Willdan Staff for additional services: