1 AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into as of the 1st day of July, 2023 by and between the City of Pleasant Hill ("City") and RSG, Inc., ("Consultant").
RECITALS
A. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and
B. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein.
AGREEMENT
1. Scope of Services. Consultant shall perform the services described on Exhibit A which is attached hereto and incorporated herein by reference. Consultant shall provide said services at the time, place, and in the manner specified in Exhibit A, subject to the direction of the City through its staff that it may provide from time to time."
2. Time of Performance. The services of Consultant are to commence upon the effective date of this Agreement and shall continue annually for three fiscal years (FY 2023/24, 2024/25, and 2025/26 until all authorized work is approved by the City. Consultant will provide the deliverables identified in the attached scope of services by no later than June 30th of each fiscal year of the agreement.
3. Compensation. Compensation to be paid to Consultant shall be in accordance with the Schedule of Charges set forth in Exhibit A, which is attached hereto and incorporated herein by reference. In no event shall Consultant's compensation exceed $180,000 without additional authorization from the City. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the City at the time of payment.
4. Method of Payment. Consultant shall submit monthly billings to City describing the work performed during the preceding month. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. City shall pay Consultant no later than 30 days after approval of the monthly invoice by City staff. When payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until the final work under this Agreement has been accepted by City.
5. Ownership of Documents. All plans, studies, documents and other writings prepared by and for Consultant, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Consultant for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any 2 other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request. 6 Independent Contractor. It is understood that Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Consultant hereby expressly waives any claim it may have to any such rights.
7. Interest of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement.
Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant will not:
a. make a governmental decision whether to:
1. approve a rate, rule, or regulation;
2. adopt or enforce a law;
3. issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
4. authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires agency approval;
5. grant City approval to a contract that requires agency approval and to which the City is a party, or to the specifications for such a contract;
6. grant City approval to a plan, design, report, study, or similar item;
7. adopt, or grant City approval of, policies, standards, or guidelines for the agency, or for any subdivision thereof; or
b. serve in a staff capacity with the City and in that capacity participate in making a governmental decision as defined in 2 California Code of Regulations (“C.C.R”) § 18704(a) and (b) or perform the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code under 2 C.C.R. § 87302. (2 C.C.R. § 18700.3.)
3 8. Professional Ability of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
9. Indemnity. Consultant agrees to defend, indemnify and hold harmless the City, its officers, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all related costs and expenses in connection therein), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers.
10. Insurance Requirements.
a. Consultant, at Consultant's own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies. To the extent that any portion of the following requirements are satisfied through excess or umbrella coverage, such coverage shall be maintained on the same terms as are required for the primary policies under this Agreement.
i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his/her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non-renewal of all Workers' Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in 4 an amount of not less than two million dollars ($2,000,000) combined single limit for each occurrence.
iv. Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from Consultant's operations under this Agreement, whether such operations be by the Consultant or by its employees, subcontractors, or subconsultants. The amount of this insurance shall not be less than two million dollars ($2,000,000) on a claims-made annual aggregate basis, or a combined single-limit per occurrence basis. b. Policy Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and shall be endorsed with the following specific language:
i. The City of Pleasant Hill, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work or operations.
ii. This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it.
If Consultant maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Consultant.
iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring Consultant.
iv. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers.
v. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City.
c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of such deductibles or self-insured retentions.
5 d. Certificates of Insurance and Endorsements. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. e. Wasting Policies. No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
f. Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
11. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations.
12. Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Consultant to practice its profession. Consultant shall maintain a City of Pleasant Hill business license.
13. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Contra Costa, Martinez, California.
14. Written Notification. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent prepaid, first class mail. Any such notice, demand, etc. shall be addressed to the other party at the address set forth herein below. Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: Ethan Bindernagel
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523-3323
If to Consultant: James C. Simon, Principal
17872 Gillette Avenue, Suite 350
Irvine, CA 92614
6 15. Consultant's Books and Records.
a. Consultant 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 City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement.
b. Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt of notices in this Agreement.
d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant's business, City may, by written request by any of the above named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall.
Access to such records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor-in-interest.
16. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement.
17. Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
18. 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.
19. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
20. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least 7 one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
21. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement shall be permitted only with the express consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law.
22. Termination. This Agreement may be terminated immediately for cause or by either party without cause upon fifteen days' written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above.
CITY OF PLEASANT HILL: CONSULTANT:
__________________________ By:
June W. Catalano, City Manager
Title:
Business License #
APPROVED AS TO FORM: ATTEST:
__________________________ __________________________
Janet E. Coleson, City Attorney Danielle K. Navarro, City Clerk Attachments: Exhibit A – Scope of Services and Schedule of Charges 0000041411
President
8 EXHIBIT A – SCOPE OF SERVICES AND SCHEDULE OF CHARGES
SCOPE OF SERVICES
AFFORDABLE HOUSING SERVICES – CITY OF PLEASANT HILL
1. Habitat 85 Woodsworth Lane: Manage the implementation of a Disposition and Development Agreement. According to the latest extension granted in October 2022, Habitat has a September 27, 2023 deadline to obtain project entitlements; December 31, 2023 deadline to obtain other funding commitments; and January 31, 2024 deadline to close escrow. RSG will track Schedule of Performance milestones to help all parties coordinate to close escrow. If Habitat requests further extensions, RSG will prepare necessary City Council agenda items.
2. Habitat 250 Cleaveland Road: This property closed escrow in 2023. If needed, RSG will coordinate with City staff and the City Attorney to amend a Loan Agreement and Affordability Covenant to address potential floodplain constraints.
3. SAHA Choice in Aging: The City executed a $736,000 Predevelopment Loan in March 2022. An additional $2 million Construction Loan has been committed. RSG will coordinate with City staff and the City Attorney to draft construction loan documents after SAHA has secured other gap financing. This is currently anticipated by Spring 2024. This timeline may shift if SAHA applies for different rounds of funding.
4. Ongoing annual reporting services of the City as housing successor to the former redevelopment agency, including the annual housing expenditure report due April 1.
5. Preparation of staff reports and resolutions and attendance at City Council meetings as required for the above activities.
6. Compliance monitoring of 716 Stubbs Road (Upper Unit of Triplex), Garden Park Apartments, Grayson Creek Apartments, Hookston Manor Senior Apartments, Iron Horse Apartments (aka Lincoln Green Apts), Villa Montanaro Apartments, The Post, and one Homeownership Unit by desk review.
7. Other tasks as may be assigned by staff.
Fee Proposal, Billing Rates, and Invoices:
Based on the forgoing and assumed implementation schedule, RSG is proposing a 3-year budget as shown below:
2023-24 2024-25 2025-26 3 Year Total
$35,000 $35,000 $35,000 $105,000
Billing Rate Schedule
Principal / Director $ 275
Senior Associate $ 200
Associate $ 185
Senior Analyst $ 150
Analyst $ 135
Research Assistant $ 125
Technician $ 80
Clerical $ 60
SCOPE OF SERVICES
AFFORDABLE HOUSING SERVICES – CITY OF PLEASANT HILL
RSG does not charge clients for travel or mileage (except direct costs related to field work/surveys), parking, standard telephone/fax expenses, general postage, or incidental copies.
However, we do charge for messenger services, overnight shipping/express mail costs, and teleconferencing services. We also charge for copies of reports, documents, notices, and support material in excess of five copies. These costs are charged back at the actual expense plus a 10% surcharge.
RSG issues monthly invoices payable upon receipt, unless otherwise agreed upon in advance.
Invoices identify tasks completed to date, hours expended, and the hourly rate.
SCOPE OF SERVICES
SUCCESSOR AGENCY SERVICES – CITY OF PLEASANT HILL
1. Preparation of three annual Prior Period Adjustment (“PPA”) due in October 1, beginning with PPA for FY 2021-22 due October 1, 2023.
2. Preparation of three annual Recognized Obligation Payment Schedules (“ROPS”) (due February 1 of each year) beginning with ROPS 2024-25 due February 1, 2024, and transmittal to staff, the Oversight Board, and finally the Department of Finance, including a review and analysis on suggested next steps.
3. Respond to technical and factual inquiries from staff, the Oversight Board, the Department of Finance, and the County Auditor-Controller.
4. Computation and assistance with RPTTF (reimbursement) payments to DPH Noteholder LLC (Downtown Pleasant Hill), Beaufort Partners LP (Kohl’s), and PH Holdings (Friedman’s).
5. Prepare staff reports, resolutions, policy documents, and other supporting materials, as necessary, for Oversight Board and Successor Agency meetings.
6. Other Successor Agency items as directed by staff.
Fee Proposal, Billing Rates, and Invoices:
Based on the forgoing and assumed implementation schedule, RSG is proposing a 3-year budget as shown below:
2023-24 2024-25 2025-26 3 Year Total
$25,000 $25,000 $25,000 $75,000
Billing Rate Schedule
Principal / Director $ 275
Senior Associate $ 200
Associate $ 185
Senior Analyst $ 150
Analyst $ 135
Research Assistant $ 125
Technician $ 80
Clerical $ 60
RSG does not charge clients for travel or mileage (except direct costs related to field work/surveys), parking, standard telephone/fax expenses, general postage, or incidental copies.
However, we do charge for messenger services, overnight shipping/express mail costs, and teleconferencing services. We also charge for copies of reports, documents, notices, and support material in excess of five copies. These costs are charged back at the actual expense plus a 10% surcharge.
RSG issues monthly invoices payable upon receipt, unless otherwise agreed upon in advance.
Invoices identify tasks completed to date, hours expended, and the hourly rate.