1 REQUEST FOR PROPOSALS
COMMERCIAL CANNABIS TAX ASSESSMENTS
Released March 10, 2022
Important Dates
Proposals Due: March 28, 2022, at 5:00 pm (PST)
City of Salinas
Community Development Department
65 West Alisal Street (Second Floor), Salinas, CA 93901 Project Contact: Maira Robles
Project Contact Email: [email protected]
2 GENERAL INFORMATION
T
he City of Salinas (City) is located on California’s Central Coast, 12 miles from the Pacific Ocean and Monterey Bay. In addition to being the county seat, Salinas is the largest city in Monterey County with a population of 163,542 people. The City is a compact, urban community surrounded by agriculture on all sides. Agriculture in Monterey County is over a $2 billion- dollar industry, and the surrounding Salinas Valley is known as the "Salad Bowl of the World." Commercial Cannabis is regulated in the C ity of Salinas by Municipal Code Chapter 5 – Public Peace and Morals under Article VII Cannabis. The City of Salinas regulates the establishment and the operation of a limited number of commercial cannabis businesses, including cultivation, dispensaries, manufacturing, distribution, and delivery services. Permits are awarded competitively, and applications are only accepted during specified permitting rounds.
A
dditional information regarding Commercial Cannabis may be viewed on the City’s website at:
https://www.cityofsalinas.org/our-city-services/community-development/commercial-cannabis- businesses
SUMMARY OF REQUEST
T
he City of Salinas is requesting qualifications from consulting firms to provide proposals for one or both of the following Scopes I and/or II:
S
cope I: Commercial Cannabis Tax (CCT) Assessments for the City's licensed commercial cannabis businesses: cultivation, dispensary, manufacturing, delivery services, and testing; and/or
S
cope II: Commercial Cannabis Taxation Recommendation Report.
Th
e City seeks a consultant team, or consultant teams, that have extensive experience in preparing tax assessments and/or preparing cannabis taxation recommendation reports. The consultant team may be a single, multi -service firm, or comprised of a planning lead with sub- consultants as required.
3 BACKGROUND
Commercial Cannabis Business Permitting
The City issues two types of commercial cannabis business permits: Commercial Cannabis Permits (CCP) and Administrative Permits (AP). CCPs are applicable to Cultivation, Delivery, Dispensary, Distribution, and Manufacturing. Administrative Permits are app licable to Testing Laboratories, Small Distribution (business premises under 500 square feet), Research and Development Facilities, and Nurseries.
Commercial Cannabis Permits
The City of Salinas allows for issuance of a maximum of 23 CCPs. Because the available permits are limited, the City accepts applications only during designated “rounds”, allowing for applicants to competitively vie for permits. Table 3 below shows permit quotas, active permits (permits for businesses that are either in operation or working towards operation), and operational businesses as of January 2022.
Table 3. CCP Quotas
Business Type Permit Quota Active Permits* Operational Businesses* Cultivation 5 3 1
Delivery 3 3 3
Dispensary 5 5 3
Distribution 5 5 2
Manufacturing 5 5 2
Total 23 21 11
*As of January 2022.
Table 4 below shows the 21 businesses that have been awarded permits and are currently either operational or pursuing operational status. The updated status of the City’s 21 active CCPs is shown below.
Table 4. Permits Awarded in 2017 through 2021
Business Name Address Type Business Status
1. CannaCruz 1156 Abbott Street Dispensary Operational
2. Compassionate Bay 1051 Terven
Avenue
Delivery Operational
3. Golden Essentials 1020 Merrill Street Delivery Operational
4. Purple Trilogy 1020 Merrill Street Delivery Operational
5. Cypress Manufacturing 1353 Dayton
Street
Distribution Operational
6. Cypress Manufacturing 20 Quail Run
Circle
Manufacturing Operational
4 7. Emerald Skyway, LLC 1610 Moffett
Street
Dispensary Operational
8. 710 Combinator (Grupo Flor) 518 Work Street Manufacturing Operational
9. East of Eden (Grupo Flor) 514 Work Street Dispensary Operational
10. Flor X (Grupo Flor) 516 Work Street Distribution Operational
11. Flor Cultivation 1155 Harkins
Road
Cultivation Partially
Operational
12. Emerald Skyway Manufacturing,
LLC
1610 Moffett
Street
Manufacturing Not Operational
13. Emerald Skyway Cultivation,
LLC
1610 Moffett
Street
Cultivation Not Operational
14. E7 Salinas, LLC 347 W. Market
Street
Dispensary Not Operational
15. E7 Salinas, LLC 347 W. Market
Street
Distribution Not Operational
16. E7 Salinas, LLC 347 W. Market
Street
Manufacturing Not Operational
17. Horizon Salinas, LLC 320 W. Market
Street
Dispensary Not Operational
18. Horizon Salinas, LLC 320 W. Market
Street
Distribution Not Operational
19 Cypress Manufacturing
Cultivation
1353-B Dayton
Street
Cultivation Not Operational
20. Sanborn Distribution 737 Sanborn Place Distribution Not Operational
21. Sanborn Manufacturing 737 Sanborn Place Manufacturing Not Operational
Eleven (11) businesses are now operational, and ten (10) businesses are still working towards operational status, two of which have previous indefinite extensions. The delays have involved challenges related to physical buil ding improvements and site selection as well as state licensing challenges and newly issued permits.
Administrative Permits
Unlike CCPs, there are no limits on how many administrative permits can be issued for commercial cannabis businesses. Administrat ive permits can be applied for at any time and do not require review by the Cannabis Selection Committee. Obtaining and maintaining an administrative permit is considerably simpler and less expensive in comparison to the CCP process. However, applicants for administrative permits must also obtain a state license. Table 5 below shows the administrative permits that have been issued and remain active (business is operational or is working towards operational status).
5 Table 5. Administrative Permits: Operational Status
Business Name Address Type Business Status*
1. OPM Holdings 743 Sanborn Place Small Distribution Operational
2. ProForma Labs 1514 Moffett
Street
Testing Lab Operational
3. American Biotech Testing 607 Brunken
Avenue
Testing Lab Operational
*As of January 2022
In addition to the three businesses listed above, a number of other applicants have been awarded Administrative Permits but have abandoned the venture prior to achieving operational status. There have been no administrative permit submittals in 2021.
Tax Revenue from the Commercial Cannabis Industry
Measure L, adopted by the voters of Salinas in November 2016, requires certain commercial cannabis businesses to pay a commercial cannabis business tax every quarter, beginning January 1, 2017. The original tax rates were scheduled to increase in 2020; however, in December 2019 Council voted to forgo the scheduled increase. Therefore, the rates listed below remain in effect.
Table 9 lists the rates levied on each business type. Taxes are not levied on the business types not listed.
Table 9. Cannabis Business Tax Rates
Business Type Current Rate
Delivery 5% of gross receipts
Dispensary 5% of gross receipts
Manufacturing 5% of gross receipts
Cultivation $15 per square foot
Nursery $2 per square foot
The Community Development Department coordinates with the Finance Department to monitor tax collection and the good standing of each business. The annual assessments were performed by MGO and provided detailed auditing of tax payments. A few businesses had deferred or late tax payments. However, as of January 2022, all businesses are caught up with their respective tax payments for the first time since the start of the collection of these taxes.
6 Table 10 below shows cannabis revenue by businesses t hat conducted commercial cannabis operations from 2017 through 2021. Table 11 compares tax revenue per quarter from 2018 through 2021.
Table 10. Salinas Cannabis Industry Tax Revenue by Permittee: 2017-2021 Business Name Business
Type
2017
Total
2018
Total
2019 Total 2020 Total 2021 Total
1. Cypress
Manufacturing
Manufacturing $335,379 $482,057 $561,166 $491,149 $509,850
2. 710 Combinator Manufacturing $4,937 IA $247 $20,135 $86,371
3. Emerald
Skyway
Dispensary IA $226,967 $247,140 $107,333 $192,574
4. East of Eden Dispensary IA $58,508 $671,348 $841,909 $732,932
5. CannaCruz Dispensary IA IA $31,003 $169,425 $296,121
6. Compassionate
Bay
Delivery $14,955 $43,067 $42,314 $89,507 $70,184
7. Golden
Essentials
Delivery $24,034 $46,029 $46,658 $26,360 $32,056*
8. Purple Trilogy Delivery IA $13,819 $28,165 $67,325 $40,561
9. Flor Cultivation IA IA IA IA $8,679 $73,539
10. ProForma Labs Testing
Laboratory
E E E E E
11. American
Biotech Testing
Testing
Laboratory
E E E E E
Total: Industry-
wide
$374,368 $870,448 $1,628,413 $1,842,033 $2,034,187
IA = business was inactive during this term, i.e. not yet conducting commercial operations and paying the cannabis business tax
E = business type is exempt from local cannabis tax
*Includes $7,978.11 outstanding
Table 11. Salinas Cannabis Industry Tax Revenue by Quarter: 2018 through 2021 Year Q1 Q2 Q3 Q4
2018 $120,736 $143,838 $328,894 $276,979
2019 $343,833 $432,000 $409,701 $442,778
2020 $470,916 $503,765 $357,502 $509,849
2021 $536,363 $525,501 $514,153 $458,169*
Q = quarter (three-month period)
*$7,978.11 outstanding
7 SCOPE OF WORK
The following describes specific components to be included in the scope of work. There are two scopes in this RFP. Consultants may submit proposals for one or both scopes.
The City is open to suggestions other than or in addition to those listed which facilitate the completion of the reports or improve reporting outcomes. It is anticipated that the final scope of work will not be approved until the final contract is executed with the selected Consultant and the scope has been further refined as determined by City staff and the Consultant.
The City will provide the Consultant with t he following: background information and copies of relevant and available reports and data. Other departments will be involved as well in the review and comment of draft reports. A designated Ci ty project manager will coordinate the internal review process upon delivery of draft and final reports by the Consultant. Reports must be provided electronically in Word and pdf formats with changes provided in track changes.
Consultant will provide any digital illustrations and figures in an editable format, so that all work produced by the Consultant can also be manipulated and reproduced by City staff without any technical or conversion problems.
Scope I
Project Scope for Commercial Cannabis Tax Assessments and Compliance Reports:
1. Assessments- Perform Commercial Cannabis Tax Assessments for the City's licensed commercial cannabis businesses: cultivation, dispensary, manufacturing, delivery services, and testing.
In conducting these assessments, the Consultant shall:
• Review the applicable terms of the Ordinance and the Business’ procedures and processes for collecting, recording, summarizing, and reporting its gross receipts. • Conduct non-statistical testing during the period under review. • Recalculate Cannabis Business Tax due.
• Compare the Cannabis Business Tax filings submitted to the City to the remittances made to the California Department of Tax and Fee Administration and to the Business’ Point of-Sale (POS) system gross receipts for the period assessed. • Compare both the Cannabis Business Tax filings and POS system sales data to the Business’ general ledger.
2. Compliance Reports - Submit a Draft Report for each business to the City for review and feedback, followed by a Final Report. Reports shall include a summary of information collected and analyses performed detailing the findings, observations, conclusions, and recommendations regarding compliance with State law and Salinas’ Commercial Cannabis Ordinance. Areas of compliance review include but are not limited to product tracking and safety, security, management of employees, waste disposal, odor control and tax remittances. As necessary, based on the revenue assessments and information gathered from both the City and the commercial cannabis businesses, Consultant shall provide the 8 City findings and recommendations to strengthen the businesses' reporting of gross sales and CCT.
Scope II
Project Scope for Cannabis Taxation Recommendation Report (3-to-6-month timeline):
1. Data Collection – Existing Conditions - Consultant shall work with the Community Development and Finance Departments to compile and analyze sales revenue and taxation data since 2017 for the following business types: delivery, dispensary, manufacturing, cultivation, and nursery.
2. Changes Regarding State Taxation - Consultant shall analyze changes to state taxation rates since the local rates were established in 2017 and analyze the overall taxation impact to the 5 business types described above.
3. Market Analysis - Consultant shall evaluate the current Salinas cannabis market and review audited reports to determine strength of businesses and identify impediments to growth including, but not limited to taxation. This study shall also include recommendations on market strategies for cannabis given Salinas’ unique assets.
4. Comparison Analysis and Table – The Consultant shall provide cannabis taxation data of jurisdictions that are comparable in size and demographics to the Cit y. This research should also consider best practices on taxation to maximize revenue, market stability, and economic growth.
5. Final Recommendation Report – Consultant shall compile the data and develop a set of recommendations on taxation rates for delivery dispensary, manufacturing, cultivation, and nursery based upon Salinas’ overall market strategy, best practices, and feasibility of each business type. It is expected that different businesses will have different recommended taxation rates and data and market and feasibility analyses will inform the re
6. Presentation of Materials – In addition to frequent phone calls and email communications with staff, during which portions of the work may be discussed and reviewed, Consultant will present initial findings at an internal City staff meeting (via zoom) for further refinement. Consultant will also be available to attend and answer questions at two (2) in- person meetings: 1) Cannabis Subcommittee Meeting and 2) City Council.
Optional Tasks
Please provide costs for any optional tasks and for Consultant’s recommended additional optional tasks.
9 QUALIFICATION PROPOSAL FORMAT
To expedite and maintain consistency in the evaluation process, each proposal to this RFP shall be organized in accordance with this section. Proposals will be rated and ranked according to evaluation criteria provided in the next section. Proposal submissions shall contain thorough description and analysis of the following information in the order presented below:
1. Brief Cover Letter/Letter of Introduction
2. Executive Summary (maximum two pages)
3. Lead Project Contact
o Name, title, and telephone number of the prospective consultant’s designated lead contact person for communications pertaining to this proposal
4. Project Team
o Description of team members assigned to the project and their respective roles. It is expected that once the analysis begins, the project team will remain in place until the work is completed. Please include statements regarding the length of commitment of the proposed staff if they are not available for the duration of this project.
o A brief biography or resume of each team member.
o Identification of specific sub -contractors (if any) who will be assigned to the project, and their specific roles and responsibilities.
5. Firm Experience and Qualifications
o A general description of the services provided by the proposer’ s firm and sub - consultant (if any) and their experience working with municipal departments in cannabis monitoring and/or taxation.
o A list of representative projects completed by the firms and individuals proposed to work on this project that best exemplify the work requested in this RFP. o For each project reference, include the project name, the client contact, the client’s phone number and email, the dates the work was accomplished, and a brief description of the work accomplished.
o Optional: Consultant and sub-consultant document samples for similar projects.
10 6. Scope of Work including Tasks and Deliverables
o A brief narrative (1-2 pages maximum) describing the approach and work plan for completing the scope of work. On a per task basis the narrative should identify the designated team member(s) responsible for completing the work, specific deliverables, and the number of meetings attended.
o Any additional suggestions Consultant believes would be valuable to include in this effort and any suggestions for further clarifying the scope or work and the usefulness of the product.
7. Budget Estimate
o A detailed budget estimate in matrix form including the hourly rates and time commitments for all team members and sub-consultants by task for the project. o Denote any proposed optional tasks.
o Include similar information for any sub-contractor.
8. Project Schedule (1-2 pages maximum)
o Include timeframe for completion of tasks, including milestone dates for primary deliverables.
o Include discussion of where the project timeline may slip or is susceptible to delay if assumptions are not met relative to project task completion. As it is anticipated the project will have an assertive schedule, it is important for the City to understand the proposer’s expectations for City staff document review timeframes included in this schedule.
o For project management purposes, the schedule should indicate how often there are meetings with City staff, as well as Commission and City Council meetings.
9. General Contract Requirements
o Proof of Insurability . A brief statement or certificate of insurance from an acceptable insurance company setting forth that insurance coverage as requ ired in the attached sample contract, at a minimum, will be available at the time of commencement of the project. The City reserves the right to request additional insurance coverages and amounts through the final Agreement negotiated between the City and consultant selected.
o Concurrence with contract provisions. A brief statement that the proposer concurs with the provisions of the City’s standard contract as attached to the RFP. Under certain circumstances, and subject to the discretion of the City, some provisions of the contract may be modified upon final c ontract negotiations with the selected consultant.
11 EVALUATION CRITERIA
It is the City’s sole desire to contract with a qualified, professional consultant that has the proven experience, resources, and professional expertise to deliver the requested docum ent(s). A committee comprised of City staff members will conduct evaluation of the proposals. The initial screening will be based on an objective review of the proposal received based on the criteria set forth in this RFP.
Proposals will be evaluated according to qualifications, experience, capabilities, references, resources, scope, schedule, cost, current workload, and demonstrated competence in performing the work required (not necessarily in that order). The proposal needs to fully respond to items listed in this RF P; needs to constitute a team that is experienced and qualified to meet the requirements of this project based on relevant experience; and needs to demonstrate the ability and capacity to identify and plan specific tasks to complete the project in a professional manner on schedule and within budget. The City will select the consultant (or consultants) that best meet(s) the requirements put forth in the RF P. The following criteria will be considered in evaluation of proposals:
Evaluation Criteria Points
Demonstrated project understanding and scope of work and Consultant’s proposed methodology and familiarity with applicable practices and methodologies for the proposed work
20 Firm qualifications and demonstrated past experience, performance, and ability of to deliver high quality work for relevant projects of similar complexity in diverse, rural/urban communities
20 Team member qualifications and experience : adequate technical, financial, and staffing resources for co mpletion of the scope of work within the proposed time schedule; demonstrated qualification of the project leader and assurance of his or her principal involvement in the project through completion.
20 Capacity and track record of delivering projects on time and within budget.
Track record for meeting scheduled milestone dates , cost control , and quality of performance in previous contracts.
20 References from previous clients 20
12 PROPOSAL(S) SUBMITT AL
Proposal(s) shall consist only of electronic materials; pages must be numbered. Submittals must be sent to:
Maira Robles, Administrative Aide, Community Development Department [email protected]
All submittals shall be received no later than Monday, March 28, 2022, at 5:00 p.m. (PST).
Proposals received after 5:00 p.m . on the due date will not be considered. Upon receipt, all material submitted in response to this request become the property of the City of Salinas and may be considered public information pursuant to applicable law.
INQUIRIES
There will be no pre-submittal meeting for this proposal. Any questions regarding this RFP may be emailed to [email protected] by 5:00 p.m. (PST) on Friday, March 18, 2022. All submitted questions and responses will be posted on the City website www.cityofsalinas.org by Wednesday, March 23, 2022. No questions regarding this RFP will be answered over the phone.
Proposers that contact City personnel or City Council members after the City releases the RFP shall be disqualified. All addenda shall become part of this RFP. A signed copy of any addendum shall be included in the proposal.
CITY PROCESS
City staff will review and evaluate the submitted proposals based on the stated evaluation criteria.
Staff will contact other agencies for feedback concerning previous work. It is expected that one or more firms will be invited for an interview, however it is the quality of the proposals received that will determine who will be invited to take part in an interview process. The City reserves the right to forgo the interview process and proceed directly to selection of the preferred firm (or firms) in the event that a proposal is deemed superior in content.
The City retains the right to select the qualified finalists. The staff recommendation will be based upon the quality of the proposal, including the experience of the proposed project team, project manager, and experience conducting similar type of work. The City anticipates entering into an agreement with the selected firm(s) based on a negotiated fee and a negotiated scope of work. If an agreement on the fee cannot be reached, the City reserves the right to end negotiations and enter into negotiations with the next highest ranked consultant. The City Manager will consider the staff recommendation and award the contract for the negotiated final scope of work pursuant to the Municipal Code, which may also include consideration by the City Council.
13 CONDITIONS AND RESPONSIBILITIES OF REQUEST
1. General Conditions . The City of Salinas reserves the right to (1) reject any or all responses, (2) postpone award of the contract for a period not to exceed sixty (60) days from the date replies are due, (3) waive informalities in the responses, and (4) take whatever action or make whatever decision it determines to be in the best interest of the City. All proposals will remain in effect and legally binding for at least sixty (60) days from the date of submission. A contract agreement shall not be binding or valid with the City unless and until it is executed by authorized representatives of the City and of the Selected Consultant.
The City reserves the right to request additional information from any and all prospective firms as deemed necessary by the City in order to evaluate the proposals. This process may not be used, however, as an opportunity to submit missing documentation or to make substantive revisions to the original proposal.
A prospective firm may withdraw their proposal at any time prior to the date and the time which is set forth herein as the deadline for submittal of proposals.
2. Liability of Costs and Responsibility. Each prospective firm submitting a proposal in response to this Request for Proposals agrees that the prepara tion of all materials and presentation for submittal to the City is at the prospective firm’s sole cost and expense, and the City will not, under any circumstances, be responsible for any costs or expenses incurred by a prospective firm.
Prospective firms are responsible for making necessary investigations and examination of records. Failure to do so will not act to relieve any condition of the proposed agreement or the requirements set out in this RFP. It is mutually understood and agreed that the submission of a proposal shall be considered conclusive evidence that the prospective firm has made such examinations and investigations. No request for modification of a proposal shall be considered after its submission on the grounds that the prospective f irm was not fully informed as to any fact or condition.
The selected consultant shall be required to assume responsibility for all services offered in the proposal whether or not they possess them within their organization. The selected consultant will be the sole point of contact with regard to contractual matters, including payment of any and all charges resulting from the contract.
3. Standard Agreement . A sample professional services agreement is attached for the proponent’s reference. It is the responsibility of the prospective consultant to be familiar with and accept the terms of this standard contract. In some instances, contract provisions can be modified after review and approval of the City during final contract negotiations.
Overall, however, the provisions in this contract are those preferred by the City for the engagement of consulting services relating to this RFP. If any of the terms and conditions contained in the standard agreement are not agreeable, these should be identified specifically, otherwise it will be assumed that the Consultant is willing to enter into the agreement as it is written. Failure to identify contractual issues can be a basis for City to disqualify a consultant.
14 4. Insurance. Consultant shall, throughout the duration of the project, maintain comprehensive general liability and property insurance covering all operations of Consultant, its agents and employees, performed in connection with the project in the amounts and in the types of coverages shown in the sample professional services agreement.
5. Non-Discrimination/Non-Preferential Treatment. The successful Consultant shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of City contracts.
6. Rights to Submitted Materials. All proposals and related correspondence, reports, charges, s chedules, exhibits and other documentation submitted with the proposal will become the property of the City and a matter of public record. All documents submitted in response to this RFP will be subject to disclosure if requested by a member of the public.
There are a very limited number of narrow exceptions to these disclosure requirements.
Any information that a prospective consultant considers confidential, the disclosure of which would be an unwarranted invasion of personal privacy, should be submitted in a sealed envelope marked "CONFIDENTIAL; NOT PUBLIC RECORDS." During the selection process, the City will keep such information confidential and will not disclose it except as may be required under applicable law, including the California Public Records Act. This means that, depending on the nature or timing of the request, or future court decisions, that information may not remain private and may be publicly disclosed. Once the selection process is completed, the City will return this information to the Consultant if not selected. Budgets and cost proposals submitted by proposers shall not be considered confidential or proprietary and may be subject to disclosure.
7. Prohibition of Gifts. City staff and officials are subject to several legal and policy limitations regarding receipt of gifts from persons, firms, or corporations either engaged in business with the Agency, or proposing to do business with the City. The offering of any illegal gift shall be grounds to disqualify a Consultant. To avoid even the appearance of impropriety, Proponents and Selected Consultant should not offer any gifts or souvenirs, even of minimal value, to City officers or employees.
ATT ACHMENTS
1. City of Salinas Agreement for Professional Services Template
SELECTION TIMELINE
Proposal Due: March 28, 2022
Rating and Ranking of Proposals: March 29-April 1, 2022 Interviews with Finalists: April 4-8, 2022 (Optional)
Award of Contract: on or before April 11, 2022
15 Attachment 1 Agreement for Professional Services Template
AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SALINAS AND ______
This Agreement for Professional Services (the “Agreement” and/or “Contract”) is made and entered into this ____ day of ______, 2022, between the City of Salinas, a California Charter city and municipal corporation (hereinafter “City”), and __________, a _____________(hereinafter “Consultant”).
RECITALS
WHEREAS, Consultant represents that he, she, or it is specially trained, experienced, and competent to perform the special services which will be required by this Agreement; and
WHEREAS, Consultant is willing to render such professional services, as hereinafter defined, on the following terms and conditions.
NOW, THEREFORE, City and Consultant agree as follows:
TERMS
1.Scope of Service. The project contemplated and the scope of Consultant’s services are described in Exhibit B, attached hereto, and incorporated herein by reference.
2.Term; Completion Schedule. This Agreement shall commence on ______, and shall terminate on _______, unless extended in writing by either party upon (30) days written notice. This Agreement may be extended only upon mutual written consent of the parties, and may be terminated only pursuant to the terms of this Agreement.
3.Compensation. City hereby agrees to pay Consultant for services rendered the City pursuant to this Agreement on a time and materials basis according to the rates of compensation of [or as set forth in Exhibit B]. The total amount of compensation to be paid under this Agreement shall not exceed _________.
4.Billing. Consultant shall submit to City an itemized invoice, prepared in a form satisfactory to City, describing its services and costs for the period covered by the invoice. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant’s bills shall include the following information to which such services cost or pertain:
A. A brief description of services performed;
B. The date the services were performed;
C. The number of hours spent and by whom;
D. A brief description of any costs incurred; and
16 E. The Consultant’s signature.
Any such invoices shall be in full accord with any and all applicable provisions of this Agreement.
City shall make payment on each such invoice wit hin thirty (30) days of receipt; provided, however, that if Consultant submits an invoice which is incorrect, incomplete, or not in accord with the provisions of this Agreement, City shall not be obligated to process any payment to Consultant until thirty (30) days after a correct and complying invoice has been submitted by Consultant. The City shall process undisputed portion immediately.
5.Meet & Confer. Consultant agrees to meet and confer with City or its agents or employees with regard to services as set forth herein as may be required by the City to ensure timely and adequate performance of the Agreement.
6.Additional Copies. If City requires additional copies of reports, or any other material which Consultant is required to furnish as part of the services under this Agreement, Consultant shall provide such additional copies as are requested, and City shall compensate Consultant for the actual costs related to the production of such copies by Consultant.
7.Responsibility of Consultant. By executing this Agreement, Consultant agrees that the services to be provided and work to be performed under this Agreement shall be performed in a fully competent manner. By executing this Agreement, Consultant further agrees and represents to City that the Consultant possesses, or shall arrange to secure from others, all of the necessary professional capabilities, experience, resources, and facilities necessary to provide the City the services contemplated under this Agreement and that City relies upon the professional skills of Consultant to do and perform Consultant’s work. Consultant further agrees and represents that Consultant shall follow the current, generally accepted practices in this area to the profession to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding the projects for which the services are rendered under this Agreement.
8.Responsibility of City. To the extent appropriate to the projects to be completed by Consultant pursuant to this Agreement, City shall:
(A)Assist Consultant by placing at its disposal all available information pertinent to the projects, including but not limited to, previous reports and any other data relative to the projects. Nothing contained herein shall obligate City to incur any expense in connection with completion of studies or acquisition of information not otherwise in the possession of City.
(B)Examine all studies, reports, sketches, drawings, specifications, proposals, and other documents presented by Consultant, and render verbally or in writing as may be appropriate, decisions pertaining thereto within a reasonable time so as not to delay the services of Consultant.
(C)Megan Hunter, Community Development Director, or her designee, shall act as City’s representative with respect to the work to be performed under this Agreement. Such person shall have the complete authority to transmit instructions, r eceive information, interpret, and define 17 City’s policies and decisions with respect to materials, equipment, elements, and systems pertinent to Consultant’s services. City may unilaterally change its representative upon notice to the Consultant.
(D)Give prompt written notice to Consultant whenever City observes or otherwise becomes aware of any defect in a project.
9.Acceptance of Work Not a Release. Acceptance by the City of the work to be performed under this Agreement does not operate as a release of Consultant from professional responsibility for the work performed.
10.Indemnification and Hold Harmless.
Consultant shall defend, indemnify, and hold harmless the City and its officers, officials, employees, volunteers, and agents from and a gainst any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with Consultant’s performance of work hereunder, including the performance of work of any of Consultant’s subcontractors or agents, or Consultant’s failure to comply with any of its obligations contained in the agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the City.
11.Insurance. Consultant shall procure and maintain for the duration of this Agreement insurance meeting the requirements specified in Exhibit A hereto.
12.Access to Records. Consultant shall maintain all preparatory books, records, documents, accounting ledgers, and similar materials including but not limited to calculation and survey notes relating to work performed for the City under this Agreement on file for at least three (3) years following the date of final payment to Consultant by City. Any duly authorized representative(s) of City shall have access to such records for the purpose of inspection, audit, and copying at reasonable times during Consultant’s usual and customary business hours. Consultant shall provide proper facilities to City’s representative(s) for such access and inspection.
13.Non-Assignability. It is recognized by the parties hereto that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of Consultant. This Agreement is personal to Consultant and shall not be assigned by it without express written approval of the City.
14.Changes to Scope of Work. City may at any time, and upon a minimum of ten (10) days written notice, seek to modify the scope of services to be provided for any project to be completed under this Agreement. Consultant shall, upon receipt of said notice, determine the impact on both time and compensation of such change in scope and notify City in writing. Upon agreement between City and Consultant as to the extent of said impacts to time and compensation, an amendment to this Agreement shall be prepared describing such changes. Execution of the amendment by City and Consultant shall constitute the Consultant’s notice to proceed with the changed scope.
18 15.Ownership of Documents. Title to all final documents, including drawings, specifications, data, reports, summaries, correspondence, photographs, computer software (if purchased on the City’s behalf), video and audio tapes, software output, and any other materials with respect to work performed under this Agreement shall vest with City at such time as City has compensated Consultant, as provided herein, for the services rendered by Consultant in connection with which they were prepared. City agrees to hold harmless and indemnify the Consultant against all damages, claims, lawsuits, and losses of any kind including defense costs arising out of any use of said documents, drawings, and/or specifications on any other project without written authorization of the Consultant.
16.Termination.
A. City shall have the authority to terminate this Agreement, upon ten days written notice to Consultant, as follows:
1. If in the City’s opinion the conduct of the Consultant is such that the interest of the City may be impaired or prejudiced, or
2. For any reason whatsoever.
B. Upon termination, Consultant shall be entitled to payment of such amount as fairly compensates Consultant for all work satisfactorily performed up to the date of termination based upon the Consultant’s rates shown in Exhibit B and/or Section 3 of this Agreement, except that:
1. In the event of termination by the City for Consultant’s default, City shall deduct from the amount due Consultant the total amount of additional expenses incurred by City as a result of such default. Such deduction from amounts due Consultant are made to compensate City for its actual additional costs incurred in securing satisfactory performance of the terms of this Agreement, including but not limited to, costs of engaging another consultant(s) for such purposes. In the event that such additional expenses shall exceed amounts otherwise due and payable to Consultant hereunder, Consultant shall pay City the full amount of such expense.
C. In the event that this Agreement is terminated by City for any reason, Consultant shall:
1. Upon receipt of written notice of such termination promptly cease all services on this project, unless otherwise directed by City; and
2. Deliver to City all documents, data, reports, summaries, correspondence, photographs, computer software output, video and audio tapes, and any other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agree ment. Such material is to be delivered to City in completed form; however, notwithstanding the provisions of Section 15 herein, City may condition payment for services rendered to the date of termination upon Consultant’s delivery to the City of such material.
19 D. In the event that this Agreement is terminated by City for any reason, City is hereby expressly permitted to assume the projects and complete them by any means, including but not limited to, an agreement with another party.
E. The rights and remedy of the City and Consultant provided under this Section are not exclusive and are in addition to any other rights and remedies provided by law or appearing in any other section of this Agreement.
17.Compliance with Laws, Rules, and Regulations. Services performed by Consultant pursuant to this Agreement shall be performed in accordance and full compliance with all applicable federal, state, and City laws and any rules or regulations promulgated thereunder.
18.Exhibits Incorporated. All exhibits referred to in this Agreement and attached to it are hereby incorporated in it by this reference. In the event there is a conflict between any of the terms of this Agreement and any of the terms of any exhibit to the Agreement, the terms of the Agreement shall control the respective duties and liabilities of the parties.
19.Independent Contractor. It is expressly understood and agreed by both parties that Consultant, while engaged in carrying out and complying with any of the terms and conditions of this Agreement, is an independent contractor and not an employee of the City. Consultant expressly warrants not to represent, at any time or in any manner, that Consultant is an employee or servant of the City.
20.Integration and 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 contained herein. This Agreement may not be modified or altered except by amendment in writing signed by both parties.
21.Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, County of Monterey, and City of Salinas. Jurisdiction of litigation arising from this Agreement shall be in the State of California, in the County of Monterey or in the appropriate federal court with jurisdiction over the matter.
22.Severability. If any part of this Agreement is found to be in conflict with applicable laws, such part shall be inoperative, null and void insofar as it is in conflict with said laws, but the remainder of the Agreement shall continue to be in full force and effect.
23.Notices.
(A)Written notices to the City hereunder shall, until further notice by City, be addressed to:
Megan Hunter
City of Salinas
65 W. Alisal Street, Suite 201
Salinas, California 93901
20 With a copy to:
City Attorney
City of Salinas
200 Lincoln Avenue
Salinas, California 93901
(B)Written notices to the Consultant shall, until further notice by the Consultant, be addressed to:
[Contact Information for Consultant including Title, Address, Email, and Phone #]
(C)The execution of any such notices by the City Manager shall be effective as to Consultant as if it were by resolution or order of the City Council, and Consultant shall not question the authority of the City Manager to execute any such notice.
(D)All such notices shall either be delivered personally to the other party’s designee named above, or shall be deposited in the United States Mail, properly addressed as aforesaid, postage fully prepaid, and shall be effective the day following such deposit in the mail.
24.Nondiscrimination. During the performance of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, creed, sex, national origin, familial status, sexual orientation, age (over 40 years) or disability. Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, ancestry, creed, sex, national origin, familial status, sexual orientation, age (over 40 years) or disability.
25.Conflict of Interest. Consultant warrants and declares that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwis e, in any manner or degree which will render the services required under the provisions of this Agreement a violation of any applicable local, state or federal law. Consultant further declares that, in the performance of this Agreement, no subcontractor or person having such an interest shall be employed. In the event that any conflict of interest should nevertheless hereinafter arise, Consultant shall promptly notify City of the existence of such conflict of interest so that City may determine whether to terminate this Agreement. Consultant further warrants its compliance with the Political Reform Act (Government Code section 81000 et seq.) and Salinas City Code Chapter 2A that apply to Consultant as the result of Consultant’s performance of the work or services pursuant to the terms of this Agreement.
26.Headings. The section headings appearing herein shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
27.Attorneys’ Fees. In case suit shall be brought to interpret or to enforce this Agreement, or because of the breach of any other covenant or provision herein contained, the prevailing party in such action shall be entitled to recover their reasonable attorneys’ fees in addition to such costs as 21 may be allowed by the Court. City’s attorneys’ fees, if awarded, shall be calculated at the market rate.
28.Non-Exclusive Agreement. This Agreement is non- exclusive and both City and Consultant expressly reserves the right to contract with other entities for the same or similar services.
29.Rights and Obligations Under Agreement. By entering into this Agreement, the parties do not intend to create any obligations express or implied other than those set out herein; further, this Agreement shall not create any rights in any party not a signatory hereto.
30.Licenses. If a license of any kind, which term is intended to include evidence of registration, is required of Consultant, its representatives, agents or subcontractors by federal, state or local law, Consultant warrants that such license has been obtained, is valid and in good standing, and that any applicable bond posted in accordance with applicable laws and regulations.
31.Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement.
32.Legal Representation. Each party affirms that it has been represented, if it so chose, by legal counsel of its own choosing regarding the preparation and the negotiation of this Agreement and the matters and claims set forth herein, and that each of them has read this Agreement and is fully aware of its contents and its legal effect . Neither party is relying on any statement of the other party outside the terms set forth in this Agreement as an inducement to enter into this Agreement.
33.Joint Representation. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked.
34.Warranty of Authority. Each party represents and warrants that it has the right, power, and authority to enter into this Agreement. Each party further represents and warrants that it has given any and all notices, and obtained any and all consents, powers, and authorities, necessary to permit it, and the persons entering into this Agreement for it, to enter into this Agreement.
35.No Waiver of Rights. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. The failure to provide notice of any breach of this Agreement or failure to comply with any of the terms of this Agreement shall not constitute a waiver thereof. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. A waiver by the City of any one or more of the conditions of per formance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.
IN WITNESS WHEREOF , the parties hereto have made and executed this Agreement on the date first written above.
22 CITY OF SALINAS
____________________________
Kimbley Craig
Mayor
APPROVED AS TO FORM:
____________________________
Christopher A. Callihan
City Attorney
ATTEST:
_____________________________
Patricia Barajas
City Clerk
CONSULTANT
___________________________________
By (Printed Name): ___________________
Its (Title): ___________________________
Exhibit A
Insurance Requirements
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Consultant, his agents, representatives, employees, or subcontractors. With respect to General Liability and Professional Liability, coverage should be maintained for a minimum of five (5) years after Agreement completion.
23 MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
A. Commercial General Liability (“CGL”): Insurance Services Office Form (“ISO”) CG 00 01 covering CGL on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
B. Automobile Liability: ISO Form CA 0001 covering any auto, or if Consultant has no owned autos, hired and non-owned, with limits no less than $1,000,000 per accident for bodily injury and property damage.
C. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
D. Professional Liability (also known as Errors and Omissions) insurance appropriate to the work being performed, with limits no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate per policy period of one year.
If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City of Salinas requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
OTHER INSURANCE PROVISIONS
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City of Salinas, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85, or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this Agreement or the project described within this Agreement, the Consultant’s insurance coverage shall be primary coverage at least as broad as ISO Form CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. A ny insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
24 Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect 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.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Salinas for all work performed by the Consultant, its employees, agents, and subcontractors.
Self-Insured Retentions
Self-insured retentions must be declared by Consultant s and approved by the City. At the option of the City, Consultant shall provide coverage to reduce or eliminate such self -insured retentions as respects the City, its officers, officials, employees, and volunteers; or the consultant shall provide evidence satisfactory to the City guaranteeing payment of losses and related investigations, claim administrations, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown and must be before the date of this Agreement or the beginning of Agreement work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the Agreement of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effe ctive date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
Verification of Coverage
Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable insurance language effecting coverage required by this Agreement. All 25 certificates and endorsements are to be received and approved by t he City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required in surance policies, including endorsements required by these specifications, at any time.
Subcontractors
Consultant shall require and verify that all sub- consultants and/or subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that Entity is an additional insured on insurance required from such sub-consultants and/or subcontractors.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Maintenance of Insurance
Maintenance of insurance by Consultant as specified shall in no way be interpreted as relieving Consultant of its indemnification obligations or any responsibility whatsoever and the Consultant may carry, at its own expense, such additional insurance as it deems necessary.