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PROFESSIONAL CONSULTANT SERVICES AGREEMENT
Stradling Yocca Carlson &Rauth
Redevelopment Special Counsel Services
THIS PROFESSIONAL CONSULTANT SERVICES AGREEMENT ("Agreement") is
made and entered into this 26th day of April, 2011, ("Effective Date") by and between the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF GRAND TERRACE
("Agency"), a public entity, and STRADLING YOCCA CARLSON & RAUTH, a Professional
Corporation ("Consultant").
1. Scope of Services. Agency agrees to retain and does hereby retain Consultant and
Consultant agrees to provide the services more particularly described in Exhibit "A", "Scope of
Services, Project Schedule, and Fees", attached hereto and incorporated herein by reference. The
activities referenced in Exhibit"A" are also referred to herein as the "Project."
2. Term. This Agreement shall be effective on the date first written above unless
otherwise provided in Exhibit "A" and the Agreement shall remain in effect until June 30, 2012,
unless otherwise terminated pursuant to the provisions herein.
3. Compensation/Payment. Consultant shall perform the Services under Part 1 of
Exhibit A to this Agreement for the total sum not to exceed Twenty-Two Thousand Five
Hundred Dollars ($22,500.00) payable in accordance with the terms set forth in Exhibit "A";
remaining services, if any, as directed by the Agency, will be compensated in the manner set
forth in Part 2 of Exhibit A to this Agreement. Said payment shall be made in accordance with
Agency's usual accounting procedures upon receipt and approval of an itemized invoice setting
forth the services performed. The invoices shall be delivered to Agency at the address set forth in
Section 4 hereof.
4. Notices. Any notices required to be given hereunder shall be in writing and shall be
personally served or given by mail. Any notice given by mail shall be deemed given when
deposited in the United States Mail, certified and postage prepaid, addressed to the party to be
served as follows:
To Agency_ To Consultant:
Community Redevelopment Agency Stradling Yocca Carlson & Rauth
Attn: Joyce Powers Attn: Mark J. Huebsch
22795 Barton Road 660 Newport Center Drive, Suite 1600
Grand Terrace, California 92313 Newport Beach,CA 92660-6422
5. Prevailing Wage. If applicable, the Consultant and all subcontractors are required to
pay the general prevailing wage rates of per diem wages and overtime and holiday wages
determined by the Director of the Department of Industrial Relations under Section 1720 et seq.
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of the California Labor Code and implemented the City Council of the City of Grand Terrace.
The Director's determination is on file and open to inspection in the office of the City Clerk and
is referred to and made a part hereof; the wage rates therein ascertained, determined, and
specified are referred to and made a part hereof as though fully set forth herein.
6. Contract Administration. A designee of the Agency will be appointed to administer
this Agreement on behalf of the Agency and shall be referred to herein as Contract
Administrator.
7. Standard of Performance. While performing the Services, Consultant shall exercise
the reasonable professional care and skill customarily exercised by reputable members of
Consultant's profession practicing in the Metropolitan Southern California Area, and shall use
reasonable diligence and best judgment while exercising its professional skill and expertise.
8. Personnel. Consultant shall furnish all personnel necessary to perform the Services
and shall be responsible for their performance and compensation. Consultant recognizes that the
qualifications and experience of the personnel to be used are vital to professional and timely
completion of the Services. The key personnel listed in Exhibit "B" attached hereto and
incorporated herein by this reference and assigned to perform portions of the Services shall
remain assigned through completion of the Services, unless otherwise mutually agreed by the
parties in writing, or caused by hardship or resignation in which case substitutes shall be subject
to Agency approval.
9. Assignment and Subcontracting. Neither party shall transfer any right, interest, or
obligation in or under this Agreement to any other entity without prior written consent of the
other party. In any event,no assignment shall be made unless the assignee expressly assumes the
obligations of assignor under this Agreement, in a writing satisfactory to the parties. Consultant
shall not subcontract any portion of the work required by this Agreement without prior written
approval by the responsible Agency's Contract Administrator. Subcontracts, if any, shall contain
a provision making them subject to all provisions stipulated in this Agreement, including without
limitation, the insurance obligations set forth in Section 12. Consultant acknowledges that any
transfer of rights may require Agency Executive Director and/or City Council approval.
10. Independent Contractor. In the performance of this Agreement, Consultant, and
Consultant's employees, subcontractors and agents, shall act in an independent capacity as
independent contractors, and not as officers or employees of the City of Grand Terrace.
Consultant acknowledges and agrees that Agency has no obligation to pay or withhold state or
federal taxes or to provide workers' compensation or unemployment insurance to Consultant, or
to Consultant's employees, subcontractors and agents. Consultant, as an independent contractor,
shall be responsible for any and all taxes that apply to Consultant as an employer.
11. Indemnification.
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11.1 Indemnity. Consultant agrees to defend, indemnify and hold the Agency, its
officers, agents and employees harmless from any and all claims which arise from or are directly
connected with the Consultant's negligence or failure to perform the work or other obligations
under this Agreement, and all expenses of investigating and defending against same; provided,
however, that for any claim based upon the alleged errors or omissions of Consultant related to
the rendering of or the failure to render professional services hereunder this duty to defend,
indemnify, and hold harmless shall be limited to not to exceed the amount of Consultant's errors
and omissions insurance as required by this Agreement. Moreover, no indemnity obligation
shall arise for liabilities arising from the sole negligence or willful misconduct of the Agency and
City, its officers, agents, or employees. Consultant agrees to maintain errors and omissions
insurance in an amount not less than Twenty-Five Million Dollars ($25,000,000) per claim
period throughout the term of this Agreement.
11.2 Attorney's Fees. The parties expressly agree that any payment, attorneys' fees,
costs or expense that the Agency incurs or makes to or on behalf of an injured employee under
the Agency's self-administered workers' compensation is included as a loss, expense or cost for
the purposes of this Section, and that this Section shall survive the expiration or early termination
of the Agreement.
12. Insurance.
12.1 General Provisions. Prior to the Agency's execution of this Agreement, Consultant
shall provide satisfactory evidence of, and shall thereafter maintain during the term of this
Agreement, such insurance policies and coverages in the types, limits, forms and ratings required
herein. The rating and required insurance policies and coverages may be modified in writing by
the Agency's Risk Manager or Agency Attorney, or a designee, unless such modification is
prohibited by law.
12.1.1 Limitations. These minimum amounts of coverage shall not constitute any
limitation or cap on Consultant's indemnification obligations under Section 11 hereof.
12.1.2 Ratings. Any insurance policy or coverage provided by Consultant or
subcontractors as required by this Agreement shall be deemed inadequate and a material breach
of this Agreement, unless such policy or coverage is issued by insurance companies authorized
to transact insurance business in the State of California with a policy holder's rating of B+ or
higher and a Financial Class of VII or higher.
12.1.3 Cancellation. The policies shall not be canceled unless thirty (30) days prior
written notification of intended cancellation has been given to Agency by certified or registered
mail,postage prepaid.
12.1.4 Adequacy. The Agency, its officers, employees and agents make no
representation that the types or limits of insurance specified to be carried by Consultant pursuant
to this Agreement are adequate to protect Consultant. If Consultant believes that any required
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insurance coverage is inadequate, Consultant will obtain such additional insurance coverage as
Consultant deems adequate, at Consultant's sole expense.
12.2 Workers' Compensation Insurance: By executing this Agreement, Consultant
certifies that Consultant is aware of and will comply with Section 3700 of the Labor Code of the
State of California requiring every employer to be insured against liability for workers'
compensation, or to undertake self-insurance before commencing any of the work. Consultant
shall carry the insurance or provide for self-insurance required by California law to protect said
Consultant from claims under the Workers' Compensation Act. Prior to Agency's execution of
this Agreement, Consultant shall file with Agency either (1) a certificate of insurance showing
that such insurance is in effect, or that Consultant is self-insured for such coverage, or (2) a
certified statement that Consultant has no employees, and acknowledging that if Consultant does
employ any person,the necessary certificate of insurance will immediately be filed with Agency.
Any certificate filed with Agency shall provide that Agency will be given ten (10) days prior
written notice before modification or cancellation thereof.
12.3 Commercial General Liability and Automobile Insurance. Prior to Agency's
execution of this Agreement, Consultant shall obtain, and shall thereafter maintain during the
term of this Agreement, commercial general liability insurance and automobile liability
insurance as required to insure Consultant against damages for personal injury, including
accidental death, as well as from claims for property damage, which may arise from or which
may concern operations by anyone directly or indirectly employed by, connected with, or acting
for or on behalf of Consultant. The Agency, and its officers, employees and agents, shall be
named as additional insureds under the Consultant's insurance policies.
12.3.1 Consultant's commercial general liability insurance policy shall cover both bodily
injury (including death) and property damage (including, but not limited to, premises operations
liability, products-completed operations liability, independent Consultant's liability, personal
injury liability, and contractual liability) in an amount not less than $1,000,000 per occurrence
and a general aggregate limit in the amount of not less than $2,000,000.
12.3.2 Consultant's automobile liability policy shall cover both bodily injury and
property damage in an amount not less than $500,000 per occurrence and an aggregate limit of
not less than $1,000,000. All of Consultant's automobile and/or commercial general liability
insurance policies shall cover all vehicles used in connection with Consultant's performance of
this Agreement, which vehicles shall include, but are not limited to, Consultant owned vehicles,
Consultant leased vehicles, Consultant's employee vehicles, non-Consultant owned vehicles and
hired vehicles.
12.3.3 Prior to Agency's execution of this Agreement, copies of insurance policies or
original certificates and additional insured endorsements evidencing the coverage required by
this Agreement, for both commercial general and automobile liability insurance, shall be filed
with the Agency and shall include the Agency and its officers, employees and agents, as
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additional insureds. Said policies shall be in the usual form of commercial general and
automobile liability insurance policies, but shall include the following provisions:
It is agreed that the Community Redevelopment Agency and its officers,
employees and agents, are added as additional insureds under this policy, solely
for work done by and on behalf of the named insured for the Community
Redevelopment Agency.
12.4 Errors and Omissions Insurance. Prior to Agency's execution of this Agreement,
Consultant shall obtain, and shall thereafter maintain during the term of this Agreement, errors
and omissions professional liability insurance in the minimum amount of$1,000,000 to protect
the Agency from claims resulting from the Consultant's activities.
12.5 Subcontractors' Insurance. Consultant shall require all of its subcontractors to
carry insurance, in an amount sufficient to cover the risk of injury,damage or loss,which may be
caused by the subcontractors' scope of work and activities provided in furtherance of this
Agreement, including, but without limitation, the following coverages: Workers Compensation,
Commercial General Liability, Errors and Omissions, and Automobile liability. Upon Agency's
request, Consultant shall provide the Agency with satisfactory evidence that Subcontractors have
obtained insurance policies and coverages required by this section.
13. Business Tax. Consultant understands that the Services performed under this
Agreement constitutes doing business in the City of Grand Terrace, and Consultant agrees that
Consultant will register for and pay a business tax pursuant to Chapter 5.04 of the Grand Terrace
Municipal Code and keep such tax certificate current during the term of this Agreement.
14. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
15. Agency's Right to Employ Other Consultants. Agency reserves the right to
employ other Consultants in connection with the Project.
16. Accounting Records. Consultant shall maintain complete and accurate records with
respect to costs incurred under this Agreement. All such records shall be clearly identifiable.
Consultant shall allow a representative of Agency during normal business hours to examine,
audit, and make transcripts or copies of such records and any other documents created pursuant
to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of final
payment under this Agreement.
17. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings,
descriptions, computer program data, input record data, written information, and other materials
either created by or provided to Consultant in connection with the performance of this
Agreement shall be held confidential by Consultant, except as otherwise directed by Agency's
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Contract Administrator. Nothing furnished to Consultant which is otherwise known to the
Consultant or is generally known, or has become known, to the related industry shall be deemed
confidential. Consultant shall not use Agency's name or insignia, photographs of the Project, or
any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper,
television or radio production, website, or other similar medium without the prior written consent
of the Agency.
18. Ownership of Documents. All reports, maps, drawings and other contract
deliverables prepared under this Agreement by Consultant shall be and remain the property of
Agency upon Agency's compensation to Consultant for its services as herein provided.
Consultant shall not release to others information furnished by Agency without prior express
written approval of Agency.
19. Conflict of Interest. Consultant, for itself and on behalf of the individuals listed in
Exhibit `B", represents and warrants that by the execution of this Agreement, they have no
interest, present or contemplated, in the Project affected by the above-described Services.
Consultant further warrants that neither Consultant, nor the individuals listed in Exhibit`B" have
any real property, business interests or income interests that will be affected by this project or,
alternatively, that Consultant will file with the Agency an affidavit disclosing any such interest.
20. Solicitation. Consultant warrants that Consultant has not employed or retained any
person or Agency to solicit or secure this Agreement, nor has it entered into any agreement or
understanding for a commission, percentage, brokerage, or contingent fee to be paid to secure
this Agreement. For breach of this warranty, Agency shall have the right to terminate this
Agreement without liability and pay Consultant only for the value of work Consultant has
actually performed, or, in its sole discretion, to deduct from the Agreement price or otherwise
recover from Consultant the full amount of such commission, percentage, brokerage or
commission fee. The remedies specified in this section shall be in addition to and not in lieu of
those remedies otherwise specified in this Agreement.
21. General Compliance with Laws. Consultant shall keep fully informed of federal,
state and local laws and ordinances and regulations which in any manner affect those employed
by Consultant, or in any way affect the performance of services by Consultant pursuant to this
Agreement. Consultant shall at all times observe and comply with all such laws, ordinances and
regulations, and shall be solely responsible for any failure to comply with all applicable laws,
ordinances and regulations.
22. Amendments. This Agreement may be modified or amended only by a written
Agreement and/or change order executed by the Consultant and Agency.
23. Termination. Agency, by notifying Consultant in writing, shall have the right to
terminate any or all of Consultant's services and work covered by this Agreement at any time. In
the event of such termination, Consultant may submit Consultant's final written statement of the
amount of Consultant's services as of the date of such termination based upon the ratio that the
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work completed bears to the total work required to make the report complete, subject to the
Agency's rights under Sections 15 and 24 hereof. In ascertaining the work actually rendered
through the termination date, Agency shall consider completed work, work in progress and
complete and incomplete reports and other documents only after delivered to Agency.
23.1 Other than as stated below, Agency shall give Consultant thirty (30) days prior
written notice prior to termination.
23.2 Agency may terminate this Agreement upon fifteen (15) days written notice to
Consultant,in the event:
23.2.1 Consultant substantially fails to perform or materially breaches the Agreement; or
23.2.2 Agency decides to abandon or postpone the Project.
24. Offsets. Consultant acknowledges and agrees that with respect to any business tax or
penalties thereon, utility charges, invoiced fee or other debt which Consultant owes or may owe
to the Agency, Agency reserves the right to withhold and offset said amounts from payments or
refunds or reimbursements owed by Agency to Consultant. Notice of such withholding and offset
shall promptly be given to Consultant by Agency in writing. In the event of a dispute as to the
amount owed or whether such amount is owed to the Agency, Agency will hold such disputed
amount until either the appropriate appeal process has been completed or until the dispute has
been resolved.
25. Successors and Assigns. This Agreement shall be binding upon Agency and its
successors and assigns, and upon Consultant and its permitted successors and assigns, and shall
not be assigned by Consultant, either in whole or in part, except as otherwise provided in
paragraph 9 of this Agreement.
26. Venue and Attorneys' Fees. Any action at law or in equity brought by either of the
parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall
be tried in a court of competent jurisdiction in the County of San Bernardino, State of California,
and the parties hereby waive all provisions of law providing for a change of venue in such
proceedings to any other county. In the event either party hereto shall bring suit to enforce any
term of this Agreement or to recover any damages for and on account of the breach of any term
or condition of this Agreement, it is mutually agreed that the prevailing party in such action shall
recover all costs thereof, including reasonable attorneys' fees, to be set by the court in such
action.
27. Nondiscrimination. During Consultant's performance of this Agreement, Consultant
shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry,
age, physical disability, mental disability, medical condition, including the medical condition of
Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status,
sex, or sexual orientation, in the selection and retention of employees and subcontractors and the
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procurement of materials and equipment, except as provided in Section 12940 of the California
Government Code. Further, Consultant agrees to conform to the requirements of the Americans
with Disabilities Act in the performance of this Agreement.
28. Severability. Each provision, term, condition, covenant and/or restriction, in whole
and in part, of this Agreement shall be considered severable. In the event any provision, term,
condition, covenant and/or restriction, in whole and/or in part, of this Agreement is declared
invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed
from this Agreement and shall not affect any other provision, term, condition, covenant and/or
restriction of this Agreement,and the remainder of the Agreement shall continue in full force and
effect.
29. Authority: The individuals executing this Agreement and the instruments referenced
herein on behalf of Consultant each represent and warrant that they have the legal power, right
and actual authority to bind Consultant to the terms and conditions hereof and thereof.
30. Entire Agreement: This Agreement constitutes the final, complete, and exclusive
statement of the terms of the agreement between the parties pertaining to the subject matter of
this Agreement, and supersedes all prior and contemporaneous understandings or agreements of
the parties. Neither party has been induced to enter into this Agreement by, and neither party is
relying on, any representation or warranty outside those expressly set forth in this Agreement.
31. Interpretation. Agency and Consultant acknowledge and agree that this Agreement
is the product of mutual arms-length negotiations and accordingly, the rule of construction,
which provides that the ambiguities in a document shall be construed against the drafter of that
document, shall have no application to the interpretation and enforcement of this Agreement.
31.1 Titles and captions are for convenience of reference only and do not define,
describe or limit the scope or the intent of the Agreement or any of its terms. Reference to
section numbers are to sections in the Agreement unless expressly stated otherwise.
31.2 This Agreement shall be governed by and construed in accordance with the laws
of the State of California in effect at the time of the execution of this Agreement.
31.3 In the event of a conflict between the body of this Agreement and Exhibit "A"
hereto, the terms contained in Exhibit"A" shall be controlling.
32. Exhibits. The following exhibits attached hereto are incorporated herein to this
Agreement by this reference:
Exhibit"A"- Scope of Services, Project Schedule, and Fees
Exhibit"B" - Personnel
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IN WITNESS WHEREOF Agency and Consultant have caused this Agreement to be
duly executed the day and year first above written.
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF GRAND
TERRACE,
A Public Entity
By:
Be M. A ams
Agency Executive Director
and City Manager
Attest: Jj ''(p� ��i wow_
Agency Secretary/City Clerk
Stradling Yocca Carlson& Raut a
Pro na ora on
By:
Mark J. Huebsch
Shareholder
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EXHIBIT"A"
SCOPE OF SERVICES, PROJECT SCHEDULE, AND FEES
Part 1:
1. Review historical agreements and Redevelopment Plans that affect the Agency's
ability to incur new debt; confer and consult with Agency staff and representative of
RSG,the consulting firm retained by Agency in relation to evaluation of tax increment
for Agency. Provide recommendations upon request from the Executive Director; such
recommendations to be in writing if so requested by Executive Director.
2. Review all fiscal reports, prepared by RSG or other advisers designated by Agency,
affecting the Agency's ability to incur new debt and provide recommendations upon
request.
3. Upon consultation with Agency staff and RSG(or other advisers designated by
Agency), develop options for Agency borrowing and, upon request therefor, prepare a
discussion of advantages and disadvantages of each option. Provide a recommendation
that best meets the goals of the Agency in consultation with staff to be presented to the
Agency Board for direction.
4. Items 1-3 will be completed within 30 days of receipt by Consultant of the
documents listed in items 1-3, above,following the Agency's approval of the Professional
Services Agreement. The hourly rate for the services referenced above will be within the
range of$250-325 per hour(the latter for work performed by shareholders), not to exceed
$22,500(75 hours at$300 per hour).
Part 2:
1. If, at its election,the Agency determines to issue bonds,Consultant will:
Pursue Agency issuance of bonds and complete the preparation of documents necessary
for the issuance of such bonds, including the delivery of customary legal opinions,
associated therewith. Fees for Consultant in connection with such services would be
based upon the total principal amount of each issue of the bonds authorized and sold,
computed in accordance with the following schedule:
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Total Principal
Amount of Bonds Sold Fee
$5,000,000 or less $35,000 plus .25 of 1%of the excess over
$1,000,000
$5,000,001 to$10,000,000 $45,000 plus .20 of 1% of the amount over
$5,000,000
$10,000,001 or more $55,000 plus .15 of 1%of the amount over
$10,000,000
In connection with preparation of an official statement or similar offering memorandum,
Consultant would be paid an amount equal to 60% of the amount determined under the
schedule set forth above, but not less than $35,000. The Agency is not, by executing this
Agreement for Services, obligating itself to proceed with the issuance of bonds. If the
Agency does elect, at its discretion, to proceed with the issuance of bonds, the
proceedings with respect to the financing will be drafted so that the above scheduled fees
under this Part 2 will be paid from the proceeds of the Bonds. In the event that the
financing is not completed for any reason, the Agency will have no liability for any fees
incurred by our firm with respect to the financing as set forth in Part B. In addition to the
above fees, Consultant would be reimbursed at closing for Consultant's estimated out of
pocket expenses, as reviewed by Agency staff, including travel at the request of the
Agency, telecommunications charges and document production and reproduction (at the
usual rates charged by the firm), outside messenger service and similar items; provided
that such out of pocket expenses would be subject to a not-to-exceed cap of$4,000; or,
2. Negotiate and prepare required documents to obtain alternative Agency financing
for future project costs. Charges in connection with this Section 2 are to be based upon
the rates set forth under item 4 of Part 1, above. The Agency reserves the right to
evaluate this work and legal costs prior to directing that this work proceed; or,
3. Other combination of financing,only as directed by the Agency. Charges in
connection with this Section 3 are to be based upon the rates set forth under item 4 of Part
1,above.
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EXHIBIT "B"
PERSONNEL
David R. McEwen and Mark J. Huebsch,will be the primary attorneys providing the
services. Each of Mark J. Huebsch and David R. McEwen is a shareholder with
Consultant. If they utilize the services of other attorneys,the hourly rates will be within
the range of hourly rates set forth in Part 1 of Exhibit"A". Consultant anticipates that a
preponderance of the work performed by attorneys of Consultant under this Agreement
will be performed by David R. McEwen and Mark J. Huebsch. If bonds are issued,the
services of senior tax counsel of Consultant will also be utilized, along with customary
assistance by paralegals under the direction of David R. McEwen and Mark J. Huebsch.
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