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HomeMy WebLinkAbout050508 Eng and Tech Serv Agmt with Edward Henning and AssocREQUEST FOR AGENCY ACTION AGENCY BOARD MEETING DATE: MAY 5, 2008 TITLE: ENGINEERING /TECHNICAL SERVICES AGREEMENT WITH EDWARD HENNING & ASSOCIATES EXECUTIVE DIRECTOR RECOMMENDED ACTION AGENCY SECRETARY USE ONLY: APPROVED Z As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the Executive Director and Agency Secretary to execute the attached agreement with Edward Henning & Associates for engineering /technical services in the amount not to exceed $24,500, subject to non - substantive changes approved by the Executive Director and Agency General Counsel. DISCUSSION A tenant -based Business Improvement District (BID) was formed in Downtown Santa Ana in 1984 under the State - enabling statute at the time entitled, The Parking and Business Improvement Area Law of 1979, (later amended and renamed The Parking and Business Improvement Area law of 1989). This district, by its assessment nature, has served business owner interests over the years, but has not included the participation of a representative cross- section of property owners. Based on a need to involve property owners in the long -term development strategy and stakeholder management of Downtown Santa Ana, the City is pursuing the formation of a Downtown Management District. The purpose of the district will be to provide and manage supplemental services and improvements for this important business center, including a Clean and Safe program, a professional marketing and business promotion program, and installing and upgrading physical amenities through the downtown. The Downtown Santa Ana Management District will be a benefit assessment district that will enable the Downtown property owners to work as a unit to fund needed property- related improvement programs and projects above that which is provided by the City of Santa Ana on a regular basis. 5 -25 Agreement with Edward Henning and Associates May 5, 2008 Page 2 The Downtown property owners are taking the lead in coordinating the formation of the Downtown Management District with the support of the Agency. At this time, the Community Redevelopment Agency is engaging the consulting services of a professional engineer to provide numerous technical, engineering and procedural services related to Management District formation, Business Improvement Area disestablishment, and to provide the mandatory Proposition 218 Assessment Engineering District certification. The engineer will work closely with the property owners and Agency staff to advise as needed, and to ensure compliance with all required State statutes in the formation of a Management District. A public notice was issued on February 11, 2008, requesting proposal for qualified engineering /technical services for the formation of a Management District. Three proposals were submitted, Edward Henning & Associates, Kristin Lowell Inc. and MuniFinancial. The proposals were evaluated by staff from the Finance and Management Services Agency and the Community Development Agency. Based on the evaluation criteria, Edward Henning & Associates was selected as the most responsive proposal. Edward Henning & Associates has quoted a fee not to exceed $24,500. FISCAL IMPACT Funds are budgeted and available, for an amount not to exceed $24,500, in the City's Merged Economic Development fund account (account no. 570 -932- 6291). Nancy T. dwards Francisco Gutierrez Assistant Director Executive Director Community Development Agency Finance & Management Services Agency SGH /FH /mlr 050508 AgxeeEnginTechSvc- Henning 5 -26 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 51h day of May, 2008, by and between Edward Henning & Associates, a sole proprietorship (hereinafter "Consultant "), and the Community Redevelopment Agency of the City of Santa Ana, a public body corporate and politic (hereinafter "Agency "). RECITALS A. The Agency desires to retain a qualified consulting engineering firm with a proven track record of providing assessment engineering services. B. Consultant represents that Consultant is able and willing to provide such services to the Agency. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall provide professional assessment engineering and related services for creation of a Management District as set forth in the Scope of Services attached hereto as Exhibit A, and incorporated by reference. 2. DELIVERY OF WORK PRODUCT Consultant shall deliver to Agency any work product which results from the services provided. In regard to all copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, and drawings, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material may not be copyrighted without prior review from the Agency, and (b) the authors of all such material, whether copyrighted or not, award to the Agency, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty -free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 5 -127 3. COMPENSATION a. Consultant shall be compensated at the rate of $125.00 per hour for the services set forth in the Scope of Work. Total fees payable for the Scope of Services shall not exceed $29,400 during the term of this Agreement. b. Payment by Agency shall be made within thirty (30) days following receipt of proper invoice including a detailed breakdown of the services and tasks performed, hours and hourly rates related to performance of those services and tasks, subject to Agency accounting procedures. c. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by Agency. In the event that the Agency disputes a portion of Consultant's invoice, any sums not in dispute shall be remitted to Consultant. 4. TERM This Agreement shall commence on the date first written above and terminate on final adoption and implementation of the Management District, unless terminated earlier in accordance with Section 13, below. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the Agency. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the Agency to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: .5'22$ a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the Agency, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply Agency with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement and shall be approved in form by the Agency General Counsel. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the Agency upon execution of this Agreement and shall be approved in form by the Agency General Counsel. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the Agency. f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the Agency with required proof that insurance has been procured and is in force and paid for, the Agency shall have the right, at the Agency's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination 5 -5 29 INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the Agency, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect negligent performance of services of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the Agency, including fees and costs for special counsel to be selected by the Agency, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of, or effects arising from this Agreement. Agency may make all reasonable decisions with respect to its representation in any legal proceeding. 8. CONFIDENTIALITY If Consultant receives from the Agency information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the Agency. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any mariner with performance of services specified under this Agreement. 5-430 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To Agency: Secretary Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, California 92702 -1988 telefacsimile (714) 647 -6956 With courtesy copies to: Executive Director and Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza (M -25) P.O. Box 1988 Santa Ana, California 92702 -1988 telefacsimile (714) 647 -5635 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 To Consultant: Edward Henning & Associates 13330 Buttermore Road Phelan, California 92371 A party may change its address by giving notice in writing to the other party. Thereafter, communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the Agency and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may 5-131 not be modified except by written instrument signed by the Agency and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the Agency. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the Agency and any such assignment, transfer, delegation or subcontract without the Agency's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the Agency's ability to have any of the services which are the subject to this Agreement performed by Agency personnel or by other consultants retained by Agency. 13. TERMINATION This Agreement may be terminated by the Agency upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the Agency shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the Agency all work product completed as of such date, and in such case such work product shall be the property of the Agency unless prohibited by law, and Consultant consents to the Agency's use thereof for such purposes as the Agency deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION -VENUE 5 -6 32 This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the Agency immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Agency fully, including reasonable costs and attorney's fees, for any injuries or damages to Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. [Remainder ofpage intentionally blank] 5 -733 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: COMMUNITY RE, DEVELOPPMENT AGENCY OF CITY OF SANTA ANA: PATRICIA E. HEALY Stephen G. Harding Secretary Executive Director APPROVED AS TO FORM: JOSEPH W.FLETCHER Agency Counsel EDWARD HENNING & ASSOCIATES Name: Title: 5 -8 34 EXHIBIT A SCOPE OF SERVICES SCOPE OF WORK Phase 1 — Development /Assessment Engineering Report Boundaries /Property Data — estimated 60 hours a. Review district boundary and benefit zone options. b. Select "working" Management District and zone boundaries. c. Refine /update /manage property database for selected area. 2. Assessment Formula — estimated 40 hours a. Development assessment formula options. b. Identify assessment differentials, step- downs /step -ups, exemptions/ inclusions. c. Estimate revenues from various options. d. Provide sample assessment calculations. e. Develop /select formula that produces most equitable assessment rates at desired revenue level. 3. Legal Document Preparation — estimated 48 hours a. Coordinate base -level services agreement/MOU. b. Review /approve final district management plan. c. Prepare Proposition 218 Engineer's Report d. Prepare support petition package. e. Prepare Proposition 218 ballots for mailing. f Prepare district formation draft legal documents for City Attorney review. g. Coordinate preparation of assessment map and tax roll for recordation. Phase 2 — Adoption - estimated 52 hours 1. Coordinate adoption with City Clerk, City Attorney and Downtown Office. 2. Assist with Proposition 218 ballot procedure. 3. Attend public hearing; facilitate presentation and approval as needed. 4. Coordinate structuring /approval of fund management agreement. 5. Coordinate recordation of map and notice. 6. Coordinate with County /City for collection. 5­935 THIS PAGE LEFT INTENTIONALLY BLANK 5 -36