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HomeMy WebLinkAboutContracts & Agreements_123-2010_CCv0001.pdf AGREEMENT TO REVIEW THE REDLANDS COUNTRY CLUB NONPOTABLE NATER RATE This agreement for a review of the Redlands Country Club Nonpotable Water Rate ("Agreement's is made and entered into this 11th day of August, 2010 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City's and David Taussig & Associates ("Consultant"). City and Consultant are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, City and Consultant agree as follows: ARTICLE 1 - ENGAGEMENT OF CONSULTANT 1.1 City hereby engages Consultant to review City's Nonpotable Water Rate applicable to the Redlands County Club (the "Services"). 1.2 The Services shall be performed by Consultant in a professional manner, and Consultant represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional consultants in the industry providing like and similar types of Services. ARTICLE.. 2- SERVICES OF CONSULTANT 2.1 The Services that Consultant shall perform are more particularly described in Exhibit "A" entitled "Scope of Services,"which is attached hereto and incorporated herein by reference. 2.2 Consultant shall comply with applicable federal, state and local laws and regulations in the performance of this Agreement including,but not limited to, the Americans with Disabilities Act, the Fair Employment and Housing Act and prevailing wage laws. ARTICLE 3 - RESPONSIBILITIES OF CITY 3.1 City shall make available to Consultant information in its possession that may assist Consultant in performing the Services. 3.2 City designates Mr. Chris Diggs as City's representative with respect to performance of the Services, and such person shall have the authority to transmit instructions, receive information,interpret and define City's policies and decisions with respect to performance of the Services. ARTICLE 4- PERFORMANCE OF SERVICES 4.1 Consultant shall perform the Services in a prompt and diligent manner and in accordance with the schedule set forth in Exhibit "B," entitled "Project Schedule." 4.2 During the term of this Agreement,City may request that Consultant perform Extra Services. As used herein, "Extra Services"means any work that is determined necessary by City for the proper completion of the project or work for which the Services are being performed,but which the Parties did not reasonably anticipate would be necessary at the time of execution of this Agreement. Provided the Extra Services do not exceed twenty percent (20%) of the compensation to be paid by City to Consultant for the Services, such IS Extra Services may be agreed to by the Parties by written amendment to this Agreement, executed by the City Manager,or duly authorized city official. Consultant shall not perform, nor be compensated for,Extra Services without such written authorization from City. ARTICLE 5 - PAYMENTS TO CONSULTANT 5.1 The total compensation for Consultant's performance of the Services shall not exceed the amount of Five Thousand Seven Hundred Fifty Dollars ($5,750.00). City shall pay Consultant on a time and materials basis up to the not to exceed amount,in accordance with Exhibit"C" entitled"Project Costs,"and based upon the hourly rates shown in Exhibit"D,"entitled"Rate Schedule." Both Exhibits "C" and "D" are attached hereto and incorporated herein by this reference. 5.2 Consultant shall submit monthly invoices to City describing the work performed during the preceding month. Consultant's invoices shall include a brief description of the Services performed,the dates the Services were performed, the number of hours spent and by whom, c and a description of reimbursable expenses related to the project.City shall pay Consultant no l later than thirty (30) days after receipt and approval by City of Consultant's invoice. 5.3 All notices shall be given in writing by personal delivery or by mail. Notices sent by mail should be addressed as follows: City Consultant Chris Diggs David Taussig Municipal Utilities and Engineering Dept. 5000 Birch Street,Suite 6000 City of Redlands Newport Beach, CA 92660 35 Cajon Street, Suite 15A PO Box 3005 (mailing) Redlands,CA 92373 When so addressed, such notices shall be deemed given upon deposit in the United States Mail. Changes may be made in the names and addresses of the person to whom notices and payments are to be given by giving notice pursuant to this section 5.3. ARTICLE 6 INSURANCE AND INDEMNIFICATION 6.1 Insurance. Insurance required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services. Consultant shall not perform any Services unless and until required insurance listed below is obtained by Consultant. Consultant shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days'prior written notice to City,except for ten (10) days notice for cancellation due to non-payment of premium. 6.2 Hold Harmless and Indemnification. Consultant shall defend,indemnify and hold harmless City and its elected officials,employees and agents from and against any and all claims,losses or liability,including attorneys' fees,arising from injury or death to persons or damage to property occasioned by and negligent act,omission or failure to act by Consultant,its officers, employees and agents in performing the Services. 6.3 Comprehensive General Lability Insurance. Consultant shall secure and maintain in force throughout the term of this Agreement comprehensive general liability insurance with carriers acceptable to City. Minimum coverage of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate for public liability,property damage and personal injury is required. City shall be named as an additional insured and the insurance policy shall include a provision prohibiting modification of coverage limits or cancellation of the policy except upon thirty (30) days prior written notice to City. Such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. Certificates of insurance shall be delivered to City prior to commencement of the Services. ARTICLE 7- CONFLICTS OF INTEREST 7.1 Consultant covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected in any manner or degree by the performance of Consultant's Services. Consultant further covenants and represents that in the performance of its duties hereunder,no person having any such interest shall perform any Services under this Agreement. 7.2 Consultant agrees it is not a designated employee within the meaning of the Political Reform Act because Consultant: A. Does not make or participate in: (i) the making or any City governmental decisions regarding approval of a rate, rule or regulation, or the adoption or enforcement of laws; (ii) the issuance,denial, suspension or revocation of the City permits,licenses, applications, certifications,approvals,orders or similar authorizations or entitlements; (iii) authorizing City to enter into,modify or renew a contract; (iv) granting City approval to a contract that requires City approval and to which.City is a party, or to the specifications for such a contract; (v) granting City approval to a plan,design,report, study or similar item; (vi) adopting, or granting City approval of,policies, standards or guidelines for City or for any subdivision thereof. B. Does not serve in a staff capacity with City and in that capacity,participate in making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302. 7.3 In the event City officially determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. Consultant shall file the subject Form 700 with the City Clerk's office pursuant to the written instructions provided by the Office of the City Clerk. ARTICLE 8 - GENERAL CONSIDERATIONS 8.1 Attorneys'Fees. In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall,in addition to any costs and other relief,be entitled to the recovery of its reasonable attorneys' fees,including fees for the use of in-house counsel by a Party. 8.2 Prohibition Against Assignment. Consultant shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms, and conditions of this Agreement. 8.3 Documents and Records. Project related documents, records,drawings,designs, cost estimates,electronic data files,databases and any other documents developed by Consultant in connection with its performance of the Services,and any copyright interest in such documents, shall become the property of City and shall be delivered to City upon completion of the Services,or upon the request of City. Any reuse of such documents, and any use of incomplete documents, shall be at City's sole risk. Notwithstanding the above, all computer financial models including,without limitation, compilations of formulas and spreadsheet models used or developed by Consultant in performing its work are proprietary and shall remain property owned solely by Consultant;provided, however,that City shall have no liability to Consultant for the disclosure,as permitted or required by law,of any such computer financial and spreadsheet models. 8.4 Independent Contractor Status. Consultant is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor. Neither City nor of its agents shall have control over the conduct of Consultant or Consultant's employees,except as herein set forth. Consultant shall supply necessary tools and instrumentalities required to perform the Services.Assigned personnel employed by Consultant are for its account only,and in no event shall Consultant or personnel retained by it be deemed to have been employed by City or engaged by City for the account of,or on behalf of City. Consultant shall have no authority,express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied,to bind City to any obligation. 8.5 Termination. A. Unless earlier terminated as provided for below, this Agreement shall terminate upon completion and acceptance of the Services by City. B.This Agreement may be terminated by City,in its sole discretion,by providing thirty (30) days' prior written notice to Consultant (delivered by certified mail, return receipt requested) of City's intent to terminate. C. If this Agreement is terminated by City,an adjustment to Consultant's compensation shall be made,but (1) no amount shall be allowed for anticipated profit or unperformed Services, and (2) any payment due Consultant at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by Consultant. D. Upon receipt of a termination notice, Consultant shall immediately discontinue its provision of the Services and,within five (5) days of the date of the termination notice, deliver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data,design calculations,drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing the Services. Consultant shall be compensated on a pro-rata basis for Services completed up to the date of termination. 8.6 Books and Records. Consultant shall maintain books, ledgers,invoices, accounts and other records and documents evidencing costs and expenses related to the Services for a period of three (3) years,or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement. Such books shall be available at reasonable times for examination by City at the office of Consultant. 8.7 Entire Agreement/Amendment, This Agreement,including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations,written proposals or verbal agreements relating to such matters are superseded by this Agreement. Except as otherwise provided for herein, an amendment to this Agreement shall be in writing, approved by City and signed by City and Consultant. 8.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 8.9 Severability. If one or more of the sentences, clauses, paragraphs or sections contained in this Agreement is declared invalid,void or unenforceable by a court of competent Jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect,impair or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement. �C IN WITNESS WHEREOF, duly authorized representatives of the Ci and Cons in confirmation of this Agreement. t5 Consultant have sign CITY OF REDLANDS DAVID TAUSSIG 4 Tina Kundig, Finance Director`s; Y: f '�`� David Taussig, Pr nt Attest: City Clerk EXHIBIT "A" SCOPE OF SERVICES City of Redlands Non-Potable Water Facilities Rate Reduction and Reimbursement Analysis The scope of work and schedule below consists of four major tasks. Consultant understands that the final product for this engagement with the City is to provide a memorandum describing and evaluating several different methods of reimbursing the Redlands Country Club ("RCC") for constructing improvements to the non-potable water system.This memorandum will include an analysis of the City's rate reduction proposal,the rate reduction proposal prepared by RCC,and several alternative scenarios proposed by Consultant.The objective of this analysis is to develop an equitable reimbursement strategy that is satisfactory to both the City and RCC and compliant with all relevant laws,including Proposition 218. SCOPE OF WORK TASK NO 1—BACKGROUND RESEARCH Consultant will review the RCC's proposal entitled "Redlands Country Club Nonpotable Water Cost Reduction Requirements"along with any related documentation,such as annual cost summaries,potable and non-potable water rate studies, and water usage history. Based on the information provided and prior experience,Consultant will determine whether the proposal describes a fair and equitable method of reimbursing RCC for the cost of improvements to the non-potable water system. TASK NO. 2—DEVELOP ALTERNATIVES Based on the review conducted in Task No. 1 and discussions with.City staff,Consultant will propose alternative reimbursement scenarios. S btask 21 —Non-Potable Water Cost Reduction Scenarios If necessary, Consultant will modify the assumptions in the RCC proposal to generate one or more alternative reimbursement scenarios.The alternative scenarios will be designed to better satisfy the City's goals and existing laws. Modified assumptions may include the following: • Types of reimbursable costs • Discount rate • Payback period • Usage rates • Future potable and non-potable water rates Subtask 2.2—Cash Payment Reimbursement Scenario As an alternative to reducing the cost of non-potable water to RCC, Consultant will propose one or more scenarios that involve a stream of payments from sewer and water revenues to reimburse RCC for improvement costs. These cash payment scenarios may be a preferable alternative to the cost reductions scenarios developed in Subtask 2.1 above. The assumptions that vary between these scenarios may include the following: • Types of reimbursable costs • Payback period Discount/reinvestment rate TASK N0. 3—PREPARE MEMORANDUM SUMMARIZING RESULTS AND 1 RECOMMENDATIONS Consultant shall prepare a memorandum summarizing its findings and the results of the analysis. The memorandum will describe the impact of each reimbursement scenario on the City and RCC and summarize the advantages and disadvantages. The memorandum will describe the risks and benefits of each scenario so that the City may choose the best repayment option. The numerical analyses completed in Task 2 for each scenario will be included in the memorandum as appendices. TASK NO. 4—ATTEND MEETING This task entails attendance at one meeting and participation in one conference call with City staff and/or the stakeholders to discuss the memorandum and the alternatives presented therein. Any additional meetings or conference calls will be considered Additional Work. EXHIBIT "B" PROJECT SCHEDULE The duration for the Project is 30 calendar days. EXHIBIT "C" I PROJECT COSTS Consultant shall be remunerated for consulting services on an hourly basis according to the rates set forth in Exhibit"D",with invoices being submitted to City on a monthly basis. Consultant shall perform tasks listed under Exhibit"A" - Scope of Services, as requested by City, until fees equal $5,750 (including expenses). Consultant shall notify City if and when services charges approach $5,750 to obtain written consent for additional fees to continue work. Alternatively, if the selected tasks can be completed for less than the maximum amount, only the hours actually expended will be billed, EXHIBIT "D" RATE SCHEDULE Associates, 2010 Fee Schedule President $275/Hour Vice President $22o/Hour Manager $20o/Hour Senior Associate $i8o/Hour Associate $165/Hour Senior Analyst $15o/Hour Financial Analyst $125/Hour Research Assistant $loo/Hour Out-of-pocket and administrative expenses equal to 3%of Consultant's billings for labor,plus clerical time @ $75 per hour and any outside vendor payments, not to exceed a total of$500, are included within the not to exceed amount identified above. All hourly rates for services apply through December 31, 2010 and are subject to a cost-of-living increase at that time.