HomeMy WebLinkAboutContracts & Agreements_202-2022AGREEMENT TO PERFORM PROFESSIONAL SERVICES
This agreement for the provision of development of an Inclusionary Housing program
("Agreement") is made and entered in this 4th day of October 2022 ("Effective Date"), by and
between the City of Redlands, a municipal corporation ("City") and Keyser Marston Associates,
Inc., a California corporation ("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 provide financial evaluation services for City (the
"Services").
12 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,"
titled "Scope of Services," which is attached hereto and incorporated herein by this
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, any applicable State
prevailing wage laws.
ARTICLE 3 —RESPONSIBILITIES OF CITY
3.1 City designates Brian Desatnik, Development Services Director, 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 and complete the Services in a prompt and diligent manner in
accordance with the schedule set forth in Exhibit `B," titled "Project Schedule," which is
attached hereto and incorporated herein by reference.
4.2 Consultant shall complete the Services by December 31, 2022, unless the Services are
terminated earlier as provided for herein.
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4.3 If Consultant's Services include deliverable electronic visual presentation materials, such
materials shall be delivered in a form, and made available to City, consistent with City
Council -adopted policy for the same. It shall be the obligation of Consultant to obtain a
copy of such policy from City staff.
ARTICLE 5 — PAYMENTS TO CONSULTANT
5.1 Total compensation for Consultant's performance of the Services shall not exceed the
amount of fifty thousand four hundred dollars ($50,400). City shall pay Consultant on a
time and materials basis up to the not to exceed amount in accordance with Exhibit "C,"
titled ("Fee Schedule Title") which is attached hereto and incorporated herein by
reference.
52 Consultant shall submit monthly invoices to City describing the Services 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,
and a description of reimbursable expenses related to the Services. City shall pay
Consultant no later than thirty (30) days after receipt and approval by City of Consultant's
invoice.
53 Any notice or other communication required, or which may be given, pursuant to this
Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date
of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return
receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or
(iv) on the date sent by facsimile or electronic mail transmission (including PDF), if
confirmed with a copy sent contemporaneously by first class, certified, registered or
express mail; in each case properly posted and fully prepaid to the appropriate address set
forth below, or such other address as a Party may provide notice in accordance with this
section:
CITY:
City Clerk
City of Redlands
35 Cajon Street
P.O. Box 3005 (mailing)
Redlands, CA 92373
jdoiialdson@cityofredlands.org
Phone: (909) 798-7531
CONSULTANT:
Kathe Head, President
Keyser Marston Associates, Inc.
777 South Figueroa Street
Suite 2555
Los Angeles, CA 90017
khead@keysermarston.com
Phone: (213) 622-8095 x 401
ARTICLE 6 — INSURANCE AND INDEMNIFICATION
6.1 The following insurance coverage 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 the 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
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provision prohibiting cancellation or modification of the policy except upon thirty (30)
days prior written notice to City.
A. Workers' Compensation and Employer's Liability insurance in the amount that meets
statutory requirements with an insurance carrier acceptable to City, or certification to
City that Consultant is self -insured or exempt from the workers' compensation laws of
the State of California. Consultant shall execute and provide City with Exhibit "D,"
titled "Workers' Compensation Insurance Certification," which is attached hereto and
incorporated herein by this reference, prior to performance of the Services.
B. Comprehensive General Liability insurance with carriers acceptable to City in the
minimum amount 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 such insurance shall
be primary and non-contributing to any insurance or self-insurance maintained by City.
C. Consultant shall secure and maintain professional liability insurance throughout the
term of this Agreement in the amount of One Million Dollars ($1,000,000) per claim
made.
D. Business Auto Liability coverage, with minimum limits of One Million Dollars
($1,000,000) per occurrence, combined single limit bodily injury liability and property
damage liability. This coverage shall include all Consultant owned vehicles used in
connection with Consultant's provision of the Services, hired and non -owned vehicles,
and employee non -ownership vehicles. City shall be named as an additional insured
and such insurance shall be primary and non-contributing to any insurance or self-
insurance maintained by City.
E. Consultant is expressly prohibited from assigning or subcontracting any of the Services
without the prior written consent of City. In the event of mutual agreement by the
Parties to assign or subcontract a portion of the Services, Consultant shall add such
assignee or subcontractor as an additional insured to the insurance policies required
hereby and provide City with the insurance endorsements prior to any Services being
performed by the assignee or subcontractor.
62 Consultant shall defend, indemnify and hold harmless City and its elected and appointed
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 any negligent act or omission by, or the willful misconduct of, Consultant,
or its officers, employees and agents in performing 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
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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 a governmental decision whether to:
(i) approve a rate, rule or regulation, or adopt or enforce a City law;
(ii) issue, deny, suspend or revoke any City permit, license, application,
certification, approval, order or similar authorization or entitlement;
(iii) authorize City to enter into, modify or renew a contract;
(iv) grant 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) grant City approval to a plan, design, report, study or similar item;
(vi) adopt, or grant 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 determines that Consultant must disclose its financial interests, Consultant
shall complete and file a Fair Political Practices Commission Form 700, Statement of
Economic Interests, with the City Clerk's office pursuant to the written instructions
provided by the City Clerk.
ARTICLE 8 — GENERAL CONSIDERATIONS
8.1 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 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. Any
assignment or attempted assignment without such prior written consent may, in the sole
discretion of City, result in City's immediate termination of this Agreement.
8.3 Consultant is for all purposes under this Agreement an independent contractor and shall
perform the Services as an independent contractor. Neither City nor any its agents shall
have control over the conduct of Consultant or Consultant's employees, except as herein
set forth. Consultant shall supply all necessary tools and instrumentalities required to
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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.
8.4 This Agreement may be terminated by City, in its sole discretion, by providing not less
than five (5) days prior written notice to Consultant of City's intent to terminate. 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. 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.
8.5 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.
8.6 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, any
amendment to this Agreement shall be in writing, approved by City and signed by City and
Consultant.
8.7 This Agreement shall be governed by and construed in accordance with the laws of the
State of California, without regard to its conflicts of laws provisions. The Parties agree that
all actions or proceedings arising in connection with this Agreement shall be tried and
litigated only in the state courts located in San Bernardino County, California, and the
federal courts located in Riverside County, California.
8.8 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.
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IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have
signed in confirmation of this Agreement.
CITY LANDS
B
Paul T. Barich, Mayor
ATTEST:
anne Donaldson, City Clerk
KEYSER MARSTON ASSOCIATES, INC.
By:
Kathe Head, President
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EXHIBIT "A"
SCOPE OF SERVICES
A. Inclusionary [dousing: Financial Evaluation
1. In 2015, the California Supreme Court ruled in the California Building Industry Association v.
City of San Jose, 61 Cal 4th 435 (San Jose) that Inclusionary Housing ordinances should be viewed
as use restrictions that are a valid exercise of a jurisdiction's zoning powers. The San Jose ruling
only applies to ownership residential development. The parameters of the San Jose case did not
include Inclusionary Housing restrictions on rental development.
2. In September 2017 the California Legislature adopted AB 1505.1 This legislation, which is
known as the "Palmer Fix", allows jurisdictions to adopt ordinances that impose income and
affordability requirements on rental residential projects.' AB 1505 also requires jurisdictions to
identify alternative methods for fulfilling the affordable housing obligations. These options
include, but are not limited to:
a. In -lieu fee payment;
b. Off -site construction of affordable housing units;
c. Dedication of land for affordable housing development; and
d. The acquisition and rehabilitation of existing units.
3. California Government Code Section 65915 et seq. (Section 65915) imposes density bonus
requirements on projects that fulfill defined income and affordability restrictions.
FOUNDATIONAL ASSUMPTIONS: FINANCIAL EVALUATION
Prototype Developments
The purpose of the KMA analysis will be to evaluate the financial feasibility of imposing
Inclusionary Housing requirements on the housing types anticipated to be developed in Redlands.
As pertinent, KMA proposes to evaluate the following residential product types:
1. Single Family Homes;
2. Townhomes and Condominiums; and
3. Apartment projects.
1 AB 1505 amended Section 65850 of the California Government Code and added Section 65850.01.
2 In 2009, the California Court of Appeal ruled in Palmer/Sixth Street Properties L.P. v. City ofLos Angeles, 175
Cat. App. 4th 1396 that the imposition of Inclusionary Housing requirements on rental housing developmentviolates
the Costa -Hawkins Rental Housing Act. AB 1505 supersedes this decision.
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For analysis purposes, KMA will create prototype developments for the identified housing types.
These prototypes will be developed in consultation with the City staff, and they will be
representative of project types being developed in Redlands. KMA will also evaluate the potential
for the Section 65915 density bonus to be used to mitigate the financial impact created by the
imposition of Inclusionary Housing requirements on the prototype developments.
Information Needs
The foundation of the Financial Evaluation will be a market analysis, the use of KMA's proprietary
pro forma models, and affordability gap analyses. To undertake this analysis it would be useful for
KMA to be provided with the following information:
1. The most recent draft of the City's Sixth Cycle Housing Element.
2. Any housing strategy information that has recently been prepared by the City.
3. A representative sample of for sale and rental residential projects that have been proposed and/or
developed within the past 10 years. The information should include:
a. Detailed scope of development;
b. Development plans if available;
c. The site's zoning designation and development standards; and
d. The parking requirements being imposed.
4. An identification of sites in Redlands that are available for the development of residential uses.
The information provided should include the zoning designation and development standards
imposed on the parcels.
5. The City's current Section 65915 density bonus ordinance.
6. The parking requirements imposed on multifamily and single family residential
development.
7. Estimates of the public permits and fees costs for residential development broken down into per
unit costs associated with typical planning fees, impact fees imposed by the City; school fees, and
fees imposed by jurisdictions other than the City.
Reconsmended lncltrsionary Hoarsing Program Characleristics
The Financial Evaluation will be used to assist I{MA in recommending the following
Inclusionary Housing program characteristics:
1. Identification of project types that may be exempt from the Inchisionary Housing
requirements.
2. The threshold project size that will trigger the Inclusionary requirements.
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3. The percentage of affordable units that will be required to be provided.
4. The income and affordability restrictions that will be imposed.
5. The comparability standards that will be imposed on Inclusionary Units.
6. The treatment of Inclusionary Housing requirements that result in a fractional unit affordable
housing requirement.
7. Alternatives to developing the Inclusionary Units on site within the proposed market rate
project including:
a. A fee that would be paid in lieu of producing affordable units;
b. Off -site development of affordable housing units;
c. Dedication of land for subsequent development of affordable housing units; and
d. Acquisition and rehabilitation of existing units.
8. Quantification of the in -lieu fee payment amounts that can be supported given the affordability
gaps associated with the prototype residential types being evaluated.
9. Recommended procedures for modifying the requirements over time as market conditions
change.
COMPARATIVE ANALYSIS OF INCLUSIONARY POLICIES
The KMA Los Angeles office has assisted in creating over 30 Inclusionary Housing programs in
California. We have also assisted in establishing the implementing policies and procedures in
many of those jurisdictions. The salient characteristics of these programs will be included in the
comparative analysis of existing Inclusionary policies. In addition, KMA will undertake a survey
of the programs adopted throughout California.
The purpose of the comparative analysis is to identify the characteristics embodied commonly by
Inclusionary Housing programs. The results will be used by KMA to identify the best practices
being employed by Inclusionary Housing programs. This information will provide context for the
Inclusionary Housing program parameters to be recommended to the City.
DELIVERABLE PRODUCTS: FINANCIAL EVALUATION
As part of the Financial Evaluation, KMA proposes to deliver the following work products to the
City:
1. KMA will prepare a draft Financial Evaluation report that will be supported by tables, data and
other materials relevant to the analysis.
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2. KMA will prepare a Power Point presentation that summarizes the assumptions, analysis, and
findings of the Financial Evaluation.
3. Following receipt of comments from the City staff, the Planning Commission and the City
Council KMA will finalize the Financial Evaluation report.
B. lnclusionary Policy Recommendations
KMA proposes to prepare a separate policy recommendations memorandum that will be based on
the results of the Financial Evaluation, and the following:
1. Ongoing discussions with City staff,
2. Planning Commission and City Council input;
3. Community input; and
4. The best practices identified in the survey of existing Inclusionary Housing programs.
The policy recommendations memorandum will be organized as follows:
1. The findings of the Financial Evaluation will be summarized.
2. The components of the recommended policies will be identified. The following policy
recommendations for ownership and rental housing development will be included:
a. The financially feasible income targeting standards;
b. The percentage of housing units that should be set aside as Inclusionary
Housing units;
c. Affordable housing production requirements; and
d. The alternative fulfillment options that will be available to projects that are
subject to the Inclusionary Housing program requirements.
3. The role that the Section 65915 density bonus should play in establishing income and
affordability requirements for the City's Inclusionary Housing program.
4. The implementation and administrative tools that should be created by the City after an
Inclusionary Housing program is adopted.
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EXHIBIT 'B"
PROJECT SCHEDULE
KMA proposes to complete the proposed draft Financial Evaluation report within eight weeks of
receiving authorization from the City to proceed and the information requested in this proposal.
KMA proposes to complete the Policy Recommendations memorandum within three weeks
following receipt of input from the Planning Commission and City Council.
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EXHIBIT "C"
Fee Schedule Title
The following table presents estimated fees for each task included in this proposal.
Task
Inclusionary Housing: Financial Evaluation Report
Policy Recommendations Memorandum
Meetings/Presentations
Tota I
Budget
$361500
9,500
4,400
$501400
The fee for the individual tasks may vary from these estimates, but the total budget will not be altered
unless the work scope is expanded beyond the parameters identified in this proposal. The proposed
budget includes 15 hours of in-person/virtual meeting time with City staff, community stakeholders,
Planning Commission and City Council.
It is important to note that if the scope of services changes materially, and/or the in-person/virtual
meeting time requested by the City exceeds 15 hours, the budget will need to be adjusted
accordingly. If once the project has started, KMA believes that the budget could be exceeded, we will
contact the City immediately for further direction.
The KMA hourly billing rate schedule that will be applied to this engagement is presented in the
following table:
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KMA Billing Rate Schedule
Chairman, President, Managing Principals * $305.00
Senior Principals * $295.00
Managers * $245.00
Associates $185.00
Senior Analysts $170.00
Analysts
Administrative Staff
$145.00
$90.00
* Rates for individuals in these categories will be increased by 50% for time spent in court testimony.
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EXHIBIT "D"
WORKERS' COMPENSATION INSURANCE CERTIFICATION
Every employer, except the State, shall secure the payment of compensation in one or more of the
following ways:
(a) By being insured against liability to pay compensation by one or more insurers duly
authorized to write compensation insurance in this State.
(b) By securing from the Director of Industrial Relations, a certificate of consent to
self -insure, either as an individual employer, or as one employer in a group of
employers, which may be given upon furnishing proof satisfactory to the Director
of Industrial Relations of ability to self -insure and to pay any compensation that
may become due to his or her employees.
CHECK ONE
Kathl I am aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for Workers' Compensation or to undertake self-insurance
in accordance with the provisions of that Code, and I will comply with such provisions before
commencing the performance of the work and activities required or permitted under this
Agreement. (Labor Code § 1861).
Kathl I affirm that at all times, in performing the work and activities required or permitted under
this Agreement, I shall not employ any person in any manner such that I become subject to the
workers' compensation laws of California. However, at any time, if I employ any person such that
I become subject to the workers' compensation laws of California, immediately I shall provide the
City with a certificate of consent to self -insure, or a certification of workers' compensation
insurance.
I certify under penalty of perjury under the laws of the State of California that the information and
representations made in this certificate are true and correct.
KEYSER MARSTON ASSOCIATES, INC.
By:
-
Katlic Head, President
Date:
10 / 04 / 2022
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Audit Trail
TITLE Agreement for Inclusionary Housing Plan - City of Redlands
FILE NAME AGREEMENT TO PERF... ONAL SERVICES.pdf
DOCUMENT ID ba95024cdf049c2c5cc8fb358bf39e6519fcf1aa
AUDIT TRAIL DATE FORMAT MM 1 DID I YYYY
STATUS Signed
Document History
0 10 103 12022 Sent for signature to Kathleen Head
SENT 22:02:27 UTC (khead@keysermarston.com) from dsd01@cityofredlands.org
IP: 47.181.153.216
Uo 101 04 / 2022 Viewed by Kathleen Head (khead@keysermarston.com)
VIEWED 11:01:57 UTC IP: 722,237212
10 / 04 / 2022 Signed by Kathleen Head (khead@keysermarston.com)
SIGNED 11:05:19 UTC IP: 72,2237.212
10 10412022 The document has been completed.
GQMI'LeTED 11:05:19 UTC
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