Loading...
HomeMy WebLinkAboutCC AG PKT 2014-05-27 #D AGENDA STAFF REPORT s DATE: May 27, 2014 /FOR++P. TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Victoria L. Beatley, Director of Finance/City Treasurer SUBJECT: AN ECONOMIC DEVELOPMENT SERVICES AGREEMENT WITH STRATEGIC ECONOMIC DEVELOPMENT, LLC SUMMARY OF REQUEST: That the City Council adopt Resolution No. 6463 approving an Economic Development Services Agreement with Strategic Economic Development, LLC and authorizing and directing the City Manager to execute the agreement. BACKGROUND AND ANALYSIS: California imposes a sales tax on every retailer of personal property of 6.25%. An additional 1.25% sales tax is levied based on the Bradley-Burns Uniform Local Sales and Use Tax Law; and in Orange County, Measure M adds an additional 0.50%. State law provides for the return of this 1% sales tax to the jurisdiction where the retail sale originated (i.e., for every $100.00 of retail sales in Seal Beach, the State returns $1.00). The City has on past occasions determined that sharing a portion of this 1% sales tax with businesses that agree to relocate or remain in the City serves a public purpose by promoting the long-term fiscal health, safety, and welfare of the City's residents and enhancing the overall economic vitality of the City. To further enhance the City's economic growth, staff recommends entering into an agreement with a consultant to more purposefully attract new business to the City. Staff has therefore negotiated the terms of a consulting agreement with Strategic Economic Development, LLC ("SED"), which possesses the expertise to bring to the City new businesses that generate desired annual taxable sales. As indicated in the agreement, for every business that SED attracts to the City, the City would pay SED a fee equal to 7% of the 1% sales tax revenue generated by that business, for up to 20 years. The City would also pay SED a one-time success fee for each new business that relocates to the City equal to 5% of the Agenda Item Q sales tax generated by the business in the 12 months preceding its relocation to the City. ENVIRONMENTAL IMPACT: There is no environmental impact related to this item. LEGAL ANALYSIS: The City Attorney has reviewed the proposed agreement and resolution and approved each as to form. FINANCIAL IMPACT: The financial impact of this agreement is unknown at this time. If SED is successful in attracting new businesses to the City, the City would pay SED a one-time success fee and ongoing contingent payments as indicated above. The ongoing contingent payments would be offset by tax revenues generated by the new businesses. Sufficient funding is available in account number 001-019-44000 (non- departmental contract professional services) to provide funding up to $25,000 for the remainder of the fiscal year. If necessary, a purchase order will be issued to encumber the funds for FY 2014-2015. RECOMMENDATION: That the City Council adopt Resolution No. 6463 approving an Economic Development Services Agreement with Strategic Economic Development, LLC and authorizing and directing the City Manager to execute the agreement. SUBMITTED BY: NOTED AND APPROVED: Victoria L. Beatley J A. Ingram, City `a ager Director of Finance/ City Tre surer Attachments: A. Resolution No. 6463 B. Economic Development Services Agreement Page 2 RESOLUTION NUMBER 6463 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING AN ECONOMIC DEVELOPMENT SERVICES AGREEMENT WITH STRATEGIC ECONOMIC DEVELOPMENT LLC THE SEAL BEACH CITY COUNCIL DOES HEREBY FIND AND RESOLVE: Section 1. The City Council hereby approves that Economic Development Services Agreement dated May 27, 2014 with Strategic Economic Development, LLC. Section 2. The City Council hereby authorizes and directs the City Manager to execute the Agreement. PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 27th day of May , 2014 by the following vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6463 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 27th day of May 2014. City Clerk ECONOMIC DEVELOPMENT SERVICES AGREEMENT between �F SEA1 B \�C,zPP0 RgjFF'9�� CD a cFFR2� �9 ��� CpU 'Ty GP City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Strategic Economic Development, LLC 2892 Bellflower Boulevard, Suite 459 Long Beach, CA 90815 (562) 883-3001 This Economic Development Services Agreement ("the Agreement") is made as of May 27, 2014 (the "Effective Date"), by and between Strategic Economic Development, LLC ("Consultant"), a California limited liability corporation, and the City of Seal Beach ("City"), a California charter city, (collectively, "the Parties"). 1 of 12 RECITALS A. City desires certain economic development services. B. Consultant represents that it is qualified to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows: AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide City with economic development services ("Services") including, but not limited to: (1) strategy development with City staff; (2) identification, selection, and incentivization of new businesses to locate in City; (3) performing due diligence on prospective new businesses; (4) coordination of the relocation to City of new businesses; (5) development of new business-City partnerships; and (6) annual contract performance reviews and other reporting as directed by City. 1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 1.4. Consultant will not be compensated for any work performed not specified in the Scope of Services unless City authorizes such work in advance and in writing. The City Manager may authorize payment for such work up to a cumulative maximum of $25,000. Payment for additional work in excess of $25,000 requires prior City Council authorization. 2.0 Term The term of this Agreement shall commence as of the Effective Date and shall continue until terminated as provided herein. Termination of this Agreement shall not extinguish or alter in any way the duties and rights of City and Consultant that may have accrued prior to such termination. 3.0 Consultant's Compensation 3.1. Contingent Quarterly Payments. For each business listed on Exhibit A, City shall make to Consultant eighty (80) Contingent Quarterly Payments, paid quarterly on a fiscal year basis and equal to 7% of such Sales Tax Revenue generated by that business and actually received by City in the preceding quarter, provided that if City identifies a new business that is added to Exhibit A, the Contingent Quarterly Payment 2of12 to Consultant shall be equal to 5% of the Sales Tax Revenue generated by that business. These payments to Consultant shall be made within 15 days after City confirms its quarterly receipt of Sales Tax Revenue. City's obligations under this paragraph shall survive termination of this Agreement. 3.2. Contingent Success Payment. For each new business added to Exhibit A by the mutual written consent of the Parties, City shall remit to Consultant (on a one- time basis) a Contingent Success Payment that is equal to 5% of the Sales Tax Revenue generated by that new business during the 12-month period prior to its addition to Exhibit A. City may review the Sales Tax Revenue actually generated by each new business added to Exhibit A after one year of operating in City, and if the amount of Sales Tax Revenue actually generated is less than Contingent Success Payment made to Consultant for that business, Consultant shall refund 5% of the difference to City. 3.3. Annual Adjustment. Promptly after each fiscal year of City, City shall determine with respect to the preceding fiscal year, both the aggregate amount of Sales Tax Revenue received by City from the businesses listed on Exhibit A and the aggregate Contingent Quarterly Payments made to Consultant pursuant to Section 3.1. If for any reason (including but not limited to reporting errors or other adjustments) the aggregate amount of the Contingent Quarterly Payments made by City pursuant to Section 3.1.1 of this Agreement for the preceding fiscal year is less than 7% of Sales Tax Revenue generated by the businesses listed on Exhibit A (or 5% in the case of businesses originally identified by City) during that same fiscal year, City shall pay to Consultant an adjustment payment equal to the amount of the deficiency. If for any reason (including but not limited to reporting errors or other adjustments) the aggregate amount of the Contingent Quarterly Payments made by City pursuant to Section 3.1 of this Agreement for the preceding fiscal year is more than 7% of Sales Tax Revenue generated by the businesses listed on Exhibit A (or 5% in the case of businesses originally identified by City) during that same fiscal year, then the amount of the excess shall be applied towards the next Contingent Quarterly Payment due under Section 3.1; except that if any unapplied excess remains after the last Contingent Quarterly Payment has been made, then Consultant shall pay the amount of the unapplied excess to City upon demand. 3.4. Disputes. In the event of any dispute regarding the amounts payable under this Agreement, the Parties shall promptly meet and confer in good faith to attempt to resolve the dispute. 3.5. Approved Expense Payment. City shall reimburse Consultant for expenses incurred by Consultant that have been previously approved in writing by City. 3.6. Sales Tax Revenue. For purposes of this Agreement, "Sales Tax Revenue" means the taxes derived from businesses listed on Exhibit A and allocated to and actually received by City pursuant to the Uniform Local Sales and Use Tax Law, commencing with California Revenue and Taxation Code Section 7200 et seq., as amended. "Sales Tax Revenue" shall not include Penalty Assessments, taxes levied 3of12 by, collected for or allocated to the State of California, the County of Orange, any district or other entity, or any funds paid, granted or allocated to City by the State of California, the County of Orange, any district or other entity, notwithstanding that such funds received by City are derived or measured by such other entity based upon taxable sales. "Sales Tax Revenue" shall also not include: (i) any portion of taxes received by City that City may be required to pay, transfer, assign, or allocate to any other entity or entities by virtue of any law now or hereafter existing, or by virtue of any agreement entered into between City and any other governmental entity under California Government Code Section 53084; (ii) the State Board of Equalization's administrative and processing fee attributable to City's portion of such taxes (calculated at the same percentage of such taxes as applies city-wide); or (iii) any sales tax "over-rides" for transportation and public safety. Sales and Use Taxes shall not be considered to have been received by City until City is able to confirm receipt of such taxes from the State Board of Equalization. 3.7. Gann Limit. Total payments to Consultant in any single budget year shall be limited to the extent necessary to prevent City from exceeding the Gann limit (California Const., Art. 13B) for that budget year. In the event that payments to Consultant are so limited, any unpaid amounts shall be remain due to Consultant, and City's obligations for such unpaid payments shall survive the Term of this Agreement until paid by City. 3.8. Taxing Authority. Consultant may not and shall not attempt to compel any exercise of City's taxing authority to make any payments provided for in this Section 3.0. 4.0 Exhibit A. 4.1. Exhibit A shall not be amended, in whole or in part, except by mutual written consent of both Parties as provided for on Exhibit A. In the event of termination by any Party, no new businesses shall be added to Exhibit A. 4.2. For purposes of this Agreement, each new business identified in Exhibit A shall be composed of itself and each of its subsidiaries and affiliates, each located within City. No change in name, legal structure, or ownership (whether by acquisition, merger, reorganization, or any other means) of any business listed on Exhibit A shall be construed as a new business entitling Consultant to additional compensation. Nor shall any such change in name, legal structure, or ownership (whether by acquisition, merger, reorganization, or any other means) alter City's obligations pursuant to this Agreement. 4.3. Unless otherwise agreed to in writing by City, Consultant warrants that the new businesses identified in Exhibit A are not "relocating businesses" within the meaning of Section 53084 of the California Government Code such that City would be required to share Sales Tax Revenue generated by such businesses with any other jurisdiction. To the extent that any new businesses indentified in Exhibit A is determined to be a "relocating businesses," Consultant shall immediately return to City 4of12 any Contingent Monthly payment or Contingent Success Payment made to Consultant related to such business. 5.0 No Loan or Indebtedness The provisions of this Agreement do not constitute nor shall be construed as constituting any indebtedness or a loan of credit of either Party within the meaning of any constitutional or statutory authority. 6.0 Consultant's Records Upon 24-hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 6.0 shall survive for two years following the termination of this Agreement. 7.0 Termination 7.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 7.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 7.3. City's obligations under Section 3.1 shall survive termination of this Agreement. 8.0 Party Representatives 8.1. The City Manager is City's representative for purposes of this Agreement. 8.2. Diane Ripley is Consultant's primary representative for purposes of this Agreement. 9.0 Notices 9.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: 5of12 To City: City of Seal Beach 211 - 8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Strategic Economic Development, LLC 2892 Bellflower Boulevard, Suite 459 Long Beach, California 90815 Attn: General Counsel 9.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 10.0 Independent Contractor 10.1. Consultant is an independent contractor and not an employee of City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and Workers' Compensation insurance. 10.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 11.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of City. Consultant is fully responsible to City for the performance of any and all subcontractors. 12.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 6of12 13.0 Insurance 13.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by City if requested. All certificates and endorsements shall be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 13.2. Consultant shall, at its expense, procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim/aggregate. 13.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days' prior written notice by certified mail, return receipt requested, has been given to City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City, its directors, officials, officers, (3) coverage shall be primary insurance as respects City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Consultant's scheduled underlying coverage and that any insurance or self-insurance maintained by City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the 7 of 12 ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Consultant or for which Consultant is responsible. 13.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to City, its directors, officials, officers, employees, agents, and volunteers. 13.5. Any deductibles or self-insured retentions shall be declared to and approved by City. Consultant guarantees that, at the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its directors, officials, officers, employees, agents, and volunteers; or (2) Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 14.0 Indemnification, Hold Harmless, and Duty to Defend 14.1. Except for claims made under Section 53084 of the California Government Code, Consultant shall defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of City officials (collectively "City Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation, the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against City Indemnitees, Consultant shall defend City Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against City Indemnitees. Consultant shall reimburse City Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or any of the City Indemnitees. All duties of Consultant under this Section shall survive termination of this Agreement. 14.2. Except for claims made under Section 53084 of the California Government Code, City shall defend, indemnify, and hold Consultant, its officers, employees, and agents (collectively "Consultant Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of City, its employees, or its agents in connection with the performance of this Agreement, including without limitation, the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful 8of12 misconduct of Consultant Indemnitees. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Consultant Indemnitees, City shall defend Consultant Indemnitees, at City's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Consultant Indemnitees. City shall reimburse Consultant for any and all legal expenses and costs incurred in connection therewith or in enforcing the indemnity herein provided. City's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant. All duties of City under this Section shall survive termination of this Agreement. 15.0 Breach Provisions 15.1. A Party shall be deemed in breach of this Agreement if it materially breaches any of its provisions and such material breach is not cured within the time set forth in a written notice of violation from the other Party, which notice period shall not be less than 30 days from the date the notice of breach is deemed made, provided that if the breaching party cannot reasonably cure the breach within the time frame set in the notice, that Party shall be in breach only if it fails to commence to cure the breach within such time limit and diligently thereafter pursue such cure to completion. 15.2. Either Party may terminate this Agreement for breach after notice and failure to cure as set forth in Section 15.0 has occurred. This remedy shall be in addition to any other remedies afforded to the Parties by law. 16.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 17.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 18.0 Entire Agreement This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both Parties. 9of12 19.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 20.0 Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action, suit, or proceeding related to or arising from this Agreement shall be filed in an appropriate court having jurisdiction in the County of Orange, California. 21.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 22.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 23.0 Prohibited Interests; Conflict of Interest 20.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 20.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 10 of 12 20.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 24.0 Attorneys' Fees If either Party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing Party in such action shall be entitled to recover from the losing Party its attorneys' fees and other costs incurred in connection therewith. A court, upon notice and motion by a party, shall determine who the prevailing is. Any recoverable attorneys' fees and costs shall be fixed by such court. 25.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 26.0 Captions and Headings The captions and headings of the various sections and subsections of this Agreement are for the convenience of reference only, and they shall neither constitute a part of this Agreement for any other purpose nor affect its interpretation. 27.0 Corporate Authority The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, Consultant is formally bound to the provisions of this Agreement. [Signature block follows on the next page] 11 of 12 IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH CONSULTANT By: By: Jill R. Ingram, City Manager Name: Attest: Its: By: Linda Devine, City Clerk By: Approved as to Form: Name: By: Its: Quinn Barrow, City Attorney 12 of 12 m Z D < cn J C J U a Z J IL Oa H Q U `. Z W Na. mw N O O Q U) c�a > OQ co � w HW � QU " < O F- O Z V H H W W 2V w0m W _ LU Q02 a � � mow as o Q Q m wC 2 U X X > Z w W Z a Q W m F- m as OW J W (1) > LL o 0 (n _ (1)U W OW p O F- L) Z ww w LU LL U) m Ow wZ_ Z ca m