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r• 411 AGREEMENT FOR ON -CALL FISCAL IMPACT
CONSULTING SERVICES
i THIS AGREEMENT, is made and entered into this R12044-day of
2 , . ! , 1996, by and between the CITY OF SEAL BEACH (hereinafter called
3 " / / and ECONOMICS RESEARCH ASSOCIATES, (hereinafter called
4 "CONSULTANT ").
5 RECITALS
6 WHEREAS, from time -to -time CITY may find it necessary to employ the
7 professional services of one or more consultants to assess and study the fiscal impacts to CITY
8 of future development applications anticipated to be submitted for consideration by CITY; and
9 WHEREAS, the City Council will require the consideration of fiscal impacts prior
10 to CITY's decision on future development applications; and
11 WHEREAS, CONSULTANT represents that it is able to conduct the necessary
12 evaluations and prepare the appropriate documentation necessary for fiscal impact assessments
13 in conformance with all applicable laws and guidelines; and
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 WHEREAS, CITY desires to establish the terms and conditions of
2 CONSULTANT's employment in advance, to enable CONSULTANT to proceed expeditiously
3 when assignments from CITY become available; and
4 WHEREAS, CONSULTANT is willing to enter into an agreement with CITY to
5 enable CONSULTANT to provide such services under specified terms and conditions when and
6 if CITY actually assigns work to CONSULTANT.
7 NOW, THEREFORE, the parties agree as follows:
8 Section 1. Term of Agreement. The term of this Agreement
9 shall be for three (3) years from the day and year first above stated. On the first and second
10 anniversary of the date this Agreement is executed, CONSULTANT may amend the "Schedule
11 of Fees" attached hereto as Exhibit "B" by providing a revised written Schedule to CITY not
12 less than ten (10) calendar days after such anniversary date.
13 Section 2. Consultant's Services.
14 (a) CONSULTANT shall perform those professional services necessary to
15 produce fiscal impact studies of designated development projects in CITY, as specifically
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 assigned to CONSULTANT by CITY. Nothing in this Agreement shall be construed to
2 represent any specific assignment, authorization to proceed, or promise to pay compensation to
3 CONSULTANT by CITY. CONSULTANT shall not commence any work pursuant to this
4 Agreement unless and until CITY first delivers to CONSULTANT, either by personal service
5 or registered mail, a written Notice to Proceed with the Assignment. CONSULTANT
6 acknowledges that the execution of this Agreement serves only to establish the terms and
7 conditions for future possible employment, and to establish the terms and conditions therefor.
8 CONSULTANT acknowledges that CITY cannot with any certainty predict the nature and extent
9 of any future work assignments to be provided to CONSULTANT. By entering into this
10 Agreement, CITY does not intend to, and shall not be deemed to, warrant that CITY will
11 provide any specific employment to CONSULTANT. Only after receipt of a written Notice to
12 Proceed from CITY, CONSULTANT agrees to perform the following general services:
13 1. Project Management. This includes management and
14 supervision of appropriate staff and sub - consultants; consultation and coordination of project
15 proposals and other fiscal impact documents among local and state agencies; and, coordination
16 with CITY's project team.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 2. Technical evaluation of fiscal impact issues within a scope agreed
2 upon by CITY and CONSULTANT on a per- project basis, including management of necessary
3 sub- consultants.
4 3. Preparation of required reports and studies which can be
5 incorporated into subsequent project consideration documents presented to the City Council.
6 4. Participation at community meetings and public hearings.
7 (b) If changes to existing laws, rules, regulations or policies of any state,
8 federal or local governmental authority having jurisdiction over the project occur during the term
9 of this Agreement that require modification of any required reports, CONSULTANT will
10 perform such additional services on a time- and - materials basis.
11 (c) When requested, CONSULTANT shall attend and
12 participate in meetings with CITY staff and public hearings before CITY's Planning Commission
13 and City Council which involve the assigned projects. CONSULTANT shall be compensated
14 at the rates set forth in the "Schedule of Fees" attached hereto as Exhibit B and incorporated
15 herein by reference.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 (d) CONSULTANT shall respond in writing to those comments raised by
2 CITY's staff and public review of the appropriate fiscal impact analysis document, in order to
3 facilitate the completion of the final fiscal impact analysis document.
4 Section 3. Compensation. CITY agrees to compensate CONSULTANT
5 and, upon request by CITY, CONSULTANT agrees to perform the tasks and deliver the
6 products required in Section 2, above, at the rates set forth in the "Schedule of Fees" attached
7 hereto as Exhibit B and incorporated herein by reference. Such Exhibit B may be revised each
8 year on the anniversary of the execution of this Agreement to reflect current charges of
9 CONSULTANT without requiring additional City Council review, upon written request from
10 CONSULTANT to CITY not more than ten (10) calendar days after the anniversary of the
11 execution of this Agreement.
12 CITY shall further reimburse CONSULTANT for such necessary and reasonable
13 out -of- pocket expenses incurred by the CONSULTANT in the performance of CONSULTANT' s
14 assigned duties under this Agreement including, without limitation, postage, printing and
15 duplication costs, and messenger costs. Reimbursable expenses shall be billable at the actual
16 costs reasonably incurred therefor, plus a 10 % surcharge. CONSULTANT shall not be
17 reimbursed for any individual expense in excess of $100.00, unless CONSULTANT has received
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 the prior written authorization of CITY's Director of Development Services to incur such
2 expense.
3 Within ten (10) days after the last day of any month, CONSULTANT shall submit
4 an invoice to CITY itemizing tasks performed and reimbursable expenses. CITY shall pay
5 within thirty (30) days of receipt the amount set forth in monthly statements submitted to CITY
6 by CONSULTANT describing in reasonable and understandable detail the services rendered, and
7 fees charged and expenses incurred by CONSULTANT during the previous month in accordance
8 with the billing standards set forth in Exhibit B.
9 If CONSULTANT is requested by CITY to revise or supplement a fiscal impact
10 analysis with additional data, information or analyses solely as a result of CONSULTANT's
11 failure to comply with the determined scope of work for the subject project, CONSULTANT
12 shall provide such revision or supplement at no additional cost to the CITY.
13 Section 4. Time of Performance. CONSULTANT shall timely perform
14 such services as are necessary to complete the necessary fiscal impact analyses. The required
15 time frame for submission of such work products shall be coordinated with the Director of
16 Development Services of CITY, to ensure compliance with required application processing
17 schedules.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 Section 5. Independent Contractor. CONSULTANT, its employees,
2 agents, subcontractors and vendors shall at all times act hereunder as an independent contractor.
3 This Agreement shall not, and is not intended to, designate CONSULTANT as an agent,
4 servant, or employee of CITY and shall not and is not intended to create the relationship of
5 partnership, joint venture or association between CITY and CONSULTANT. CONSULTANT
6 shall have no power to incur any debt, obligation, or liability on behalf of the CITY or to
7 otherwise act on behalf of CITY as an agent. Neither CITY nor any of its agents shall have
8 control over the conduct of CONSULTANT nor any of CONSULTANT's employees, except
9 as set forth in this Agreement. CONSULTANT shall not, at any time, or in any manner,
10 represent that it or any of its agents or employees are in any manner agents or employees of
11 CITY.
12 Section 6. Assignment. CONSULTANT shall not assign, delegate, transfer
13 or hypothecate this Agreement or any interest in this Agreement directly or indirectly by
14 operation of law or otherwise without the prior written consent of CITY. Any attempt to do so
15 without such consent shall be null and void and confer no right on any third party.
16 Section 7. Document Ownership. CITY and CONSULTANT agree that
17 any and all documents, studies or plans prepared as a result of this Agreement shall be the sole
18 property of CITY. All reports, information, data and exhibits prepared or assembled by
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 CONSULTANT in connection with the performance of its services pursuant to this Agreement
2 are confidential until released by CITY to the public and CONSULTANT agrees that they shall
3 not be made available to any individual or organization without prior written consent of the
4 CITY prior to such release. All such reports, information, data and exhibits shall be delivered
5 to CITY upon demand without additional cost or expense to CITY. All required reports and
6 analysis shall be provided to CITY in hard copy 81/2" x 11" reproducible form and also in Word
7 Perfect 5.0 or 5.1 format. All charts, tables, figures, and maps which are prepared with
8 computer -based mapping or spread -sheet programs shall be provided to CITY in a format
9 acceptable to CITY. CONSULTANT shall retain unlimited rights to the future use of reports
10 and data produced as a result of this agreement.
11 Section 8. City Liaison. CONSULTANT shall perform under the
12 general supervision of the City Manager of CITY or his designee, and all communications,
13 instructions and directions on the part of CITY shall be communicated exclusively through
14 the City Manager or his designee.
15 Section 9. Personnel. David A. Wilcox, Senior Vice President, shall have
16 direct responsibility for the management and completion of the projects assigned in a timely and
17 professional manner. No change shall be made in this assignment without the prior written
18 approval of CITY. CONSULTANT may employ, at CONSULTANT's sole cost and expense,
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 such other persons as may, in the opinion of CONSULTANT, be needed to comply with the
2 terms of this Agreement. CONSULTANT warrants that such employees shall be fully qualified
3 under applicable State, Federal and local law to perform the services for which CONSULTANT
4 employs them.
5 In addition to personnel employed directly by the CONSULTANT, CONSULTANT shall
6 have the right to engage such subcontractors as it may deem necessary to the performance of its
7 services hereunder with the prior approval of CITY, which approval shall not be unreasonably
8 withheld.
9 Section 10. Data and Services to be Furnished by City. All information,
10 data, records, and maps as are in possession of CITY and necessary for the carrying out of this
11 work shall be made available to CONSULTANT without charge.
. 12 Section 11. Insurance.
13 (a) Throughout the term of this Agreement CONSULTANT shall, at
14 CONSULTANT's sole expense, maintain in full force and effect all necessary insurance for its
15 employees and agents engaged in the performance of this Agreement, procured from insurance
16 carriers admitted to do business in California and rated B+ or better in Best's Insurance Guide.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 CITY shall have the right to approve or disapprove any insurance procured by CONSULTANT
2 under the standards of this section. Not less than three (3) business days prior to commencing
3 any work pursuant to this Agreement, CONSULTANT shall provide to CITY a certificate of
4 insurance evidencing the insurance coverage specified below.
5 1. Comprehensive general and automobile liability insurance with
6 policy limits of not less than $1,000,000 for personal injury to any one person, $1,000,000 for
7 injuries arising out of any one occurrence, and $500,000 for property damages or a combined
8 single limit of $1,000,000. Such insurance shall indemnify CITY from all liability from loss,
9 damage, or injury to persons or to property arising from negligence by CONSULTANT in the
10 performance of services under this Agreement.
11 2. Professional errors and omissions insurance with policy limits in
12 an amount not less than $500,000.
13 3. Workers' Compensation insurance as required by California Labor
14 Code Sections 3700, et seq.
15 (b) Such insurance policies shall include a severability of interests clause
16 substantially similar to the following: "The insurance afforded by this policy applies separately
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 to each insured against whom a claim or suit is made or suit is brought, except with respect to
2 the limit of the insurer's liability ".
3 (c) Such insurance shall be primary to any other similar insurance and shall
4 name the City of Seal Beach, its officers, agents and employees, as additional insureds. Each
5 such policy of insurance shall contain a provision that prohibits cancellation, modification, or
6 lapse without thirty (30) days' prior written notice to the CITY.
7 (d) CONSULTANT further agrees that a clause substantially similar to this
8 section will be included in any subcontract executed under this Agreement. CONSULTANT
9 shall be solely responsible for ensuring that its subcontractors, if any, comply fully with the
10 insurance requirements set forth in this Agreement.
11 (e) Procurement of insurance by CONSULTANT shall not be construed as
12 either a limitation of CONSULTANT's liability, or as performance of CONSULTANT's duties
13 to indemnify, hold harmless, and defend under this Agreement. Notwithstanding procurement
14 of insurance by CONSULTANT, CONSULTANT's duties to indemnify, hold harmless, and
15 defend under this Agreement shall extend to the full and total amount of any damage, injury,
16 or loss caused by or incident to CONSULTANT's acts or omissions under this Agreement.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 Section 12. Indemnification. CONSULTANT agrees to indemnify and hold
2 harmless CITY, its officers, agents, and employees from and against any and all liability or
3 expense, including defense costs and legal fees, and claims for damages of any nature
4 whatsoever, including but not limited to, bodily injury, death, personal injury, or property
5 damage arising from or connected with CONSULTANT's operations or its services hereunder
6 resulting from CONSULTANT's reckless or negligent acts, errors, or omissions or
7 CONSULTANT's willful misconduct.
8 Section 13. Termination. The executory provisions of this Agreement
9 may be terminated by CITY upon ten (10) days' written notice to CONSULTANT without
10 further action by CITY. The executory provisions of this Agreement may be terminated by
11 CONSULTANT upon thirty (30) days' written notice to CITY. In the event of such termination
12 by CITY after issuing a Notice to Proceed to CONSULTANT but prior to CONSULTANT's
13 completion of a specified assignment, CITY shall pay CONSULTANT for work completed to
14 the date of such termination, provided such work is in a form useable to CITY.
15 Section 14. Notice. Any notice required to be given to CONSULTANT
16 shall be deemed duly and properly given upon delivery, if sent to CONSULTANT postage
17 prepaid to:
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 Economics Research Associates
2 Attn: David A. Wilcox
3 ' 10990 Wilshire Boulevard, Suite 1600
4 Los Angeles, CA 90024
5 or personally delivered to CONSULTANT at such address or other address specified to the
6 CITY in writing by CONSULTANT.
7 Any notice required to be given to CITY shall be deemed duly and properly given
8 upon delivery, if sent to CITY postage prepaid to:
9 City of Seal Beach
10 City Manager
11 211 Eighth Street
12 Seal Beach, Ca. 90740
13 or personally delivered to CITY at such address or other address specified to CONSULTANT
14 in writing by CITY.
15 Section 15. Entire Agreement. This Agreement, and any additional or
16 supplementary document or documents incorporated herein by specific reference, represent the
17 entire and integrated agreement between the parties and supersedes any and all prior
18 negotiations, representations or agreements, written or oral.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 Section 16. Matters to be Disregarded. The titles of the sections, subsections,
2 and paragraphs set forth in this Agreement are inserted for convenience and reference only and
3 shall be disregarded in construing or interpreting any of the provisions of this contract.
4 Section 17. Conflict of Interest. CONSULTANT hereby warrants for
5 itself, its employees, and subcontractors that those persons presently have no interest and shall
6 not obtain any interest, direct or indirect, which would conflict in any manner with the
7 performance of the services contemplated by this Agreement. No person having such conflicting
8 interest shall be employed by or associated with CONSULTANT in connection with this project.
9 CONSULTANT hereby warrants for itself, its employees, and subcontractors that no such
10 person shall engage in any conduct which would constitute a conflict of interest under any CITY
11 ordinance, state law or federal statute. CONSULTANT agrees that a clause substantially similar
12 to this section shall be incorporated into any sub - agreement which CONSULTANT executes in
13 connection with the performance of this Agreement.
14 CONSULTANT hereby agrees that for a period of two years following the termination
15 of this Agreement, it shall not represent or consult with, accept employment or contract with,
16 any person or entity, except CITY, with respect to an application to CITY for a variance,
17 conditional use permit, subdivision or parcel map, zone change, general plan amendment or any
18 other land use approval whereby CITY or any of its agencies renders its decision in any quasi -
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Consultant Agreement — Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
1 judicial or legislative capacity. CONSULTANT agrees that a clause substantially similar to this
2 section shall be incorporated into any sub - agreement which CONSULTANT executes in
3 connection with the performance of this Agreement.
4 Section 17. Breach of Agreement. No breach of any provision of this
5 Agreement can be waived unless in writing. Waiver of any one breach of any provision shall
6 not be deemed to be a waiver of any other breach of the same or any other provision of this
7 Agreement. In no event shall the making by CITY of any payment to CONSULTANT
8 constitute or be construed as a waiver by CITY of any breach of covenant, or any default which
9 may then exist, on the part of the CONSULTANT, and the malting of any such payment by
10 CITY while any such breach or default shall exist shall in no way impair or prejudice any right
11 or remedy available to CITY with regard to such breach or default.
12 Section 18. Litigation Costs. In the event that either party to this
13 Agreement shall commence any legal action or proceeding to enforce or interpret the provisions
14 of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover
15 its costs of suit, including reasonable attorney's fees.
16 EXECUTED on the day and year first above stated.
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Consultant Agreement -- Fiscal Impact Services
City of Seal Beach and Economics Research Associates
August, 1996
"CONSULTANT" Economics Research Associates
Name of Firm
B y 'ti/ \i; • Senior Vice President
"CITY" City of Seal Beach
By .� e_._
City anager
ATTEST: APPROVED AS TO FORM:
r � '
r —
C F1erk City Attorney
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