HomeMy WebLinkAboutE-06 Staff Report - RFP Tax Increment Financing Feasibility StudyCONSENT ITEM
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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: KURT CHRISTIANSEN, FAICP, ECONOMIC AND COMMUNITY DEVELOPMENT
DIRECTOR
DATE: NOVEMBER 19, 2018
SUBJECT: AUTHORIZATION TO RELEASE A REQUEST FOR PROPOSALS FOR TAX
INCREMENT FINANCING FEASIBILITY STUDY
BACKGROUND:
The Los Angeles County Metropolitan Transportation Authority (Metro) has a vested interest in creating
an environment that promotes, encourages and supports transit riders. As a result, Metro created the
Transit Oriented Development (TOD) Planning Grant Program that funds local governments to develop
and promote equitable, sustainable, transit-supportive planning. On April 27, 2017, the Metro Board
approved funding for Round 5 of the program. Round 5 of the program offered two grant opportunity
categories: (1) Transit Supportive Regulatory Documents and (2) Tax Increment Financing Feasibility
Studies. On July 17, 2017, Staff was authorized to submit a grant application to study the feasibility of
creating Transit-Oriented Community Tax Increment Financing Districts. The City was a successful
applicant and on March 1, 2018, the Metro Board of Directors approved the award of grant funds. At the
May 7, 2018 City Council meeting, Staff was authorized to accept the grant award of $141,000 and to
execute a Grant Agreement with Metro. Since then, Staff has executed the Grant Agreement and is now
prepared to seek a qualified consultant to assist with the study. The proposed action authorizes Staff to
solicit proposals from qualified consultants.
RECOMMENDATION:
Staff recommends that the City Council take the following action:
1) Authorize Staff to release a request for proposals for a tax increment financing feasibility study.
ANALYSIS:
The City was one of three jurisdictions selected to study the feasibility of creating Transit-Oriented
Communities Tax Increment Financing (TIF) districts. The TIF Study will explore the formation of an
Enhanced Infrastructure Financing District (EIFD), a Community Revitalization and Investment Act
(CRIA) or other TIF programs. Staff is seeking authorization to release a request for proposals to invite
qualified consultants to perform a TIF feasibility study to determine how the City may finance transit-
supporting infrastructure, affordable housing and other community development goals in the Azusa
APPROVED
CITY COUNCIL
11/19/2018
RFP to conduct a Citywide Wayfinding Study and design a Wayfinding Sign Program
May 7, 2018
Page 2
TOD Specific Plan Area. The required services and performance requirements are described in the
Scope of Services selection of the RFP (Attachment 1).
Assuming multiple submittals are received by the City, a Selection Committee consisting of Staff from
the City Manager’s Office, Planning Division, and Economic Development Division will be formed to
evaluate the proposals according to the criteria described in the RFP (Attachment 1). The Committee’s
recommended applicant will be brought to a future meeting for City Council authorization. Upon
approval, the selected applicant will enter into a Professional Services Agreement with the City (Exhibit
A to Attachment 1). The proposed action authorizes Staff to solicit proposals from qualified consultants.
FISCAL IMPACT:
There is no fiscal impact to the City by authorizing Staff to solicit proposals. Once proposals are
received and reviewed by Staff, an agenda report will be provided to the City Council which will outline
potential fiscal impact. The program is reimbursement-based. Funding will be disbursed on a quarterly
basis subject to satisfactory compliance with the expenditure plan and schedule. The program will not
require local matching funds.
Prepared by: Reviewed and Approved:
Carina Campos Kurt Christiansen, FAICP
Economic Development Specialist Economic and Community Development Director
Reviewed and Approved:
Sergio Gonzalez
City Manager
Attachments:
1. RFP – Tax Increment Financing Feasibility Study
City of Azusa Request for Proposals:
For A Tax Increment Financing (TIF)
Feasibility Study
Proposals Due:
December 19, 2018
Contact:
Carina Campos
Economic and Community Development Department
City of Azusa
213 East Foothill Boulevard
Azusa, CA 91702
(626)812-5102
ccampos@azusaca.gov
Attachment 1
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 2
Table of Contents
I. Introduction 3
II. Background 3
III. Project Overview 3
IV. Scope of Services 4
V. Consultant’s Responsibilities 7
VI. Submittal Content 7
VII. Evaluation and Selection Process 8
VIII. Professional Services Agreement 9
IX. Submission of Proposals 9
X. General RFP Conditions 10
XI. Award of Contract 10
XII. Special Conditions 11
XIII. Attachment A: Grant Agreement 12
XIV. Attachment B: Professional Services Agreement
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 3
I. Introduction
The City of Azusa (“City”) is seeking a qualified professional consultant (“Consultant”) to submit
a written proposal to perform a Tax Increment Financing (TIF) feasibility study to determine how
the City may finance transit-supporting infrastructure, affordable housing and other community
development goals in the Azusa Transit Oriented Development (TOD) Specific Plan Area. This
effort is being undertaken as a result of the City receiving a grant from the Los Angeles County
Metropolitan Transportation Authority (Metro). This request invites qualified consultants to
submit qualifications for the items of work described in the scope of services.
II. Background
The City operates under the council/administration form of government. It is a full-service city
except for its Fire Department which is contracted with Los Angeles County Fire Department.
The City covers approximately 10 square miles and boasts a diverse population of over 48,000.
The estimated median household income is over $56,000. The City is proud of its mix of small
businesses, support services, manufacturers and large institutional employers such as Azusa
Pacific University. Azusa is home to two Metro Gold Line Light Rail Stations. The stations are
located in the heart of downtown, Azusa Downtown Station, and adjacent to Azusa Pacific
University and Citrus College, APU/Citrus College Station.
The City is strategically located off the 210 Freeway within a 30 minute drive to Pasadena,
Orange County, Inland Empire, and the Ontario International Airport. In addition to its
convenient freeway access, Azusa offers several major traffic corridors including the renowned
U.S. Route 66 (Foothill Boulevard) which runs east to west through the community. The
California State Route 39 runs north to the designated San Gabriel Mountains National
Monument and south to the beach.
III. Project Overview
On March 1, 2018, the Los Angeles County Metropolitan Transportation Authority (Metro)
Board of Directors awarded the City $141,000 to conduct a Tax Increment Financing District
Feasibility Study as part of Metro’s TOD Planning Grant Program Round 5.
The program objectives include:
• Supporting municipalities in implementing complimentary transit-supportive infrastructure
projects and affordable housing;
• Increasing transit ridership;
• Increasing the number of comprehensive, community-driven transit supportive planning
efforts around Metro light rail, Metrolink stations, and Metro Transitway/Bus Rapid Transit
stations and adjacent transit corridors in Los Angeles County;
• Improving local and regional efforts that enhance an equitable integration of transportation
and community planning;
• Improving the transit network and increase utilization of public transit by reducing the
number of modes of transportation necessary to access regional and local transit lines;
• Furthering the reduction in greenhouse gases through encouraging in-fill development along
transit corridors and transit use;
• Supporting and implementing sustainable development principles; and
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 4
• Increasing opportunities to meaningfully engage diverse stakeholders, especially
underserved and vulnerable communities, in advancing transit supportive planning efforts
across the region.
To learn more about the Transit Oriented Development Planning Grant Program Guidelines visit
the following link:
https://media.metro.net/projects_studies/joint_development/images/Round_5_Guidelines.pdf
To learn more about the Azusa Transit Oriented Development Specific Plan visit the following
link:
https://azusaca.gov/DocumentCenter/View/32522/Azusa-TOD-Specific-Plan?bidId
IV. Scope of Services
The City is seeking a consultant to perform a TIF feasibility study to determine how the
City/County may finance transit-supporting infrastructure, affordable housing and other
community development goals in the Azusa TOD Specific Plan Area study area. The TIF study
shall focus on two new TIF tools:
1. EIFD – Enhanced Infrastructure Financing Districts (SB628/AB313)
2. CRIA – Community Revitalization and Investment Act (AB2/AB2492)
As noted in Task 3, the Study may consider other benefit assessment districts if appropriate and
supported by the initial analysis conducted in Task 2. Additionally, the selected consultant shall
also reference and adhere to any EIFD/CRIA Board policy or criteria adopted by the County of
Los Angeles.
To access the EIFD/CRIA County policy visit the following link:
http://media.metro.net/projects_studies/tod/images/eifd_policy.pdf
Task 1: Develop Stakeholder Engagement Plan Duration: 3 Months
Working closely with the City/County, Consultant shall develop a stakeholder engagement plan
with the objectives of (1) determining stakeholder interest in and/or commitment to a TIF district
in the project area; (2) developing a vision for the district; and (3) identifying targeted
investments, projects and priorities for a TIF district in the project area to improve the
integration of public transportaiton systems and surrounding communities and to support an
increase in tranist ridership. The engagement plan should reference the tasks in the TIF
feasibility scope of work, noting key milestones for engaging stakeholders as the study
progresses.
The engagement plan shall be tailored to the project area, but will likely be a combination of
one-on-one interviews, small focus groups and larger community meetings/workshops, as well
as regular communication through email and social media.
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 5
The engagement plan should include mechanisms to ensure engagement of lower income and
disadvantaged communities, including meetings at varied times, translation of materials into
multiple languages, and translation services as needed.
The Community Engagement Plan should include/consider the following:
• A clear outreach plan that includes goals for the project, outreach methods chosen and
established schedule for meetings, workshops, social media presence
• Multiple modes of communication that include one-on-one meetings with key stakeholders
and community leaders, information meetings etc.
• Visualization tools to show the benefits through renderings, photo simulations, visual
preference surveys etc.
• Address equity and displacement concerns
Deliverables: Community Engagement plan
Task 2: Identify Boundaries and Initial Screening Criteria Duration: 6 Months
2.1 Determine boundary scenarios: Working with the City/County and community
stakeholders as identified in the outreach plan, identify no more than 3 sets of boundaries to
study for preliminary screening of eligibility for EIFD or CRIA. The boundaries chosen should
meet the screening criteria defined in the grant application and SCAG’s EIFD/CRIA Screening
Assistance Tool.
Deliverables: Maps and written descriptions of up to 3 boundary scenarios for consideration of
TIF and CRIA and concise written explanation for development of boundaries.
2.2 Initial TIF Screening: Using data available from SCAG’s EIFD/CRIA Screening
Assistance Tool, ArcGIS and other publicly available data sources, prepare a matrix of primary
screening criteria, including:
From SCAG Screening Assistance Tool:
• Current zoning and density in project area (including consideration of anticipated zoning
from land use planning updates underway)
• Project location and infrastructure needs (location in High -Quality Transit/Transit Priority
Area)
• Potential infrastructure financing solutions (property tax capture rate, eligibility for grant
funding)
• CRIA Eligibility (income, crime, unemployment stats, disadvantaged communities
designations)
• Whether the proposed EIFD boundaries overlap a former California Redevelopment Project
Area
From other sources:
• Economic Development potential (planned projects, existing parcel values)
• Technical screening (determine any former RDA project areas, existing ROPs obligations or
other bond/financing obligations)
EIFD/CRIA Successor Agency Prerequisites (finding of completion from DOF)
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 6
Much of this screening work will be provided to the consultant that was developed in the grant
application. However the data should be organized in a matrix and also any additional
boundaries/considerations post grant award should be screened.
Deliverables: Matrix showing TIF screening variables for each boundary scenario.
2.3 Strategic considerations: Identify quantitative and qualitative factors affecting TIF
feasibility, which may include:
• Market statistics
• Land ownership (public/private)
• Proposed developments
• Anticipated infrastructure investments (public transit, grant-funded projects, etc.)
Use the data to make final recommendations for which boundary scenario(s) should continue
into the next phase of analysis as well as determining whether the EIFD, CRIA or both forms of
TIF district should be studied. If other forms of benefit assessment district are appropriate
(Community Facilities District, BID, etc.) identify those.
Deliverables: Market and future investment analysis
Task 3: Tax Increment Analysis Duration: 7 Months
This task is focused on determining a range of tax increment or other benefit assessment district
funds could be generated upon formation of a district.
3.1 Revenue Generation. Key assumptions for the revenue generation analysis include:
• Analysis of no more than 3 different boundary scenarios and potential assessment districts,
(depending on outcome of Task 2).
• Taxing entity proportional shares should be current (redevelopment era shares were pre-
ERAF) and come from County Auditor-Controller.
• For TIF districts, include one set of revenues projections with both County and City
participation and one set with only City participation in tax increment.
• Project revenues at the 10, 20, 30 and 45-year timeframe.
• Provide some “But/For analysis,” i.e., is it likely that the proposed infrastructure projects
would not produce the subsequent growth in development without the EIFD/CRIA.
• Is the project viable without contributions from the other taxing entities?
Revenue generation assumptions should also meet any EIFD/CRIA criteria and policies adopted
by the Los Angeles County Board of Supervisors.
3.2 Bonding capacity. For each scenario, determine the bonding capacity of the TIF/assessment
revenue assuming that the governing authority bonds against the future proceeds.
Deliverables: Tax increment revenue and present value analysis
Task 4: Identify infrastructure needs Duration: 6 Months
4.1. Identify infrastructure and community development investments. Working with the
City/County and through the stakeholder engagement strategy, the consultant shall determine a
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 7
range of infrastructure and community development projects/programs, consistent with the
regulations for any assessment district, which could make up the funding plan for the TIF
district. The projects/programs shall include estimated funding needs whenever available.
The following documents should be used as references in the process of identifying community
development projects and programs:
• Azusa TOD Specific Plan
• Transit-Supportive Development Toolkit: 10 Characteristics of Transit-Supportive
Development
• Metro Countywide Sustainability policy
• First/Last Mile Strategic plan
• Green places Toolkit
Deliverable: Summary of potential infrastructure and community investment projects, with an
estimated range of costs.
4.2 Identify other funding sources. It is a reasonable assumption that the total desired
investment will exceed the net revenues generated by the TIF/special assessment district. The
consultant shall identify other funding sources that could be leveraged by the TIF district,
including grants, special district fees, development impact fees, and other public funding
sources.
Deliverable: Summary memo providing a rough order of magnitude funding plan for the TIF
district, inclusive of projects/programs, project costs and potential funding sources.
Task 5: Next Steps for Implementation Duration: 5 Months
Consultant shall prepare a summary memo outlining next steps for implementation, a timeline,
and a budget for the implementation activities. The memo should include recommendations for
the make-up of a Public Financing Authority/CRIA Board if either district is recommended and
identify other factors such as CEQA considerations and further community engagement. The
memo should function as a realistic action plan for moving forward.
Deliverables: Next Steps Summary Memo
V. Consultant’s Responsibilities
At the start of the project, the Consultant will meet with City Staff, Metro Staff and selected
individuals to discuss the approach and expectations. The Consultant will meet on a regular basis
with the Director of Economic and Community Development and City Staff to review the
progress of the work and to discuss any changes in direction or needed details. The Consultant is
required to submit a brief report on the progress made.
VI. Submittal Content
The following minimum information should be provided in each proposal and will be utilized in
evaluating each proposal submitted. To expedite the evaluation of proposals, submittals should be
no more than thirty (30) pages in length.
(a) Cover Letter
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 8
The cover letter should indicate the full name and address of the consulting firm
that will perform the services described in the RFP. The Consultant should
include the name and contact information for the individual who will serve as
project manager as well as the firm’s qualifications.
(b) Consultant’s Prior Experience and Qualifications
Provide a statement of qualifications. Provide examples of the last three (3)
completed projects demonstrating the consultant’s current experience working
with municipalities or other organizations similar in size, scope and purpose.
(c) References
Provide three (3) client references applicable to the scope of services. Include
contact names, telephone numbers and e-mail addresses.
(d) Organizational Chart
Identify all team members and their titles and responsibilities for the project.
(e) Team Member Resumes
Provide a resume for all team members.
(f) Management Overview and Approach
Explain the proposed methodology that will be used and clearly demonstrate
understanding of the objectives the project is intended to complete. The
Consultant should provide a detailed work plan and time line indicating how each
task under the Scope of Services will be accomplished.
(g) Fee Proposal
As part of the cost and price proposal, the Proposer(s) shall submit proposed
pricing to provide the services for each work task proposed in response to the
Scope of Work.
VII. Evaluation and Selection Process
The City is looking for a multi-disciplinary team that can assist the City in implementing the
vision of the grant. The selected consultant team should be well versed in all elements of the grant
effort. As part of the RFP, the Grant Agreement between the City and Metro will be included so a
clear understanding of the effort and expectations from Metro (as the funding source) can be
known. While the effort must follow the model and timing outlined in the Grant Agreement, the
City is open to discussing the best methods to achieve that end.
All proposals submitted will be reviewed and evaluated by the Evaluation Committee composed
of City Staff for further consideration on the basis of the following criteria:
• Consultant’s qualifications and experience;
• Consultant’s knowledge of best practices in municipalities;
• Consultant’s experience in completing projects similar in size, scope and purpose;
• Consultant’s understanding of the Scope of Services;
• Consultant’s detailed work plan to complete services;
• Qualifications and experience of team members;
• Overall quality of response to RFP; and
• Consultant’s fee proposal.
During the evaluation period, the City may interview some or all of the proposing firms. The
City will establish a specific date to conduct interviews, and all prospective Proposer(s) will be
asked to keep this date available. No other interview dates will be provided, therefore, if a
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 9
Proposer(s) is unable to attend the interview on this date, its proposal may be eliminated from
further discussion. The interview will likely consist of a short presentation by the Proposer(s)
after which the Proposal Evaluation Committee will ask questions related to the firm’s proposal
and qualifications. At the conclusion of the evaluation process, the Proposal Evaluation
Committee may recommend to the City Council, a Proposer(s) with the highest final ranking or a
short list of top ranked firms within the competitive range whose proposal(s) is most
advantageous to the City. The City Council will review the Proposal Evaluation Committee’s
recommendation and make the final selection.
VIII. Professional Services Agreement
The selected consultant will be required to enter into a Professional Services Agreement with the
City of Azusa which includes the City's standard Terms and Conditions including insurance
requirements (Attachment A).
IX. Submission of Proposals
Five (5) bounded copies and one (1) electronic copy of all proposals must be received in the City
of Azusa, City Clerk’s Office by December 19, 2018 at 5:30 p.m. It is the responsibility of the
Consultant to see that any proposal sent through mail, or any other delivery method, should have
sufficient time to be received by the City of Azusa, City Clerk’s Office prior to the proposal due
date and time. Late proposals will not be accepted. Proposals should be clearly marked and
submitted to:
City of Azusa
City Clerk’s Office
213 E. Foothill Blvd
Azusa, CA 91702
All inquiries to this proposal should be submitted via mail or e-mail to:
Carina Campos
Economic and Community Development Department
City of Azusa
213 E. Foothill Boulevard
Azusa, CA 91702
E-mail: ccampos@ci.azusa.ca.us
Interpretations or clarifications considered necessary in response to such questions will be
resolved by the issuance of formal Addenda to the RFP sent out by December 10, 2018 at 5:30
p.m. The deadline for all questions is December 3, 2018 at 5:30 p.m. Questions received after this
date and time will not be answered. Only questions that have been resolved in writing will be
binding. Oral and other interpretations or clarifications will be without legal or contractual effect.
Deadline to Submit Proposal December 19, 2018
Evaluation Committee Screens Proposals December 20 - 31, 2018
Tentative Award of Contract January 2019
X. General RFP Conditions
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 10
(a) The City reserves the right to accept or reject any and all proposals, or any item
or part thereof, or to waive any informalities or irregularities in proposals.
(b) The City reserves the right to withdraw or cancel this RFP at any time without
prior notice and the City makes no representations that any contract will be
awarded to any Proposer(s) responding to this RFP.
(c) The City reserves the right to postpone proposal openings for its own
convenience.
(d) Proposals received by the City are public information and must be made
available to any person upon request.
(e) Submitted proposals are not to be copyrighted.
(f) The City reserves the right to seek clarification of information submitted in
response to this RFP.
(g) The City reserves the right to modify the RFP as it deems necessary.
(h) Any material misrepresentations made by the Proposer(s) will void the proposal
response and eliminate the Proposer(s) from further consideration.
(i) Pre-Contractual Expense
The City shall not, in any event, be liable for any pre-contractual expenses incurred by
Proposer(s) in the preparation of its proposal. Proposer shall not include any such expenses
as part of its proposal.
Pre-contractual expenses are defined as expenses incurred by Proposer(s) in:
i. Preparing its proposal in response to this RFP;
ii. Submitting that proposal to the City;
iii. Negotiating with the City any matter related to this proposal; or
iv. Any other expenses incurred by Proposer(s) prior to date of award, if any.
(j) All materials submitted become the property of the City.
XI. Award of Contract
The City of Azusa will receive competitive proposals from agencies having specific experience
and qualifications in the areas identified in this solicitation. Under competitive negotiation
procedures, the terms of the service contract, the price of the service, the method of service
delivery, and the conditions of performance are all negotiable. A negotiated contract will be
awarded to the firm that best meets the proposed needs at a reasonable price, not necessarily at
the lowest price.
XII. Special Conditions
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 11
(a) The selected consultant firm must have a current vendor application and business
license on file with the City. Arrangements to complete those documents may be
made upon selection.
(b) The selected consultant will be responsible for attending any City Council, public
review and comment meetings.
(c) All documents shall become property of the City of Azusa upon completion of
the project.
(d) The fees for the services provided by the selected consultant firm or firms, billing
and invoice payment schedule shall be paid in accordance with the scheduled
outlined in the Grant Agreement subject to Metro review and approval.
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 12
ATTACHMENT A
GRANT AGREEMENT
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 13
ATTACHMENT B
SAMPLE
PROFESSIONAL SERVICES AGREEMENT
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 14
CITY OF AZUSA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this ____ day of ________________, 20___ by and
between the City of Azusa, a municipal corporation organized under the laws of the State of California
with its principal place of business at 213 East Foothill Boulevard, Azusa, California 91702 (“City”) and
[INSERT NAME OF COMPANY], a [INSERT TYPE OF BUSINESS: CORPORATION; LIMITED LIABILITY
COMPANY; ETC.] with its principal place of business at [INSERT ADDRESS] (“Consultant”). City and
Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional
services required by the City on the terms and conditions set forth in this Agreement. Consultant
represents that it is experienced in providing [INSERT TYPE OF SERVICES] services to public clients, is
licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the [INSERT NAME OF PROJECT]
project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City
all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and
adequately supply the professional [INSERT TYPE OF SERVICES] consulting services necessary for the
Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and
incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this
Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local,
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 15
state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from [INSERT START DATE] to
[INSERT ENDING DATE], unless earlier terminated as provided herein. Consultant shall complete the
Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
The Parties may, by mutual written consent, extend the term of this Agreement if necessary to complete
the Services.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services
shall be performed by Consultant or under its supervision. Consultant will determine the means, methods
and details of performing the Services subject to the requirements of this Agreement. City retains
Consultant on an independent contractor basis and not as an employee. Consultant retains the right to
perform similar or different services for others during the term of this Agreement. Any additional
personnel performing the 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.
3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit
“B” attached hereto and incorporated herein by reference. Consultant represents that it has the
professional and technical personnel required to perform the Services in conformance with such
conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to
Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provide a more
detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant
shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain
key personnel will perform and coordinate the Services under this Agreement. Should one or more of
such personnel become unavailable, Consultant may substitute other personnel of at least equal
competence upon written approval of City. In the event that City and Consultant cannot agree as to the
substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 16
below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or
who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project or a threat to the safety of persons or property, shall be promptly removed from
the Project by the Consultant at the request of the City. The key personnel for performance of this
Agreement are as follows: [INSERT NAMES].
3.2.5 City’s Representative. The City hereby designates [INSERT NAME OR TITLE], or
his or her designee, to act as its representative for the performance of this Agreement (“City’s
Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes
under this Contract. Consultant shall not accept direction or orders from any person other than the City’s
Representative or his or her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates [INSERT NAME OR
TITLE], or his/her designee, to act as its representative for the performance of this Agreement
(“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and
act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative
shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for
all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in
the performance of Services and shall be available to City’s staff, consultants and other staff at all
reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards generally
recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to perform the
Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and
experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees
and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are
legally required to perform the Services, including a City Business License, and that such licenses and
approvals shall be maintained throughout the term of this Agreement. As provided for in the
indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and
without reimbursement from the City, any services necessary to correct errors or omissions which are
caused by the Consultant’s failure to comply with the standard of care provided for herein. Any
employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative,
incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons
or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the
City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to
perform any of the Services or to work on the Project.
3.2.9 Period of Performance and Liquidated Damages. Consultant shall perform and
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complete all Services under this Agreement within the term set forth in Section 3.1.2 above
(“Performance Time”). Consultant shall also perform the Services in strict accordance with any
completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which
may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”).
Consultant agrees that if the Services are not completed within the aforementioned Performance Time
and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is
understood, acknowledged and agreed that the City will suffer damage. [***INCLUDE THE
FOLLOWING SENTENCE ONLY IF YOU'RE INCLUDING LD'S – DELETE OTHERWISE – DON'T
SIMPLY INSERT $0; ALSO DELETE “AND LIQUIDATED DAMAGES” FROM TITLE OF
SECTION***]Pursuant to Government Code Section 53069.85, Consultant shall pay to the City as fixed
and liquidated damages the sum of [***INSERT WRITTEN DOLLAR AMOUNT***] Dollars
($[***INSERT NUMERICAL DOLLAR AMOUNT***]) per day for each and every calendar day of
delay beyond the Performance Time or beyond any Project Milestones established pursuant to this
Agreement.
3.2.10 Laws and Regulations; Employee/Labor Certifications. Consultant shall keep
itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in
any manner affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all violations of
such laws and regulations in connection with Services. If the Consultant performs any work knowing it
to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant
shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold
City, its officials, directors, officers, employees and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any failure or
alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Consultant. By executing this Agreement,
Consultant verifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the Immigration
Reform and Control Act of 1986, as may be amended from time to time. Such requirements and
restrictions include, but are not limited to, examination and retention of documentation confirming the
identity and immigration status of each employee of the Consultant. Consultant also verifies that it has
not committed a violation of any such law within the five (5) years immediately preceding the date of
execution of this Agreement, and shall not violate any such law at any time during the term of the
Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by
participating in an electronic verification of work authorization program operated by the United States
Department of Homeland Security, by participating in an equivalent federal work authorization program
operated by the United States Department of Homeland Security to verify information of newly hired
employees, or by some other legally acceptable method. Consultant shall maintain records of each such
verification, and shall make them available to the City or its representatives for inspection and copy at any
time during normal business hours. The City shall not be responsible for any costs or expenses related to
Consultant’s compliance with the requirements provided for in Section 3.2.10 or any of its sub-sections.
3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Sub-subcontractors
and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall
require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work
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relating to the Project or this Agreement to make the same verifications and comply with all requirements
and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply. Each person executing this
Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and
understands that any of the following shall be grounds for the City to terminate the Agreement for cause:
(1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet
any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or
material omission concerning compliance with such requirements (including in those verifications
provided to the Consultant under Section 3.2.10.2); or (3) failure to immediately remove from the Project
any person found not to be in compliance with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Consultant certifies that
it is aware of the provisions of Section 3700 of the California Labor Code which 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.
3.2.10.5 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for
employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-
discrimination shall include, but not be limited to, all activities related to initial employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also
comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action
Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.2.10.6 Air Quality. To the extent applicable, Consultant must fully comply with
all applicable laws, rules and regulations in furnishing or using equipment and/or providing services,
including, but not limited to, emissions limits and permitting requirements imposed by the South Coast
Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although
the SCAQMD and CARB limits and requirements are more broad, Consultant shall specifically be aware
of their application to "portable equipment", which definition is considered by SCAQMD and CARB to
include any item of equipment with a fuel-powered engine. Consultant shall indemnify City against any
fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for
violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for
whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.7 Water Quality.
(A) Management and Compliance. To the extent applicable,
Consultant’s Services must account for, and fully comply with, all local, state and federal laws, rules and
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regulations that may impact water quality compliance, including, without limitation, all applicable
provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne
Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the
Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional
Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all
regulations, policies, or permits issued pursuant to any such authority regulating the discharge of
pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface
water in the State.
(B) Liability for Non-compliance. Failure to comply with the laws,
regulations and policies described in this Section is a violation of law that may subject Consultant or City
to penalties, fines, or additional regulatory requirements. Consultant shall defend, indemnify and hold the
City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or
other regulatory requirements imposed as a result of Consultant’s non-compliance with the laws,
regulations and policies described in this Section, unless such non-compliance is the result of the sole
established negligence, willful misconduct or active negligence of the City, its officials, officers, agents,
employees or authorized volunteers.
(C) Training. In addition to any other standard of care requirements
set forth in this Agreement, Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them without impacting water quality
in violation of the laws, regulations and policies described in this Section. Consultant further warrants that
it, its employees and subcontractors will receive adequate training, as determined by City, regarding the
requirements of the laws, regulations and policies described in this Section as they may relate to the
Services provided under this Agreement. Upon request, City will provide Consultant with a list of
training programs that meet the requirements of this paragraph.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not commence Services under
this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance
required under this section. In addition, Consultant shall not allow any subcontractor to commence work
on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has
secured all insurance required under this section.
3.2.11.2 Minimum Requirements. Consultant shall, at its expense, procure and
maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to
property which may arise from or in connection with the performance of the Agreement by the
Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of
its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such
insurance shall meet at least the following minimum levels of coverage:
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(A) Minimum Scope of Insurance. 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 (3) Workers’
Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of
California and Employer’s Liability Insurance. The policy shall not contain any exclusion contrary to the
Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual
liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by
one insured against another.
(B) Minimum Limits of Insurance. Consultant shall maintain limits
no less than: (1) General Liability: [CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT; TYPICAL
MINIMUM IS $1 MILLION, BUT AMOUNT OF INSURANCE REQUIRED DEPENDS ON NATURE OF CONTRACT
AND RISK TO CITY]$1,000,000 per occurrence for bodily injury, personal injury and property damage. If
Commercial General Liability Insurance or other form with general aggregate limit is used including, but
not limited to, form CG 2503, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2)
Automobile Liability: [CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT; TYPICAL MINIMUM IS $1
MILLION, BUT AMOUNT OF INSURANCE REQUIRED DEPENDS ON NATURE OF CONTRACT AND RISK TO
CITY]$1,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation
and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Liability limits of [CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT;
TYPICAL MINIMUM IS $1 MILLION, BUT AMOUNT OF INSURANCE REQUIRED DEPENDS ON NATURE OF
CONTRACT AND RISK TO CITY]$1,000,000 per accident for bodily injury or disease. Defense costs shall
be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least fifteen
(15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has
been renewed or extended shall be filed with the City. If such coverage is cancelled or materially
reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or
reduction of coverage, file with the City evidence of insurance showing that the required insurance has
been reinstated or has been provided through another insurance company or companies. In the event any
policy of insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by the City will be promptly reimbursed by Consultant or the City may
withhold amounts sufficient to pay premium from Consultant payments. In the alternative, the City may
suspend or terminate this Agreement.
3.2.11.3 Professional Liability. [INCLUDE THIS SUBSECTION ONLY IF
APPLICABLE - DELETE OTHERWISE] Consultant shall procure and maintain, and require its sub-
consultants to procure and maintain, for a period of five (5) years following completion of the Project,
errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an
amount not less than [CONTACT RISK MANAGEMENT TO CONFIRM AMOUNT; TYPICAL MINIMUM IS $1
MILLION, BUT AMOUNT OF INSURANCE REQUIRED DEPENDS ON NATURE OF CONTRACT AND RISK TO
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 21
CITY]$1,000,000 per claim, and shall be endorsed to include contractual liability. Defense costs shall be
paid in addition to limits.
3.2.11.4 Insurance Endorsements. The insurance policies shall contain the
following provisions, or Consultant shall provide endorsements on forms supplied or approved by the
City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include or be
endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing
the exact same coverage, the City of Azusa, its directors, officials, officers, employees, agents and
volunteers shall be covered as additional insured with respect to the Services or ongoing and complete
operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished
in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same
coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials,
officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage
excess of the Consultant’s scheduled underlying coverage. Any excess insurance shall contain a
provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the
City, before the City’s own primary insurance or self-insurance shall be called upon to protect it as a
named insured. Any insurance or self-insurance maintained by the 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 in any way. Notwithstanding the minimum limits set forth in Section
3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall
be available to the parties required to be named as additional insureds pursuant to this Section
3.2.11.4(A).
(B) Automobile Liability. The automobile liability policy shall
include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees,
agents and volunteers shall be covered as additional insureds with respect to the ownership, operation,
maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or
for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as
respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall
stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any
insurance or self-insurance maintained by the 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
in any way. Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance
proceeds in excess of the specified minimum limits of coverage shall be available to the parties required
to be named as additional insureds pursuant to this Section 3.2.11.4(B).
(C) Workers’ Compensation and Employers’ Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers,
employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from
work performed by the Consultant.
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(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or
canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by
certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with
reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage
provided to the City, its directors, officials, officers, employees, agents and volunteers. Any failure to
comply with reporting or other provisions of the policies including breaches of warranties shall not affect
coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other
additional insureds.
3.2.11.5 Separation of Insureds; No Special Limitations; Waiver of Subrogation.
All insurance required by this Section shall contain standard separation of insureds provisions. In
addition, such insurance shall not contain any special limitations on the scope of protection afforded to
the City, its directors, officials, officers, employees, agents and volunteers. All policies shall waive any
right of subrogation of the insurer against the City, its officials, officers, employees, agents, and
volunteers, or any other additional insureds, or shall specifically allow Consultant or others providing
insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss.
Consultant hereby waives its own right of recovery against City, its officials, officers, employees, agents,
and volunteers, or any other additional insureds, and shall require similar written express waivers and
insurance clauses from each of its subconsultants.
3.2.11.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the
option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2)
the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims
and administrative and defense expenses.
3.2.11.7 Subconsultant Insurance Requirements. Consultant shall not allow any
subconsultants to commence work on any subcontract relating to the work under the Agreement until they
have provided evidence satisfactory to the City that they have secured all insurance required under this
Section. If requested by Consultant, the City may approve different scopes or minimum limits of
insurance for particular subconsultants. The Consultant and the City shall be named as additional
insureds on all subconsultants’ policies of Commercial General Liability using ISO form 20 38, or
coverage at least as broad.
3.2.11.8 Acceptability of Insurers. 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
the City.
3.2.11.9 Verification of Coverage. Consultant shall furnish City with original
certificates of insurance and endorsements effecting coverage required by this Agreement on forms
satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a
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person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the
City if requested. All certificates and endorsements must be received and approved by the City before
work commences. The City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
3.2.11.9 Reporting of Claims. Consultant shall report to the City, in addition to
Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the
Services under this Agreement.
3.2.12 Safety. Consultant shall execute and maintain its work so as to avoid injury or
damage to any person or property. In carrying out its Services, the Consultant shall at all times be in
compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all
necessary precautions for the safety of employees appropriate to the nature of the work and the conditions
under which the work is to be performed. Safety precautions as applicable shall include, but shall not be
limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall
protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment
and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent
accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety
measures.
3.2.13 Accounting Records. Consultant shall maintain complete and accurate records
with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly
identifiable. Consultant shall allow a representative of City during normal business hours to examine,
audit, and make transcripts or copies of such records and any other documents created pursuant to this
Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities
related to the Agreement for a period of three (3) years from the date of final payment under this
Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized
reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C”
attached hereto and incorporated herein by reference. The total compensation shall not exceed [INSERT
WRITTEN DOLLAR AMOUNT] ($[INSERT NUMERICAL DOLLAR AMOUNT]) without written approval of the
City Manager [REPLACE ‘CITY MANAGER’ WITH ‘CITY COUNCIL’ FOR AMOUNTS OVER $10,000]. Extra
Work may be authorized, as described below, and if authorized, will be compensated at the rates and
manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized
statement which indicates work completed and hours of Services rendered by Consultant. The statement
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shall describe the amount of Services and supplies provided since the initial commencement date, or since
the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall,
within 45 days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request
that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined
by City to be necessary for the proper completion of the Project, but which the parties did not reasonably
anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be
compensated for, Extra Work without written authorization from City’s Representative.
3.3.5 Prevailing Wages. Consultant is aware of the requirements of California Labor
Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section
16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the
performance of other requirements on “public works” and “maintenance” projects. If the Services are
being performed as part of an applicable “public works” or “maintenance” project, as defined by the
Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully
comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing
rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies
of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute
the Services available to interested parties upon request, and shall post copies at the Consultant’s principal
place of business and at the project site. Consultant shall defend, indemnify and hold the City, its elected
officials, officers, employees and agents free and harmless from any claim or liability arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Consultant, terminate
the whole or any part of this Agreement at any time and without cause by giving written notice to
Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the
effective date of such termination. Upon termination, Consultant shall be compensated only for those
services which have been adequately rendered to City, and Consultant shall be entitled to no further
compensation. Consultant may not terminate this Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein, City
may require Consultant to provide all finished or unfinished Documents and Data and other information
of any kind prepared by Consultant in connection with the performance of Services under this Agreement.
Consultant shall be required to provide such document and other information within fifteen (15) days of
the request.
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3.4.3 Additional Services. In the event this Agreement is terminated in whole or in
part as provided herein, City may procure, upon such terms and in such manner as it may determine
appropriate, services similar to those terminated.
3.5 Ownership of Materials and Confidentiality.
3.5.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a
non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all
copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings,
estimates, and other documents or works of authorship fixed in any tangible medium of expression,
including but not limited to, physical drawings or data magnetically or otherwise recorded on computer
diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents
& Data”). All Documents & Data shall be and remain the property of City, and shall not be used in whole
or in substantial part by Consultant on other projects without the City's express written permission.
Within thirty (30) days following the completion, suspension, abandonment or termination of this
Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and
amount required by City. City reserves the right to select the method of document reproduction and to
establish where the reproduction will be accomplished. The reproduction expense shall be borne by City
at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which
the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all
Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to
retain or fail to provide to City any such documents pending resolution of the dispute. In addition,
Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years
following completion of the Project, and shall make copies available to City upon the payment of actual
reasonable duplication costs. Before destroying the Documents & Data following this retention period,
Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain
the documents.
3.5.2 Subcontractors. Consultant shall require all subcontractors to agree in writing
that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor
prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to
license any and all Documents & Data. Consultant makes no such representation and warranty in regard
to Documents & Data which were prepared by design professionals other than Consultant or its
subcontractors, or those provided to Consultant by the City.
3.5.3 Right to Use. City shall not be limited in any way in its use or reuse of the
Documents and Data or any part of them at any time for purposes of this Project or another project,
provided that any such use not within the purposes intended by this Agreement or on a project other than
this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses
the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from
the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and
employees from claims arising out of the negligent use or re-use of the Documents & Data on such other
project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this
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Agreement, only with respect to the condition of the Documents & Data at the time they are provided to
the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible
or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for
whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.5.4 Indemnification. Consultant shall defend, indemnify and hold the City, its
directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade
secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the
use on the Project by City of the Documents & Data, including any method, process, product, or concept
specified or depicted.
3.5.5 Confidentiality. All Documents & Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held confidential by
Consultant. All Documents & Data shall not, without the prior written consent of City, be used or
reproduced by Consultant for any purposes other than the performance of the Services. Consultant shall
not disclose, cause or facilitate the disclosure of the Documents & Data to any person or entity not
connected with the performance of the Services or the Project. Nothing furnished to Consultant which is
otherwise known to Consultant or is generally known, or has become known, to the related industry shall
be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or
any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television
or radio production or other similar medium without the prior written consent of City.
3.6 General Provisions.
3.6.1 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the respective
parties may provide in writing for this purpose:
Consultant:
[***INSERT NAME, ADDRESS & CONTACT PERSON***]
City:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: [***INSERT NAME & DEPARTMENT***]
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred,
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regardless of the method of service.
3.6.2 Indemnification.
3.6.2.1 Scope of Indemnity. To the fullest extent permitted by law, Consultant
shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and
agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability,
loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in
any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions of Consultant,
its officials, officers, employees, subcontractors, consultants or agents in connection with the performance
of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of
all consequential damages, expert witness fees and attorneys fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section
2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to
claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
Consultant.
3.6.2.2 Additional Indemnity Obligations. Consultant shall defend, with legal
counsel chosen by City, at Consultant’s own cost, expense and risk, any and all claims, actions or other
proceedings of every kind covered by Section 3.6.2.1 that may be brought or instituted against City or its
directors, officials, officers, employees, volunteers and agents. Consultant shall pay and satisfy any
judgment, award or decree that may be rendered against City or its directors, officials, officers,
employees, volunteers and agents as party of any such claim, suit, action or other proceeding. Consultant
shall also reimburse City for the cost of any settlement paid by City or its directors, officials, officers,
employees, agents, or volunteers as part of any such claim, suit, action or other proceeding. Such
reimbursement shall include payment for City’s attorneys’ fees and costs, including expert witness fees.
Consultant shall reimburse City and its directors, officials, officers, employees, agents, and/or volunteers,
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 survive expiration or
termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by the
City, its directors, officials officers, employees, agents, or volunteers.
3.6.3 Governing Law; Government Code Claim Compliance. This Agreement shall be
governed by the laws of the State of California. Venue shall be in Los Angeles County. In addition to
any and all contract requirements pertaining to notices of and requests for compensation or payment for
extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim
procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City.
Such Government Code claims and any subsequent lawsuit based upon the Government Code claims
shall be limited to those matters that remain unresolved after all procedures pertaining to extra work,
disputed work, claims, and/or changed conditions have been followed by Consultant. If no such
Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise
satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit
against the City.
3.6.4 Time of Essence. Time is of the essence for each and every provision of this
Agreement.
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3.6.5 City’s Right to Employ Other Consultants. City reserves right to employ other
consultants in connection with this Project.
3.6.6 Successors and Assigns. This Agreement shall be binding on the successors and
assigns of the parties.
3.6.7 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer,
either directly or by operation of law, this Agreement or any interest herein without the prior written
consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or
transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or
transfer.
3.6.8 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be construed
simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time,
days or period for performance shall be deemed calendar days and not work days. All references to
Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as
otherwise specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the
various articles and paragraphs are for convenience and ease of reference only, and do not define, limit,
augment, or describe the scope, content, or intent of this Agreement.
3.6.9 Amendment; Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.10 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.
3.6.11 No Third Party Beneficiaries. Except to the extent expressly provided for in
Section 3.6.7, there are no intended third party beneficiaries of any right or obligation assumed by the
Parties.
3.6.12 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
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3.6.13 Prohibited Interests. Consultant maintains and warrants that it has not employed
nor retained any company or person, other than a bona fide employee working solely for Consultant, to
solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay
any company or person, other than a bona fide employee working solely for Consultant, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the
award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or
subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under
state law in the performance of the Services. For breach or violation of this warranty, City shall have the
right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or
employee of City, during the term of his or her service with City, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.14 Cooperation; Further Acts. The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary, appropriate or
convenient to attain the purposes of this Agreement.
3.6.15 Attorney’s Fees. If either party commences an action against the other party,
either legal, administrative or otherwise, arising out of or in connection with this Agreement, the
prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable
attorney’s fees and all other costs of such action.
3.6.16 Authority to Enter Agreement. Consultant has all requisite power and authority
to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the
individuals who have signed this Agreement have the legal power, right, and authority to make this
Agreement and bind each respective Party.
3.6.17 Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
3.6.18 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.
3.6.19 Federal Provisions. [***INCLUDE THIS SECTION ONLY IF APPLICABLE;
DELETE OTHERWISE. IF APPLICABLE, YOU MAY ALSO NEED TO INCLUDE SOME
INFORMATION IN THE RFP. CONSULT THE CITY ATTORNEY IF NECESSARY***] When
funding for the Services is provided, in whole or in part, by an agency of the federal government,
Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal
Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With
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respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the
provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON NEXT PAGE]
City of Azusa RFP: For A Tax Increment Financing Feasibility Study | Page 31
CITY OF AZUSA [INSERT NAME OF CONSULTANT]
By: By:
City Manager [Up to $10,000]
OR Mayor [OVER $10,000]
Name:
Attest:
Title:
City Clerk
[If Corporation, TWO SIGNATURES, President
OR Vice President AND Secretary, AND
CORPORATE SEAL OF CONTRACTOR
REQUIRED]
Approved as to Form:
Best Best & Krieger LLP By:
Name:
City Attorney
Title: