14-177 Keyser Marston Associates Inc for Fiscal and School Impact Evaluation OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE•CUPERTINO,CA 95014-3255
Ila TELEPHONE:(408)777-3223•FAX: (408)777-3366
C U P E RT I N® WEBSITE:www.cupertino.org
December 11, 2014
Keyser Marston Associates, Inc
160 Pacific Avenue, Suite 204
San Francisco, CA 94111
Re: Agreement for consultant services for Fiscal and School Impact Evaluation for the
Vallco Shopping Center Redevelopment Project.
A fully executed copy of the agreement for consultant services with the City of
Cupertino is enclosed. If you have any questions or need additional information, please
contact the Community Development Department at (408) 777-3308.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Community Development
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND KEYSER
MARSTON ASSOCIATES INC, FOR CONSULTANT SERVICES FOR
FISCAL AND SCHOOL IMPACT. EVALUATION FOR THE VALLCO
SHOPPING CENTER REDEVELOPMENT PROJECT
THIS AGREEMENT, for reference dated November 24111, 2014, is by and
etween CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
V as "City"), and Keyser Marston Associates, Inc, a California corporation, whose
Y P
address is 160 Pacific Avenue, Suite 204, San Francisco, California 94111
(hereinafter referred to as "Consultant"), and is made with reference to the
following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the Constitution and the statutes of the State
of California and the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement
on the terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for a fiscal
and school impact evaluation of the Vallco Shopping Center Redevelopment
Project upon the terms and conditions herein.
NOW, , THEREFORE,, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on November 24th, 2014, and
shall terminate on lune 301h, 2015, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A"
which is attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated-for services performed pursuant to this
Agreement in the amount set forth in Exhibit "A" which is attached hereto and
incorporated herein by this reference. Payment shall be made by checks drawn
on the treasury of the City, to be taken from the 110-2211, BS 25292 fund, not to
exceed TEN THOUSAND FIVE HUNDRED DOLLARS ($10,500).
4. TIME IS OF THE ESSENCE:
Consultant and City agree. that time is of the essence regarding the
performance of this Agreement.
5. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of like professionals in the San
Francisco Bay Area and agrees that all services shall be performed by qualified
and experienced personnel who are not employed by the City nor have any
contractual relationship with City.
6. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by
this Agreement is that of employer-independent contractor. The manner and
means of conducting the work are under the control of Consultant, except to the
extent they are limited by statute, rule or regulation and the express terms of this
Agreement. No civil service status or other right of employment will be acquired
by virtue of Consultant's services. None of the benefits provided by City to its
employees, including but not limited to, unemployment insurance, workers'
compensation plans, vacation and sick leave are available from City to
Consultant, its employees or agents. Deductions shall not be made for any state
or federal taxes, FICA payments, PERS payments, or other purposes normally
associated with an employer-employee relationship from any fees due
Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity
and employment authorization of all of his/her employees performing work
hereunder, pursuant to all applicable IBCA or other federal, or state rules and
regulations. Consultant shall indemnify and hold City harmless from and
against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Consultant.
S. NON-DISCRIMINATION:
Consistent with- City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Consultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race,
religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual 'orientation will not be tolerated.
Consultant agrees that any and all violations of this provision shall constitute a
material breach of this Agreement.
9. HOLD HARMLESS:
Indemnification:
Consultant shall, to the fullest extent allowed by law, with respect to all services
performed in connection with the Agreement, indemnify, defend, and hold
harmless the City and its officers, officials, agents, employees and volunteers
from and against any and all liability, claims, actions, causes of action or
demands whatsoever against any of them, including any injury to or death of
any person or damage to property or other liability of any nature, whether
physical, emotional, consequential or otherwise, arising out, pertaining to, or
related to the negligent performance of this Agreement by Consultant or
Consultant's employees, officers, officials, agents or independent contractors.
Such costs and expenses shall include reasonable attorneys' fees of counsel of
City's choice, expert fees and all other costs and fees of litigation.
A. Claims for Professional Liability. Where the law establishes a standard
of care for Consultant's professional services, and to the extent the
Consultant breaches or fails to meet such established standard of care, or
is alleged to have breached or failed to meet such standard of care,
Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Consultant or
Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation. Consultant shall not be obligated under this Agreement to
indemnify, City to the extent that the damage is caused by the sole
negligence or willful misconduct of City,its agents or employees.
B. Claims for Other Liability. Consultant shall, to the fullest extent
allowed by law, with respect to all services performed in connection with
the Agreement indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers from and against any
and all liability, claims, actions, causes of action or demands whatsoever
against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of,
pertain to, or relate to the negligence, recklessness or willful misconduct
of consultant in the performance of this Agreement by Consultant or
Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation.
10. INSURANCE:
On or before the commencement of the term of this Agreement,
Consultant shall furnish City with certificates showing the type, amount class of
operations covered, effective dates and dates of expiration of insurance coverage
in compliance with paragraphs 10A, B, 'C, D and E. Such certificates, which do
not limit Consultant's indemnification, shall also contain substantially the
following statement: . "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the
insurer affording coverage shall provide thirty (30) days' advance written notice
to the City of Cupertino by certified mail, Attention: City Manager." It is agreed
that Consultant shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement
with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabili :
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate- all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of $1,000,000 will be considered
equivalent to the required minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the
following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for
theP rofessional acts errors and omissions of Consultant in
the amount of at least$1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for
which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing
comprehensive eneral and automotive liability insurance to either Consultant or
g ty
City with respect to the services of Consultant herein, a waiver of any right to
subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or
maintain the foregoing 'insurance, City shall be permitted to obtain such
insurance in the Consultant's name or as an agent of the Consultant and shall be
compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is
received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance
coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to
which such additional insured would be entitled under this policy if not named
as such additional insured. An additional insured named herein shall not be
held liable for any premium, deductible portion of any loss, or expense of any
nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being
sufficient to. protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
11. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to
perform the services required by this Agreement. Consultant may be required to
fill out a conflict of interest form if the services provided under this Agreement
require Consultant to make certain governmental decisions or serve in a staff
capacity as defined in Title 2, Division 6, Section 18700 of the California Code of
Regulations.
12. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this
Agreement, or any interest therein, directly or indirectly, by operation of law or
otherwise, without prior written consent of City. Any attempt to do so without
said consent shall be null and void, and any assignee, sublessee, hypothecate or
transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by
Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock`of Consultant, or of the interest of any general partner
or.joint venturer or syndicate member or cotenant, if Consultant is a partnership
or joint venture or syndicate or cotenancy, which shall result in changing the
control of Consultant, shall be construed as an assignment of this Agreement.
Control means fifty percent (50%) or more of the voting power of the
corporation.
13. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names and resumes,are attached to this Agreement shall
be used in the performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors
shall be required to furnish proof of workers' compensation insurance and shall
also be required to carry general, automobile and professional liability insurance
in reasonable conformity to the insurance carried by Consultant. In addition,
any work or services subcontracted hereunder shall be subject to each provision
of this Agreement.
14. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain-during the
term of this Agreement, all appropriate permits, certificates and licenses
including, but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
15. REPORTS:
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as 'Report", reproduced, prepared
or caused to be prepared by Consultant pursuant to or in connection with this
Agreement, shall be the exclusive property of City. Consultant shall not
copyright any Report required by this Agreement and shall execute appropriate
documents to assign to City the copyright to Reports created pursuant to this
Agreement. Any Report, information and data acquired or required by this
Agreement shall become the property of City, and all publication rights are
reserved to City. Consultant may retain a copy of any report furnished to the
City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in
execution or implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may
require, furnish reports concerning the status of services required under this
Agreement.
D. All Reports required to be provided by this Agreement shall be
printed on recycled paper. All Reports shall be copied on both sides of the paper
except for one original, which shall be single sided.
E. No Report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Consultant without prior approval by City.
16. RECORDS:
Consultant shall maintain complete.and accurate records with respect to
sales, costs, expenses, receipts and other such information required by City that
relate to the performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in
sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. Consultant shall provide free
access to such books and records to the representatives of City or its designees at
all proper times, and gives City the right to examine and audit same, and to
make transcripts therefrom as necessary, and to allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
If supplemental examination or audit of the records is necessary due to
concerns raised by City's preliminary examination or audit of records, and the
City's supplemental examination or audit of the records discloses a failure to
adhere to appropriate internal financial controls, or other breach of contract or
failure to act in good faith, then Consultant shall reimburse City for all
reasonable costs and expenses associated with the supplemental examination or
audit.
17. NOTICES:
All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second business day after the deposit
thereof in the United States Mail, postage prepaid, registered or certified,
addressed as hereinafter
provided.
All notices, demands, requests, or approvals from Consultant to City shall
be addressed to City at:
City of Cupertino
10300 Torre Avenue
Cupertino CA 95014
Attention: Aarti Shrivastava
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
Keyser Marston Associates, Inc.
160 Pacific Avenue, Suite 204
San Francisco, CA 94111
18. TERMINATION:
In the event Consultant .fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, Consultant shall be
deemed in default in the performance of this Agreement. If such default is not
cured within within the time specified after receipt by Consultant from City of
written notice of default, specifying the nature of such default and the steps
necessary to cure such default, City may terminate the Agreement forthwith by
giving to the Consultant written notice thereof.
City. shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to
Consultant as provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
19. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
20. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of
the State of California excepting any choice of law rules which may direct the
application of laws of another jurisdiction. The Agreement and obligations of the
parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those
authorities.)
Any suits brought pursuant to this Agreement shall be filed with the
courts of the County of Santa Clara, State of California.
21. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any
kind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
22. WAIVER:
A waiver by City of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained herein, whether of
the same or a different character.
23. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all. preliminary
negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions
hereof. Any modification of this Agreement will be effective only by written
execution signed by both City and Consultant.
24. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the
Agreement shall be deemed to be enacted herein, and the Agreement shall be
read and enforced as though each were included herein. If through mistake or
otherwise, any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertion on application by either
party.
25. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit or amplify the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
CONSULTANT CITY OF CUPERTINO
Keyser Marton Associates, Inc. A Municipal Corporation
B lam-- By
Title Title enior Planner
Date ( 1-.2 f / f Date
RECOMM ND OR APPROVAL:
/;7Tssist. irector, Comm Development
APPRO ED S TO ORM:
ro orade, City Attorney
AT 1T:
n9e
Grace Schmidt, City Clerk
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
110-2211, BS 25292 1� l ¢
Total: $10,500.00 / ��
fD Exhibit A
n�
=KEYSER MARSTONASSO+CIATES,n.
ApY15QRS tl:I,: U:641CrPRlIiATI`REi�I ESTATE DE0L6PMVi4T
November 17, 2014
ADvISORsIN: Aarti Shrivastava
REAL ESTATE
AFFORDABLE HOUSING Assistant City Manager
ECONOMIC DEVELOPMENT City of Cupertino
SAN FRANCISCO 10300 Torre Avenue
A.JERRY KEYSER Cupertino, CA 95014
TIMOTHY C.KELLY
KATE EARLE FUNK
DEBBIE M.KERN Re: Proposal to Evaluate Local School and City tax revenues to be generated by
REED T.KAWAHARA
DAVID DOEZEMA the redevelopment of Vallco Shopping Center
LOS ANGELES
KATHLEEN H.HEAD Dear Ms. Shrivastava:
JAMES A.RABE -
GREGORY D.Soo-Hoo
KEVIN E.ENGSTROM Thank you for requesting this letter proposal from Keyser Marston Associates, Inc.
JULIE L.ROMEY (KMA) to provide an order of magnitude estimate of the amount of annual tax revenue
SAN DIEGO that will be generated from the future redevelopment of the Vallco Shopping Center.
PAUL C.MARRA KMA will estimate the tax revenues that will accrue to the K-12 school districts that serve
the area and the City of Cupertino.
Analysis of School District Impacts
It is our understanding that two school districts serve the area and that the districts have
undertaken an assessment of the impact that the Vallco redevelopment would have on
student count, need for new facilities, cost of new facilities, annual revenues and annual
expenses. This report will be made available to KMA.
KMA will estimate the annual net new property tax revenue that will accrue to the two
school districts upon the completion of the Vallco project. Using annual operating data
contained in the school district reports, KMA will estimate the annual operating costs to
the districts. Using impact fee estimates to be provided by City staff and the school
report's data on facility needs/costs, KMA will address the likely net cost to the districts
to construct additional facilities to serve the new students living in the Vallco project.
Analysis of City Impacts
KMA will estimate the magnitude of the major direct City tax revenues to be generated
by the Vallco project. These include: annual property taxes, property taxes in-lieu of
160 PACIFIC AVENUE,SUITE 204'r' SAN FRANCISCO,CALIFORNIA 94111 ➢ PHONE:415 398 3050 7 FAX:415 397 5065
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Aarti Shrivastava November 17, 2014
City of Cupertino Page 2
motor vehicle fees, and sales tax revenue to be generated by the 600,000 square feet of
retail space to be included in the Vallco project. The analysis will include only those tax
revenues that are directly generated by the on-site businesses, not indirect or induced
tax revenues. For example, sales tax revenues generated by the residents and
employees from purchases elsewhere in Cupertino will not be evaluated. The amount of
tax revenue currently generated by the property will be deducted to estimate the
magnitude of net new tax revenues.
Schedule, Deliverables, and Budget
KMA will complete a draft analysis and provide a brief memorandum summarizing the
findings of the analysis by November 24th provided that the information requested in this
proposal is provided by the close of business on Monday, November 17. Following
receipt of comments by City staff, KMA will revise the analysis and memorandum,
accordingly. KMA is prepared to undertake the services described above on a time and
materials basis with the total fee to not exceed $10,500.
Data Needs
1. List of assessor parcel numbers for each parcel to be included in the analysis;
2. Redevelopment program to be the subject of the evaluation. The program shall
include the following detail:
■ Number, tenure, and average size of residential units;
■ Density of residential units, building height, parking configuration;
■ Breakdown of retail program by type of retail: amount and mix of
entertainment uses; square footage of big box retail uses; restaurant square
footage; square footage and conceptual layout of other retail space;
■ Square footage of Class A offices space, conceptual building dimensions,
3. Annual taxable volume of retail stores currently located on subject Vallco parcels;
4. Annual taxable volume of retail stores currently located on subject Vallco parcels
that will remain or be relocated within the new Vallco project;
5. Estimate of impact fee revenues to be generated by the Vallco project;
6. Copy of the school district report containing student generation factors, facility
needs and costs, annual tax revenue projections, and annual operating cost
projections.
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Aarti Shrivastava November 17, 2014
City of Cupertino Page 3
We look forward to assisting you on this effort. Please call me with any questions or
comments.
Sincerely,
KEYSER MARSTON ASSOCIATES, INC.
Debbie M. Kern
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