11-041 Consultant Services Agreement,Keyser Marston, Vallco Redevelopment CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT is made at San Francisco, California, as of March 2, 2011 by and
between the CUPERTINO REDEVELOPMENT AGENCY ( "AGENCY "), and KEYSER MARSTON
ASSOCIATES, INC. ( "CONSULTANT "), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to Agency the services described in Exhibit "A ".
The parties to this Agreement agree that Consultant, in performing the services
described in Exhibit A, will not make any warranties or guarantees as to the future value of any real
or personal property, nor will it make any express warranties or guarantees of estimated or probable
construction cost or cost estimates being exceeded, nor will it guarantee the availability of funds or
specified rates of return and /or interest. Further, the parties agree that Consultant will not perform
services as a construction manager, appraiser of the fair market value of real estate, real estate
broker or agent, or property manager.
2. Payment. Agency shall pay Consultant for services rendered pursuant to this
Agreement at the time and in the manner set forth in Exhibit "B ". The payments specified in Exhibit
"B" shall be the only payments to be made to Consultant for services rendered pursuant to this
Agreement. Consultant shall submit all billings for said services to Agency in the manner specified in
Exhibit "B ".
3. Facilities and Equipment. Consultant shall, at its sole cost and expense, furnish all
facilities and equipment, which may be required for furnishing services pursuant to this Agreement.
4. General Provisions. The general provisions set forth in Exhibit "C" are part of this
Agreement. In the event of any inconsistency between said general provisions and any other terms
or conditions of this Agreement, the other term or condition shall control only insofar as it is
inconsistent with the general provisions.
5. Exhibits. All exhibits referred to herein are attached hereto and are by this reference
incorporated herein.
[SIGNATURES ON FOLLOWING PAGE]
EXECUTED as of the day first above - stated.
CUPERTINO REDEVELOPMENT AGENCY KEYSER MARSTON ASSOCIATES, INC.
By Lirj ( 1 l•( By /1 1*
David Knapp Debbie M. Kern
City Manager Vice President & Senior Principal
CITY A RNEY
By ��, , ✓� 4'' i A , &
Carol Korade
As to Form
2
EXHIBIT A
SCOPE OF SERVICES
Consultant shall prepare a Five Year Implementation Plan for the Cupertino Vallco Redevelopment
Project in accordance with the following approach and scope:
A. Approach
Preparation of the Implementation Plan will consist of three primary tasks:
• Task I will include the analyses and documentation required for the redevelopment portion of
the Implementation Plan including identifying projects and programs projected for the next
five years of the plan.
• Task II will include the analyses and documentation required to address the housing
components required for the Implementation Plan including the targeting of expenditures from
the Low and Moderate Income Housing Funcl, and production requirements.
While treated as separate phases, these two phases will be undertaken concurrently.
• Task III incorporates the analyses and work products developed in Tasks I and II into the
Preliminary Draft followed by the Public Review draft Implementation Plan for consideration
for approval at a public hearing.
In terms of process, Consultant will prepare a list of data needs. After Agency staff has provided
Consultant with all of the base information, Consultant will prepare a preliminary draft plan. The
preliminary draft will identify the Agency's obligations and resources, and a preliminary plan of future
projects and programs. Agency staff will provide comments to Consultant, and Consultant will then
prepare a Public Review Draft Implementation Plan, followed by a Final Implementation Plan.
Consultant will attend the public hearing on the Implementation Plan. At the Agency hearing on the
Implementation Plan adoption, the Agency can approve the Implementation Plan as drafted or may
direct staff to amend the Plan based upon input received at the hearing.
B. Scope
Task I — Redevelopment Component Analysis
1. Identify Project Area accomplishments
Consultant will summarize Agency accomplishments over the Project's past five years and blight
conditions that have been addressed based upon the prior adopted Implementation Plan and
3
discussions with staff. The intent is to give an overview of what the Agency has done over the course
of the Redevelopment Plan's effectiveness to alleviate blight and improve the Project Area.
2. Present Draft Tax Increment Projection
Consultant will present a projection of net property tax increment available to the Project Area. This
analysis will reflect the anticipated changes in the project area's assessed values due to new
developments and escalations of the existing base.
3. Document Project Area Expenditures for the 5 -year Period
Based on the Redevelopment Plan, prior Implementation Plan, discussions with Agency staff
regarding planned projects and programs, the analysis of available resources, and an analysis of
existing debt obligations, Consultant will prepare a projection of expenditures from 2011 through
2015.
Task II — Affordable Housing Analysis
Given that the Project Area was adopted in 2000, it is subject to the 15% affordable housing
inclusionary production requirements, the 20% affordable housing tax increment set -aside
requirement, age and income expenditure targeting requirements, and replacement housing
requirements. Additionally, the project is subject to the terms of a settlement agreement with
Cupertino Citizens for Affordable Housing. This agreement requires that 25% of gross increment be
set aside for affordable housing and other requirements that exceed standard CRL requirements.
1. Document Housing Production and Compliance Status
Using information to be provided by staff, Consultant will prepare a summary of past activities and
Project Area status in complying with the requirements of CRL Section 33413 and the Settlement
Agreement, including the following:
• A list of the income restricted units that include the covenants required to be counted as
inclusionary production housing units. Backup data required and to be provided by the
Agency will include the year built, the project name, total number of units, unit mix by number
of bedrooms, description of the affordability restrictions (covenant terms and level of
affordability), type of project (senior, family, etc.), if the units are within or outside of the
project areas and whether the housing is rental or ownership in type.
• An accounting of all of the new and substantially rehabilitated units that have been developed
within the Project Area since adoption.
4
2. Prepare Housing Production Plan (Section 33413)
Consultant assumes that the Agency's prior Implementation Plan accurately accounted for the CRL
Section 33413 (a), and (b) requirements. Based on that assumption, Consultant will identify the
Agency's outstanding inclusionary housing production obligations. In addition, Consultant will prepare
a housing production plan, meeting the requirements of CRL Section 33413 and the Settlement
Agreement that includes a plan for the ten -year period that meets the requirements for inclusionary
affordable housing, and includes the information listed below:
a. A projection of the number of new or substantially rehabilitated and price /income-
restricted housing units to be assisted by the Agency;
b. A projection of the new residential development anticipated to occur within the Project
Area;
c. A projection of the Agency's inclusionary requirements through 2015 and through the end
of the life of the redevelopment plan;
d. An estimate of the number of units occupied by very-low, low or moderate income
households that will be removed from the inventory as a result of Agency actions;
e. A projection of the number of new or substantially rehabilitated units through the
implementation plan period and through the Life of the Plan that will have the requisite
affordability covenants to count towards meeting the Agency's inclusionary housing
production obligations. This projection will demonstrate that the Agency will be in full
compliance with inclusionary requirements.
3. Document Housing Replacement Compliance Status
Using information to be provided by staff, Consultant will prepare a summary of past activities and
Project Area status in complying with the replacement housing requirements of CRL Section 33413,
including the following:
• A list of all units destroyed by Agency - related activities, including the year of destruction,
number of bedrooms in each unit, income level of displaced tenants, and what actions have
been taken to fulfill the replacement housing obligations.
• A list of the income restricted units that include the covenants required to be counted as
inclusionary replacement housing units. Backup data required and to be provided by the
Agency will include the year built, the project name, total number of units, unit mix by number
of bedrooms, description of the affordability restrictions (covenant terms and level of
affordability), type of project (senior, family, etc.), if the units are within or outside of the
project area and whether the housing is rental or ownership in type.
5
4. Prepare Housing Replacement Plan (Section 33413)
Any outstanding replacement housing obligation will be identified in the previous section. In
addition, Consultant will prepare, with the Agency's assistance, a replacement housing plan
to ensure the Agency meets its replacement housing obligations under CRL Section 33413
(a). The Plan will ensure the Agency provides replacement units for units demolished or
removed by any Agency- sponsored or Agency- assisted projects proposed during the five -
year period.
5. Prepare Housing Expenditure Plan
Beginning on January 1, 2002, redevelopment agencies are required to target the
expenditure of 20 percent Housing funds in proportion to the City's need for Very Low, Low,
and Moderate income housing. Under CRL Section 33334.4, the Agency must target its
Housing Fund expenditures to assist: (1) low and very low- income households in proportion
to the units needed to assist such households as determined by the regional fair share
allocation; and (2) all persons regardless of age in at least the same proportion as the
number of low income households with a member under age 65 bears to the total number of
low income households in the community as reported in the census. These "Housing Fund
Targeting Requirements" must be satisfied for 10 -year periods throughout the life of the Plan,
with the initial period extending 13 years, from January 2002 through December 2014. The
law requires an accounting of expenditures between 2002 and 2014, so we will need to
breakout the expenditures beginning in 2002.
a. Consultant will prepare, with Agency assistance, a projection of the Housing Set -
Aside revenues to be received and expended by the Agency through 2015. This
projection will estimate expenditures on administrative costs, debt service, and any
existing housing obligations. Projected annual expenditures will be stratified based on
both income level and age restriction to demonstrate the Agency's compliance with
the income and age targeting requirements imposed by CRL Section 33334.4.
b. In the event that the Agency is currently in a state of "excess surplus" or anticipated to
enter "excess surplus" during the implementation Plan period, Consultant will address
the issue in the Implementation Plan and work with the Agency to establish a plan for
elimination of any excess surplus.
Task 111 — Presentation and Adoption of Implementation Plan
1. Preliminary Draft
Consultant will integrate the redevelopment and housing analyses into a Preliminary Draft
Implementation Plan for staff's review. The Public Review Draft Implementation Plan will be
prepared following the public workshop and will reflect/incorporate public input.
6
2. Present Implementation Plan and Respond to Comments
After the Implementation Plan has been reviewed by staff and finalized, Consultant will
present the Implementation Plan at the Agency hearing. If necessary, the Implementation
Plan will be amended in response to comments received at the hearing.
Timeline
The schedule for completing the Implementation Plan will be driven by the date that we receive
the necessary data from staff. The following is the anticipated schedule, assuming that we
receive all of the requested data by no later than March 4th.
Staff to provide Consultant with requested information: March 4, 2011
Consultant to prepare 1st Draft of Implementation Plan: March 25, 2011
Staff provides comments on 1st Draft: April 1, 2011
Staff publishes 1st notice of public hearing: April 2, 2011
Consultant prepares Final Draft of Implementation Plan April 8, 2011
Staff publishes 2nd notice of public hearing: April 9, 2011
Staff publishes 3rd notice of public hearing: April 16, 2011
Consultant attends Public Hearing May 3, 2011
7
EXHIBIT B
COMPENSATION
The scope and fee estimates have been prepared based on a review of the Five -Year
Implementation Plan that was prepared in 2006 and our experience in preparing Implementation
Plans for other redevelopment agencies. All services will be provided on a time -and- material basis in
accordance with the following 2010/11 fee schedule:
A. Jerry Keyser* $280.00
Managing Principals* $280.00
Senior Principals* $270.00
Principals* $250.00
Managers* $225.00
Senior Associates $187.50
Associates $167.50
Senior Analysts $150.00
Analysts $130.00
Technical Staff $ 95.00
Administrative Staff $ 80.00
Directly related job expenses not included in the above rates are: Auto mileage, air fares,
hotels and motels, meals, car rentals, taxies, telephone calls, delivery, electronic data processing,
graphics and printing. Directly related job expenses will be billed at 110% of cost.
MAXIMUM COMPENSATION
The total compensation for all services performed pursuant to this Agreement shall not
exceed the sum of TWENTY -FIVE THOUSAND DOLLARS ($25,000.00), without prior approval of
the Agency.
METHOD OF PAYMENT
Consultant shall submit monthly requisitions to Agency specifying the amount due for
services performed by Consultant's staff and a list of incurred expenses for the past calendar month.
Upon approval of the services performed and the requisition, Agency shall pay Consultant in
accordance with such requisition up to the agreed -upon maximum.
Monthly billings will be payable within thirty (30) days of invoice date. A charge of 1% per
month will be added to all past due accounts.
*Rates for individuals in these categories will be increased by 50% for time spent in court testimony
8
EXHIBIT C
GENERAL PROVISIONS
1. Independent Contractor. At all times during the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of Agency. Agency shall have the
right to control Consultant only insofar as the results of Consultant's services rendered pursuant to
this Agreement; however, Agency shall not have the right to control the means by which Consultant
accomplishes services rendered pursuant to this Agreement.
2. Time. Consultant shall devote such time to the performance of services pursuant to
this Agreement as may be reasonably necessary for satisfactory performance of Consultant's obli-
gations pursuant to this Agreement.
3. Consultant's Liability. The Consultant shall be responsible for all injuries to persons
and for all damage to real or personal property of the Agency or others, caused by or resulting from
the negligence of itself, its employees, or its agents during the progress of or connected with the
rendition of services hereunder. Consultant shall defend and hold harmless and indemnify the
Agency, the City, and all officers and employees of both public agencies from all costs and claims for
damages to real or personal property, or personal injury to any third party, resulting from the
negligence of itself, its employees, or its agents, arising out of the Consultant's performance of work
under this Agreement.
4. Equal Employment Opportunity. During the performance of this Agreement, the
Consultant agrees as follows:
a. The Consultant will not discriminate against any employee or applicant for
employment because of race, color, age, religion, sex, sexual orientation, national origin, or physical
handicap. The Consultant will take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race, color, age, religion, sex,
sexual orientation, national origin, or physical handicap. Such action shall include, but not be limited
to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and
applicants for employment, notice setting forth the provisions of this non - discrimination clause.
b. The Consultant will, in all solicitations or advertisements for employees placed by or
on behalf of the Consultant state that all qualified applicants will receive consideration for
employment without regard to race, color, religion, sex, age, national origin, or physical handicap.
c. The Consultant will cause the foregoing provisions to be inserted in all subcontracts
for any work covered by this Agreement, provided that the foregoing provisions shall not apply to
contracts or subcontracts for standard commercial supplies or raw materials.
9
5. Consultant Not Agent. Except as Agency may specify in writing, Consultant shall
have no authority, express or implied, to act on behalf of Agency in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind
Agency to any obligation whatsoever.
6. Products of Consulting. All products of consulting shall become the property of the
Agency and shall be delivered to the Agency before the end of performance under this Agreement.
7. Assignment Prohibited. No party to this Agreement may assign any right or obligation
pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pur-
suant to this Agreement shall be void and of no effect:.
8. Changes. The Agency may, from time to time, request changes in the Scope of
Services of the Agreement to be performed hereunder. Such changes, including any increase or
decrease in the amount of Consultant's compensation, which are mutually agreed upon by and
between the Agency and the Consultant, shall be incorporated in written amendments to this
Agreement.
9. Termination. This Agreement may be terminated by either party on thirty (30) days
written notice to the other. The effective date of cancellation being the 30th day of said written notice.
Consultant shall be entitled to the compensation earned by it prior to the date of termination,
computed pro rata up to and including the date of termination.
10. Attorney's Fees. In the event that it becomes necessary for either party to this
Agreement to bring a legal suit to enforce any of the provisions of this Agreement, the parties agree
that a court of competent jurisdiction may determine and fix reasonable attorney fees to be paid the
successful litigant.
11. Notices: All notices, demands, requests, consents or other communications which
this Agreement contemplates or authorizes, or requires or permits either party to give to the other,
shall be in writing and shall be personally delivered or mailed to the respective party as follows:
To City: To Consultant:
Kelly Kline Debbie M. Kern, Vice President
Redevelopment/Economic Development Manager Keyser Marston Associates, Inc.
Cupertino Redevelopment Agency 55 Pacific Avenue Mall
10300 Torre Avenue San Francisco, CA 94111
Cupertino, CA 95014 -3255 Tel: 415- 398 -3050
Tel: 408 - 777 -3286
10