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HomeMy WebLinkAbout2018 CON HA Keyser Marston Associates - Consulting Services Morgan & Kimball Tower Rehabilitation (2)ORIGINAL AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AND KEYSER MARSTON ASSOCIATES, INC. THIS AGREEMENT is entered into on this 1st Day of December 2018 by and between the THE COMMUNITY DEVELOPMENT COMMISSION - HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY, a municipal corporation (the "CDC -HA"), and KEYSER MARSTON ASSOCIATES, INC, economic consultant (the "CONSULTANT"). RECITALS WHEREAS, the CDC -HA desires to employ a CONSULTANT to provide consulting services related to the solicitation, evaluation, and negotiation of a housing developer for the Kimball and Morgan Towers Rehabilitation and Recapitilization Project. WHEREAS, the CDC -HA has determined that the CONSULTANT is a economic consulting service and is qualified by experience and ability to perform the services desired by the CDC -HA, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CDC -HA agrees to engage the CONSULTANT to assist the CDC -HA in its efforts to select and affordable housing developer to refinance and renovate the Kimball and Morgan Towers, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective as of the date of execution by the CDC -HA and expires on December 30, 2019. Completion dates or time durations for specific portions of the project are set forth in Exhibit "A". This Agreement may be extended by mutual agreement upon the same terms and conditions for an additional one (1) year term. The Parties may exercise up to three one-year extensions. Any extension of this Agreement must be approved in writing by the Executive Director of the CDC -HA. 3. SCOPE OF SERVICES. The CONSULTANT will perform services as set forth in the attached Exhibit "A". The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CDC -HA for such services, except as authorized in advance by the CDC -HA. The CONSULTANT shall appear at meetings specified in Exhibit "A" to keep staff and CDC -HA Council advised of the progress on the project. I A 141 1 im The CDC -HA may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CDC -HA and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services. 4. PROJECT COORDINATION AND SUPERVISION. Carlos Aguirre, Housing and Economic Development Manager, hereby is designated as the Project Coordinator for the CDC -HA and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Paul C. Marra thereby is designated as the Project Director for the CONSULTANT. 5. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be based on monthly billings covering actual work performed. Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit "A" shall not exceed $25,000.00. The compensation for the CONSULTANT'S work shall not exceed the rates set forth in Exhibit "B". Monthly invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit "A", as determined by the CDC -HA. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CDC - HA, and for furnishing of copies to the CDC -HA, if requested. 6. ACCEPTABILITY OF WORK. The CDC -HA shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the CDC -HA cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the CDC -HA or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the CDC -HA shall each prepare a report which supports their position and file the same with the other party. The CDC - HA shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this project, whether paper or electronic, shall become the property of the CDC -HA for use with respect to this project, and shall be turned over to the CDC -HA upon completion of the project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CDC -HA, and CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CDC-HA'S prior authorization Standard Agreement Page 2 of 11 CDC -HA and July 2017 Keyser Marston Assoc. regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CDC -HA, execute any further document(s) necessary to further effectuate this waiver and disclaimer.The CONSULTANT agrees that the CDC -HA may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT'S written work product for the CDC-HA'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CDC -HA of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Section 14, but only with respect to the effect of the modification or reuse by the CDC - HA, or for any liability to the CDC -HA should the documents be used by the CDC -HA for some project other than what was expressly agreed upon within the Scope of Services of this project, unless otherwise mutually agreed. 8. I_NDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity from CDC -HA and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CDC -HA, and are not entitled to any of the rights, benefits, or privileges of the CDC-HA'S employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CDC -HA for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CDC -HA. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or SUBCONSULTANTS, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its SUBCONSULTANT(S) shall require the SUBCONSULTANT(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CDC -HA nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as herein set forth, and the CONSULTANT or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CDC -HA, it being understood that the CONSULTANT its agents, servants, and employees are as to the CDC - HA wholly independent CONSULTANT, and that the CONSULTANT'S obligations to the CDC -HA are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. Standard Agreement Page 3 of 11 CDC -HA and July 2017 Keyser Marston Assoc. 11. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 12. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CDC -HA that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CDC -HA, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CDC -HA otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CDC -HA are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -paragraph will render the CONSULTANT liable to the CDC -HA for any increased costs that result from the CDC-HA's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, 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 any notices provided by the CDC -HA setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The CDC -HA may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT Standard Agreement Page 4 of 11 CDC -HA and July 2017 Keyser Marston Assoc. shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CDC -HA. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CDC -HA. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CDC -HA for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT agrees to defend, indemnify and hold harmless the CDC -HA of National CDC -HA, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S negligence or willful misconduct in the performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CDC -HA, its agents, officers, employees or volunteers. CDC -HA will cooperate reasonably in the defense of any action, and CONSULTANT shall employ competent counsel, reasonably acceptable to the CDC -HA Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 16. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CDC -HA and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CDC -HA or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. Standard Agreement July 2017 Page 5 of 11 CDC -HA and Keyser Marston Assoc. 17. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following checked insurance policies: A. ® If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CDC -HA and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CDC -HA and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specifiCDC-HA on an endorsement that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CDC -HA. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CDC -HA. E. The aforesaid policies shall constitute primary insurance as to the CDC - HA, its officers, officials, employees, and volunteers, so that any other policies held by the CDC - HA shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CDC -HA of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CDC-HA'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. H. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CDC-HA'S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CDC -HA may Standard Agreement Page 6 of 11 CDC -HA and July 2017 Keyser Marston Assoc. elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CDC -HA. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CDC -HA shall, in addition, be limited to the amount of attorney's fees incurred by the CDC -HA in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. TERMINATION. A. This Agreement may be terminated with or without cause by the CDC - HA. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CDC -HA for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CDC -HA. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CDC -HA, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CDC -HA by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CDC -HA all rights set forth in Section 7. E. The CDC -HA further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 20. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, Standard Agreement Page 7 of 11 CDC -HA and July 2017 Keyser Marston Assoc. telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CDC -HA: To CONSULTANT: Carlos Aguirre Housing and Economic Development Manager Housing and Economic Development Department City of National City 1243 National City Boulevard National City, CA 91950-4397 Paul C. Marra Vice President & Managing Principal Keyser Marston Associates, Inc. 555 West Beech Street, Suite 460 San Diego, CA 92101 Address for Payments: Keyser Marston Associates, Inc. 1299 Fourth St., Suite 408 San Rafael, CA 94901 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 21. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CDC -HA of National CDC -HA. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CDC -HA of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CDC - Standard Agreement July 2017 Page 8 of 11 CDC -HA and Keyser Marston Assoc. HA in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CDC -HA. ❑ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National CDC -HA Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the CDC -HA Clerk of the CDC -HA of National CDC -HA in a timely manner on forms which the CONSULTANT shall obtain from the CDC -HA Clerk. The CONSULTANT shall be strictly liable to the CDC -HA for all damages, costs or expenses the CDC -HA may suffer by virtue of any violation of this Paragraph 22 by the CONSULTANT. 22. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. Consultant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 23. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits,schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement shall control. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. Standard Agreement Page 9 of 11 CDC -HA and July 2017 0 Keyser Marston Assoc. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any action shall be a court of competent jurisdiction in the County of San Diego, State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Subcontractors or Subconsultants. The CDC -HA is engaging the services of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CDC -HA in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CDC -HA, both the insurance provisions in Section 17 and the indemnification and hold harmless provision of Section 15 of this Agreement. M. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. [Signature Page to Follow] Standard Agreement Page 10 of 11 CDC -HA and July 2017 Keyser Marston Assoc. ' IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CDC -HA OF THE CITY OF NATIONAL KEYSER MARSTON ASSOCIATES, INC. CITY B Leslie Deese Executive Director APPROVED AS TO FORM: Angil P. Morris Jones DC -HA General Counsel Rbberto'M. Contreras Deputy CDC -HA General Counsel (Corporation — signatures of two corporate officers required) (Partnership or Sole proprietorship — one signature) By: Paul C. Marra Vice President, Managing Principal Standard Agreement Page 11 of 11 CDC -HA and July 2017 Keyser Marston Assoc. EXHIBIT A SCOPE OF SERVICES KIMBALL AND MORGAN TOWERS THE COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY OBJECTIVE On June 19, 2018 the Community Development Commission -Housing Authority of the City of National City (CDC -HA) Board approved the execution of a Disposition and Development Agreement (DDA) with Kimball Tower Housing Associates, L.P. and Morgan Tower Associates, L.P. (Developer) for the recapitalization and rehabilitation of Kimball and Morgan Towers (Projects) located at 1317 and 1415 "D" Avenue in National City. The CDC -HA has requested KMA review the Projects' closing financial pro formas and cost estimates. The following presents the KMA approach, budget, and schedule for this assignment. SCOPE OF SERVICES 1. Preliminary Affordable Housing Financing Gap Analysis: KMA will prepare financial analyses of the updated financial pro formas and supporting documentation submitted by the Developer. These items may include contractor estimates and financial commitments, including both debt, equity (Tax Credits), and other public sources. KMA will identify the proposed final terms of the CDC -HA financial transactions for the Projects, including a review of all aspects of project financing, including the use of Low Income Housing Tax Credits (LIHTC), tax-exempt multi -family housing bonds, Affordable Housing Program (AHP) funds, and Section 8 vouchers. 2. Data Request: KMA will prepare a written data request for the Developer itemizing missing data requirements, and/or need for clarification. KMA anticipates that the Developer will respond to this data request with updated pro formas, as well as supporting documentation for the inputs and assumptions used in the pro formas. 3. Affordable Housing Financing Gap Analysis: KMA will update the KMA financial models to reflect the Developer's updated pro formas. Our financial models will include a side -by -side comparison of the Developer's assumptions from June 2018 vs. their updated pro formas. Keyser Marston Associates, Inc. November 15, 2018 18106ka1 99900.000.003 Page 1 4. Review of Financing Sources: KMA will evaluate the financing sources secured for the Projects, including LIHTCs, tax-exempt bonds, AHP funds, and other sources. 5. Transaction Structure: KMA will review of project's proposed financial terms for consistency with the DDA. 6. Public Hearings and Presentations: KMA will participate in up to one (1) public meeting. BUDGET ALLOWANCE Our total budget for the above scope of services is $25,000, including all labor hours and reimbursables. This budget assumes the following: • One (1) draft and one (1) final version of the KMA financial analyses • Up to one (1) public meeting SCHEDULE KMA is prepared to begin work immediately upon authorization. KMA anticipates completion of a draft analysis within 30 calendar days from authorization to proceed and receipt of all materials from the Developer. Keyser Marston Associates, Inc. November 15, 2018 18106ka1 99900.000.003 Page 2 EXHIBIT B KEYSER MARSTON ASSOCIATES, INC. PUBLIC SECTOR HOURLY RATES 2018/2019 CHAIRMAN, PRESIDENT, 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, parking, 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. Monthly billings for staff time and expenses incurred during the period will be payable within thirty (30) days of invoice date. * Rates for individuals in these categories will be increased by 50% for time spent in court testimony. Keyser Marston Associates, Inc. Page 3 November 15, 2018 18106ka1 99900.000.003 T ® A� Q CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD/YYYY) 11/28/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). MCC Insurance Services License No. 0589960 101 Montgomery St., Suite 800 San Francisco CA 94104 CON ONIAt.1 Halidee Callejas NAME: PAHONrE Ext). (415) 957-0600 (vC,No): (415)957-0577 E-MAIL hcallejas@mocins.com ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC it INSURER A: Massachusetts Bay Ins. Co. 22306 INSURED Keyser Marston Associates, Inc. 1299 4th Sreet Suite 408 San Rafael CA 94901 INSURERB:Allmerica Financial Benefit Co. 41840 INSURERC:Hanover Insurance Company 22292 INSURER D: INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER:2018-2019 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE NSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR jr()(V POLICY NUMBER POLICY EFF (MMIDDIYYYY) POLICY EXP (MM/DDIYYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY X ZDFA49104904 No Deductible Applies 12/1/2018 12/1/2019 EACH OCCURRENCE $ 1,000, 000 DAMAGE PREMISESO(EaENTEoccurrence) $ 500,000 CLAIMS -MADE X OCCUR MED EXP (Any one person) $ 10,000 PERSONAL A ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ Included $ B AUTOMOBILE X _ X X LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS Comp $500 - X X SCHEDULED AUTOS NON -OWNED AUTOS Co $500 X AwFA490049 12/1/2018 12/1/2019 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ Uninsured motorist combined single $ 1,000,000 C X UMBRELLA LIAB EXCESSLIAB X OCCUR CLAIMS -MADE X UHFA49117104 12/1/2018 12/1/2019 EACH OCCURRENCE $ 4,000,000 AGGREGATE $ 4,000,000 $ DED X RETENTION $ 0 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ,, / N ANY PROPRIETOR/PARTNER/EXECUTIVE ❑ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N / A PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ C Professional Liability Retention $25,000 LHFD42616501 Retro Date: 11/11/1976 12/1/2018 12/1/2019 Each Wrongful Ad $1,000,000 Aggregate Limit $2,000,000 DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) The City of National City and The Community Development Commission -Housing Authority of the City of National City and its officers, agents, employees, and volunteers are named as additional insured as respects their interest may appear per written contract. Granted a waiver of subrogation for General Liability, Auto Liability policies. This insurance is primary and non-contributory. 30 day cancellation clause and 10 day notice of cancellation for non-payment of premium CERTIFICATE HOLDER CANCELLATION The City of National City & The Community Development Commission Housing Authority of the City of National City 1243 National City Boulevard National City, CA 91950-4397��� I SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Halidee Callejas/HCA ��IJy� J © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) INS025 (2oiaoi) The ACORD name and logo are registered marks of ACORD COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 POLICY NUMBER: ZDFA49104904 Effective Date: 12/01/2018 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Additional Insured Person(s) or Organization(s): Location(s) of Covered Operations The City of National City and the Community Development Commission - Housing Authority of the City of National City and its officers, agents, employees, and volunteers It is understood and agreed that this insurance is primary and any other insurance maintained by the Additional Insured shall be excess only and not contributing with this insurance in regards to all operations as pertains to the named insured. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) desig- nated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equip- ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a princi- pal as a part of the same project. CG 20 10 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 ❑ Keyser Marston Associates, Inc Policy No: AWFA490049 COMMERCIALAUTO CA 00 0103 06 BUSINESS AUTO COVERAGE FORM Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the Company pro- viding this insurance. Other words and phrases that appear in quotation marks have special meaning. Refer to Section V — Definitions. SECTION I — COVERED AUTOS Item Two of the Declarations shows the "autos" that are covered "autos" for each of your coverages. The following numerical symbols describe the "autos" that may be covered "autos". The symbols entered next to a coverage on the Declarations designate the only "autos" that are covered "autos". A. Description Of Covered Auto Designation Symbols Symbol Description Of Covered Auto Designation Symbols 1 Any "Auto" 2 Owned "Autos" Only Only those "autos" you own (and for Liability Coverage any "trailers" you don't own while attached to power units you own). This includes those "autos" you acquire ownership of after the policy begins. 3 Owned Private Passenger "Autos" Only Only the private passenger "autos" you own. This includes those private passenger "autos" you acquire ownership of after the policy begins. 4 Owned "Autos" Other Than Pri- vate Passenger "Autos" Only Only those "autos" you own that are not of the private passenger type (and for Li - ability Coverage any 'trailers" you don't own while attached to power units you own). This includes those "autos" not of the private passenger type you acquire ownership of after the policy begins. 5 Owned "Autos" Subject To No- Fau[t Only those "autos" you own that are required to have No -Fault benefits in the state where they are licensed or principally garaged. This includes those "autos" you ac- quire ownership of after the policy begins provided they are required to have No - Fault benefits in the state where they are licensed or principally garaged. 6 Owned "Autos" Subject To A Compulsory Un- insured Motor- ists Law Only those "autos" you own that because of the law in the state where theyare li- censed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage. This includes those "autos" you acquire ownership of after the policy begins provided they are subject to the same state uninsured motorists re- quiremenL 7 Specifically De- scribed "Autos' Only those "autos" described in Item Three of the Declarations for which a pre- mium charge is shown (and for Liability Coverage any "trailers" you don't (wnwhile attached to any power unit described in item Three). 8 Hired "Autos" Only Only those "autos" you lease, hire, rent or borrow. This does not include any°auto" youlease, hire, rent,or borrow from any of your "employees", partners (if you are a partnership), members (if you are a limited liability company) or members oftheir households. 9 • Nonowned "Autos" Only Only those "autos" you do not own, lease, hire, rent or borrow that are used in con - nection with your business. This includes "autos" owned by your "employees", part- ners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs. CA 00 01 03 06 © ISO Properties, inc., 2005 - Page 1 of 12 ❑ 19 Mobile Equip- ment Subject To Compulsory Or Financial Re- sponsibility Or Other Motor Ve- hicle insurance Law Only Only those "autos" that are land vehicles and that would qualify under the definition of "mobile equipment" under this policy if they were not subject to a compulsory or financial responsibility law or other motor vehicle insurance law where they are li- censed or principally garaged. B_ Owned Autos You Acquire After The Policy Begins 1. If Symbols 1, 2, 3, 4, 5, 6 or 19 are entered next to a coverage in Item Two of the Declara- tions, then you have coverage for "autos" that you acquire of the type described for the re- mainder of the policy period. • 2. But, if Symbol 7 is entered next to a coverage in Item Two of the Declarations, an "auto" you acquire will be a covered "auto" for that cover- age only if: a. We already cover all "autos" that you own for that coverage or it replaces an "auto" you_ previbusty owned that had that cover- age; and b. You tell us within 30 days after you acquire it that you want us to cover it for that cover- age. C. Certain Trailers, Mobile Equipment And Temporary Substitute Autos If Liability Coverage is provided by this Coverage Form, the following types of vehicles are also cov- ered "autos" for Liability Coverage: 1. 'Trailers" with a Toad capacity of 2,000 pounds or less designed primarily for travel on public roads. 2. "Mobile. .equipment" while being carried or towed by a covered "auto". 3. Any "auto" you do not own while used with the permission of its owner as a temporary substi- tute for a covered "auto" you own that is out of service because of its: a. Breakdown; b. Repair; c. Servicing; d. "Loss"; or e.. Destruction. SECTION 11— LIABILITY COVERAGE A. Coverage We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or 'property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto". We will also pay all sums an "insured" Iegallymust pay as a "covered pollution cost or expense" to which this insurance applies, caused by an "acci- dent" and resulting from the ownership, mainte- nance or use of covered "autos". However, we will only pay for the "covered pollution cost or ex- pense" if there is either "bodily injury" or "property damage" to which this insurance applies that is caused by the same "accident". We have the right and duty to defend any 'insured" against a "suit" asking for such damages or a "covered pollution cost or expense". However, we have no duty to defend any "insured" against a "suit" seeking damages for "bodily injury" or"prop- erty damage" or a "covered pollution cost or ex- pense" to which this insurance does not apply. We may investigate and settle any claim or "suit' as we consider appropriate. Our duty to defend orseffle ends when the Liability Coverage Limit of Insur- ance has been exhausted by payment of judg- ments or settlements. 1. Who Is An Insured The following are "insureds": a. You for any covered "auto". b. Anyone else while using with your permis- sion a covered "auto" you own, hire or bor- • row except: (1) The owner or anyone else from whom you hire or borrow a covered "auto". This exception does not apply if the covered "auto" is a "trailer" connected to a cov- ered "auto" you own_ Page 2 of 12 © ISO Properties, Inc., 2005 CA 00 0103 06 ❑ •(5) Your "employee" if the covered "auto" is owned by that "employee" or a member of his or her household. Someone using a covered "auto"' while he or she is working in a business of selling, servicing, repairing, parking or storing "autos" unless that business is yours. (4) Anyone other than your "employees", partners (if you are a partnership), members- (if you are a limited liability company), or a lessee or borrower or any of their "employees", while moving property to or from a covered "auto". A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered "auto" owned by him or her or a member of his or her household. - c. Anyone liable for the conduct of an ''in- sured". described above but only to the ex- tent of that liability. 2. Coverage Extensions a. Supplementary Payments We will payfor the "insured": (1) All expenses we incur. (2) Up to $2,000 for cost of bail bonds (in- cluding bonds for related traffic law vio- lations) required because of an "acci- dent' we cover. We do not have to fur- nish these bonds. (3) The cost of bonds to release attach- ments in any "suit" against the "insured" we defend, but only for bond amounts within our Limit of insurance. (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $2BO a day be- cause of Time off from work. All costs taxed against the "insured" in any "suit" against the "insured" we de- fend. All interest on the full amount of any judgment that accrues after entry of the judgment in any "suit" against the "in- sured" we defend, but our duty to pay in- terest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of insurance. These payments will not reduce the Limit of Insurance. (5) (6) (2) (3) b. Out -Of -State Coverage Extensions While a covered "auto" is away from. the state where it is licensed we will: (1) Increase the Limit of Insurance for Li- ability Coverage to meet the limb speci- fied by a compulsory or financial re- sponsibility law of the jurisdiction where the covered "auto" is being used. This _ extension does not apply to the limit or limits specified by any law governing motor carriers of passengers or prop- erty. (2) Provide the minimum amounts and types of other.coverages, such as no- fault, required of out-of-state vehicles by the jurisdiction where the covered "auto" is being used. We will not pay anyone more than once for the same elements of loss because of these extensions. B. Exclusions • This insurance does not apply to any of the follow- ing: 1_ Expected Or Intended Injury "Bodily injury" or "property damage" expected or intended from the standpoint of the "in- sured". 2. Contractual Liability assumed under any contract oragree- ment. But this exclusion does not apply to liability for damages: a.- Assumed in a contract or agreementlhat is an "insured contract" provided the "bodily in- jury" or "property damage" occurs subse- quent to the execution of the contract or agreement; or b. That the "insured" would have in the ab- sence of the contract or agreement. 3. Workers' Compensation Any obligation for which the "insured' or the "insured's" insurer may be held liable under any workers' compensation, disability benefits or unemployment.compensation law or anysimitar law. 4. Employee indemnification And Employer's Lfabili y "Bodily injury" to: - a. An "employee" of the "insured" arising out of and in the course of: (1) Employment by the "insured'; or ten o..-....-4;-.. t.,.. nnnt; ID, ...,'),.r.-) 11 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk KEYSER MARSTON ASSOCIATES Consultant Services Kimball and Morgan Tower Rehab and Recapitalization Carlos Aguirre (Housing & Economic Development) forwarded a duplicate original Agreement to Keyser Marston Associates.