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2003-11-19 ARRA PacketTime: Public Packet binder CITY OF ALAMEDA.( SPECIAL JOINT MEETING OF THE CITY COUNCIL, COMMUNITY IMPROVEMENT COMMISSION AND ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY WEDNESDAY - - - NOVEMBER 19, 2003 - - - 5:00 P.M. Wednesday, November 19, 2003, 5:00 p.m. Place: City Council Chambers and Conference Room, City Hall, corner of Santa Clara-Avenue and Oak Street. PLEDGE OF ALLEGIANCE ROLL CALL AGENDA ITEMS 1. Public Anyone agenda item. Comment on Agenda Items Only. wishing to address the Council/Commission/Authority on items only, may speak for a maximum of 3 minutes per 2. Presentation by Alameda Point Community Partners. 3. If desired, adjournment to Closed Session to consider: CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: Alameda Naval Air Station. Negotiation Party: Under Negotiation: Alameda Point Community Partners, Navy, City of' Alameda, Community Improvement Commission and Alameda Reuse and Redevelopment Authority. Price and terms. (Announcement of Action Taken in Closed Session, if any.) 4. Adoption of Resolution Authorizing the Alameda City Manager, Executive Director of the Commission and the Executive Director of the Authority to Enter into a Conditional Acquisition Agreement By and Between the Alameda Point Community Partners for Real Property at Alameda Point. Adjournment Beverly Jo yor Chair, Community Improvement Commission and Alameda Reuse and Redevelopment Authority MINUTES OF THE SPECIAL JOINT CITY COUNCIL, COMMUNITY IMPROVEMENT COMMISSION AND ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY MEETING WEDNESDAY- -NOVEMBER 19, 2003- -5:00 P.M. Mayor/Chair Johnson convened the Special Joint Meeting at 5:10 p.m. Vice Mayor/Commissioner/Board Member Daysog led the Pledge of Allegiance. ROLL CALL - Present: Councilmembers/ Commissioners/ Authority Members Daysog, Gilmore, Kerr, Matarrese and Mayor/Chair Johnson - 5. Absent: None. Public Comment Peter Clark, Allegre Associates, submitted information to the Council/Commission/Authority; stated in exchange for 140 acres at Alameda Point, he would build a transit system connecting to BART at no cost to the City of Alameda; City staff suggested that he contact APCP; however, his phone calls have not been returned. Mayor/Chair Johnson inquired whether Mr. Clark is associated with Cybertran. Mr. Clark responded cross licensing would be done with Cybertran; there are a couple of possibilities; he is affiliated with Cybertran and Morgan Town University, which has a transit system that has been in operation 30 years and has an unblemished safety record; the [Alameda Point] options are similar to Morgan Town which has a rubber tire system or with Cybertran; a historic trolley or futuristic approach could be completed for the same cost. Mayor/Chair Johnson inquired whether Mr. Clark is locked into one mode of transportation. Mr. Clark responded that he is proposing automated trolleys, which could have different looks and are on rails or rubber tires; rail is slightly cheaper, quieter and less expensive to maintain; that he uses automated construction techniques; towers are welded to steel augers in the ground; the preferred mode is over intersections and into the second floor of buildings; the proposal does not appear to be a transit-oriented development. Doug de Haan, Alameda, stated the process has been ongoing for two Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda Reuse and Redevelopment Authority November 19, 2003 1 years; three majorelements are different: 1) Shea and Centex were not involved in the initial proposal; 2) Morgan Stanley's adaptive reuse experience; and 3) remediation; that he does not recognize the current team; urged cautious review; stated the City needs a long-term partner; now, the project will be taken down in segments; if major remediation is left until the end of the project and the developer leaves, the City could be left standing against the Navy; that he is concerned about piecemeal development; taking on the whole project is doable. * * * (03-544CC/03-069CIC) Presentation by Alameda Point Community Partners. APCP gave a PowerPoint presentation. The City Attorney/Legal Counsel clarified that the slides labeled "Master Concept Plan and Illustrative Site Plan" represent the master developer's proposal and had not been submitted to the City; approval of the Conditional Acquisition Agreement (CAA) is not an approval of the proposal. Councilmember/Commissioner/Board Member Gilmore noted the long negotiation process; initially, there was a 22.5% Internal Rate of Return (IRR) and APCP was expected to fund predevelopment costs; the City has decided to spend $3.5 million in predevelopment costs; at the end of the 15 month predevelopment period, certain things will be known; inquired why the change [in predevelopment funding] is not reflected in the IRR; stated the IRR should no longer be 22 5% Phil Rafton, APCP, responded the risk profile is different than when the RFP was prepared; determining where the Navy stands in the next 15 months will eliminate one component of risk; there will be the risk of entitlement and solving the traffic problems thereafter; implementing the DDA has risks of development costs and tremendous unknowns, such as unstable soil conditions, seismic conditions, market conditions and interest rates; the City's $3.5 million underwriting costs will be paid for by the development; originally, APCP was to receive excess lease revenues to cover predevelopment costs; said revenues are not available for APCP's Use; APCP is still faced with tremendous dollars and will fund an additional $12 to $15 million between now and full entitlement; the risk still exists; the City is not taking on $3.5 million, bonds will be repaid from the project regardless of whether APCP is the developer; the risk profile remains the same; other base conversions have IRRs over 20%, some as high as 25%; the IRR is how the capital is attracted relative to the risk. Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda Reuse and Redevelopment Authority November 19, 2003 2 Councilmember/Commissioner/Board Member Matarrese stated the IRR is subordinate to fiscal neutrality and amenities in the development plan, including public spaces, parks and certain infrastructure. Councilmember/Commissioner/Board Member Kerr stated issuing bonds is not risk free; all developers face soil problems, seismic problems, and traffic solutions; the IRR is of concern because the land price has not been settled; the City might not be paid anything for the land; if the 22.5% IRR in the CAA is not achieved, the City will not receive profit sharing; the City should evaluate and inquire whether anyone would purchase the property "as is;" the deal involves taxpayer expense, including redevelopment tax increment and property taxes, and could end up not getting the people of Alameda any money for their land; that she is concerned about negotiations involving considerable bond money which could lead to no return for the land; the City should have reviewed the net value of the land in an "as is" condition. Mayor/Chair Johnson stated the $3.5 million must be spent for the entitlement process; the City would have to spend said money whether or not there is a developer. Councilmember/Commissioner/Board Member Matarrese stated the first share of profit that the City will reap is the amenities; the City will not lose if there is 19% return because the return follows receiving parks and City property; anything beyond 22.5% would be profit to the City; the Navy's intention was not to give cities land to make a profit; the intent was to give land back to the cities for adaptive reuse; the profit the City will reap is City- owned public amenities that the development will pay for, such as libraries and fire houses. Vice Mayor/Commissioner/Board Member Daysog stated bonds can be issued to pay for services; issuing a bond causes future generations to repay the bond and interest; that he has concerns about issuing bonds; reducing the capital or operating budgets should be contemplated in order to achieve fiscal neutrality; noted that since lease revenues cannot pay for services, lease revenue bonds issued in 1999 were used to pay for capital projects throughout Alameda to free up Public Works money for Alameda Point [services]; all steps should be taken to cut costs before bonds are issued. Mr. Rafton noted repayment of the bonds would come from the project either through lease revenues or the development; APCP is obligated to fiscal neutrality, which includes repayment of the bonds. Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda 3 Reuse and Redevelopment Authority November 19, 2003 Vice Mayor/Commissioner/Board Member Daysog stated that he would consider a bond, but cutting costs should be contemplated to minimize the use of bonds. Mr. Rafton noted using public financing benefits both the City and APCP. Vice Mayor/Commissioner/Board Member Daysog stated infrastructure, tax increment, and community facilities bonds have to be issued; that he wants to minimize the use of bonds for short-term financing as outlined in the 1999 financial plan. Councilmember/Commissioner/Board Member Gilmore stated that after the City spends $3.5 million, APCP could decide to walk away; spending the $3.5 million will answer questions; however, answers are not receiving any value since the IRR remains the same; after questions have been answered, APCP can elect to walk away. Mr. Rafton stated during the period that the City spends $3.5 million, APCP would spend approximately $1.8 million; noted APCP would give the City a check for $250,000 soon. Councilmember/Commissioner/Board Member Gilmore inquired whether the $250,000 payment is a pre-existing obligation. The City Manager/Executive Director stated an additional $1.5 million is anticipated in the ENA; $250,000 was to be paid to the City upon approval of CAA term sheet; if the CAA is approved, another $250,000 is to be paid to the City; $1 million would be paid upon approval of the Disposition and Development Agreement (DDA). Mr. Rafton noted that APCP does not receive a return on bond money, because it is money APCP is not contributing. Councilmember/Commissioner/Board Member Kerr stated the idea was to keep APCP from continuing to spend money; the City did not know where APCP-was spending money; inquired what type of accounting APCP would provide on the $1.8 million it anticipates spending. Mr. Barry stated the CAA contemplates an obligation for APCP to audit predevelopment funds that have been expended by APCP; "qualified predevelopment expenses" is the defined term; APCP has to complete an audit on money spent to date and an additional audit will be completed at the conclusion of the ARRA funded predevelopment period. Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda Reuse and Redevelopment Authority November 19, 2003 4 Councilmember/Commissioner/Board Member Kerr stated APCP's initial documentation loosely defined APAR; inquired whether as to the contractual obligation between APCP and firms [on its team]; further inquired into is the relationship between APAR and APCP. Mr. Barry responded Shea Properties created the acronym APAR (Alameda Point Adaptive Reuse) for the RFQ; APAR is not a separate entity; the team introduced tonight is committed to the six-month adaptive reuse business proposal process; the firms will be APCP's paid consultants responsible for creating the adaptive reuse business proposal required in the CAA. Mr. Rafton noted that the $7 million APCP spent to date and the $1.8 million that will be spent during the next 15 months, would not receive 22.5% IRR during the 15 month period. Vice Mayor/Commissioner/Board Member Daysog stated [the City] spending $3.5 million to pay for the final predevelopment items is the City's budget decision; ARRA will decide how to pay for the $3.5 million; that he is concerned about paying via bond; the City will find a way to pay for the services; that he would like to see language about contemplating cuts elsewhere; the City might not be able to cut the budget; lowering staff levels might not be acceptable. Mr. Barry stated [APCP's] $1.8 million budget entails a reduction of APCP's overhead and work product; the budget is an exhibit to the CAA; overhead has not been stripped; APCP's goal is partner with the City in negotiations with the Navy, whether it be technical assistance or lobbying; APCP will provide partnership assistance to help in the conveyance process; that he wants the best opportunity for APCP to elect to proceed at the end of the ARRA funded predevelopment period by having APCP's team provide input. Layne Marceau, President of Shea Homes, noted that regarding APCP's option to proceed at the end of the 15 month period, APCP has risked $7 million over the two year process; APCP has funded City expenses for two years; APCP has taken on risk; APCP thought it would have vested rights to the project by now; very few risks have been taken out of the project to date; in 15 months, there will still be many risks. Councilmember/Commissioner/Board Member Gilmore stated APCP's adaptive reuse specialist, Plant Construction, has a lot of adaptive reuse experience, but not with military bases; inquired Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda 5 Reuse and Redevelopment Authority November 19, 2003 whether other military sites Plant is involved with are farther along than Alameda. Mr. Barry noted IRG is involved with the McClellan Park project and is developing teams to orchestrate adaptive reuse. Bob Burke, Plant Construction, stated the other military bases that Plant Construction is involved with, Hamilton, Fort Ord and Tustin, are behind Alameda; Plant has been in existence since the early 1970's and has converted tilt buildings constructed for industrial uses to offices, which have adaptive reuse characteristics; APCP was extremely careful in selecting its team. Mr. Barry noted Morgan Stanley and IRG's roles changed as far as further investment, but both have a substantial investment in the project and remain available as resources. Councilmember/Commissioner/Board Member Gilmore stated the original MOU contemplates distributions among the partnerships and sets a floor for the IRR of 18%; there are incentives beyond the 18% for the partners; the amended MOU indicates anything not specifically addressed remains the same; inquired whether the 18% remains the same. Mr. Barry responded APCP is drafting its operating agreement, which will spell out each of the components in the MOU. Mr. Marceau stated the 18% cash distribution section is in the original MOU; the amendment addresses new priorities for cash distribution; the 18% no longer exists; there is a new priority of how cash is distributed out of the partnership; now that operating partners, Centex and Shea, are committing all of the future capital, there is no longer the promote [18% incentive]. Mr. Rafton stated 18% was never an underwriting criteria, rather a threshold incentive for the managing member. Councilmember/Commissioner/Board Member Kerr stated APCP's incorporation date has not changed; inquired whether APCP's ability to have insurance and a bank account has changed. Mr. Barry responded the money spent to date is a soft asset; until property is transferred, there will not be any physical, hard assets; the commitment is that APCP will fund all capital required to move forward; APCP was always able to have insurance; the insurance requirements for the property management agreement had unique twists; APCP has the ability to get insurance, which is not Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda 6 Reuse and Redevelopment Authority November 19, 2003 an issue relative to APCP's standing. * * * The Special Meeting was adjourned to closed session to consider: (03-545CC/03-070CIC) Conference with Real Property Negotiator; Property: Alameda Naval Air Station; Negotiating Parties: Alameda Point Community Partners, Navy, City of Alameda, Community Improvement Commission and Alameda Reuse and Redevelopment Authority; Under negotiation: Price and terms. Following the Closed Session, the Special Meeting was reconvened and Mayor/Chair Johnson announced that the City/Commission/ Authority obtained a briefing from Real Property Negotiators. AGENDA ITEM (03-546CC/03-071CIC) City Council Resolution No. 13665, CIC Resolution No. 03-121, ARRA Resolution No. 33, "Authorizing the Alameda City Manager, Executive Director of the Commission and the Executive Director of the Authority to Enter into a Conditional Acquisition Agreement By and Between the Alameda Point Community Partners for Real Property at Alameda Point." Adopted. Councilmember/Commissioner/Board Member Gilmore stated that she appreciates the time and effort that APCP has put into answering questions and providing the presentation. Vice Mayor/Commissioner/Board Member Daysog moved adoption of the CAA with notes [adoption of the resolution], with direction that the ARRA/CIC/City Council, in performing its responsibilities, shall contemplate reducing the operational and capital budgets in an effort to achieve fiscal neutrality; clarified that said language is not added to the CAA, but is part of the motion. Councilmember/Commissioner/Board Member Matarrese seconded the motion, with the added policy statement and the annotated language. Under discussion, Councilmember/Commissioner/Board Member Matarrese noted that the Agreement is conditional and addresses how to move forward, including the City's investment over the next 15 months; noted said investment is needed, regardless of who will be the developer. Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda Reuse and Redevelopment Authority November 19, 2003 7 Councilmember/Commissioner/Board Member Gilmore stated that she needs time to digest what was presented tonight; some member entities were introduced for the first time. Councilmember/Commissioner/Board Member Gilmore made a substitute motion to continue the matter for a week or two. Councilmember/Commissioner/Board Member Kerr seconded the motion. THE SUBSITUTE MOTION FAILED by the following roll call vote: Councilmember/Commissioner/Board Member Daysog: No; Gilmore: Aye; Kerr: Aye; Matarrese: No; Mayor/Chair Johnson: No. Ayes: 2. Noes: 3. On the call for the question on the original motion, the motion carried by the following roll call vote: Councilmember/ Commissioner/Board Member Daysog: Aye; Gilmore: No; Kerr: No; Matarrese: Aye; and Mayor/Chair Johnson: Aye. Ayes: 3. Noes: 2. Adjournment There being no further business, Mayor/Chair Johnson adjourned the Special Joint Meeting at 7:35 p.m. Respectfully submitted, Gui,4 Lara Weisiger, Ci4j Clerk Secretary, Community Improvement Commission The agenda for this meeting was posted in accordance with the Brown Act. Special Joint Meeting Alameda City Council, Community Improvement Commission and Alameda Reuse and Redevelopment Authority November 19, 2003 8 Emily Parodi (TWO COPIES) ARRA Secretary Alameda Point AGENDA Special Meeting of the Governing Body of the Alameda Reuse and Redevelopment Authority * * * * * * ** Alameda City Hall Council Chamber, Room 391 2263 Santa Clara Avenue Alameda, CA 94501 1. ROLL CALL 2. Public Comment on Agenda Items Only. Wednesday, November 19, 2003 Meeting will begin at 5:30 p.m. City Hall will open at 5:15 p.m. Anyone wishing to address the Board on agenda items only, may speak for a maximum of 3 minutes per item 3. REGULAR AGENDA ITEM 3 -A. Recommendation from the Executive Director that the ARRA Governing Body authorize the Executive Director to execute an amendment to a contract with Holland & Knight, LLP. 3 -B. Recommendation from the Executive Director that the ARRA Governing Body authorize the Executive Director to execute an amendment to a contract with RBF Consulting. 4. ADJOURNMENT Notes: • Sign language interpreters will be available on request. Please contact Emily Parodi, ARRA Secretary, or Development Services at 749 -5800 at least 72 hours before the meeting to request an interpreter. • Accessible seating for persons with disabilities (including those using wheelchairs) is available. • Minutes of the meeting are available in enlarged print. Alameda Reuse and Redevelopment Authority Interoffice Memorandum November 17, 2003 TO: Honorable Chair and Members of the Alameda Reuse. and Redevelopment Authority FROM: James M. Flint Executive Director SUBJ: Recommendation from the Executive Director that the ARRA Governing Body Authorize the Executive Director to Execute an Amendment to a Contract with Holland & Knight, LLP Background / Discussion Holland & Knight is a Washington D.C. based lobbying firm contracted by the ARRA to assist in efforts to secure federal support and funding for the environmental remediation and redevelopment of Alameda Point, and for transportation, infrastructure and other requirements necessary to support the redevelopment. The contract with Holland & Knight expired on July 31, 2003. To ensure that ARRA interests continue to be well represented at the federal level it is recommended that the term of the contract be extended to December 31, 2003 and that the compensation limit be increased by an additional $51,000. The extent of lobbying services needed to support ARRA interests during the upcoming ARRA- funded Predevelopment period will be evaluated and refined in the context of the ARRA Predevelopment Work Plan and budget limitations. A new or revised contract is anticipated to be presented to ARRA in December or early January. Fiscal Impact Pursuant to the January 2, 2002 Exclusive Negotiating Agreement (ENA) between the City and Alameda Point Community Partners (APCP), these consultant costs are partially reimbursable through cost recovery /pre - development funding. There is no fiscal impact to the General Fund. Dedicated to Excellence, Committed to Services Honorable Chair and Members of the November 17, 2003 Alameda Reuse and Redevelopment Authority Page 2 Recommendation The Executive Director recommends that the ARRA Governing Body authorize the Executive Director to execute the attached contract amendment with Holland & Knight, LLP. Respectfully submitted, James M. Flint Executive Director By: ' aul Benoi Deputy Executive Directo PB:ep Attachments: Consultant Agreement — Holland& Knight, LLP. Dedicated to Excellence, Committed to Services G:U.ynettelclosedsession\ Holland &Knight.StafReport.Contract. t 1- 17- 03.DGC AMENDMENT TO AGREEMENT This Amendment of the Agreement, entered into this 19th day of November 2003, by and between ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (hereinafter referred to as "ARRA ") and HOLLAND & KNIGHT, LLP, a Washington D.C. corporation, whose address is 2099 Pennsylvania Avenue, N.W. Suite 100, Washington, D.C. 20006 -6801 (hereinafter referred to as "Consultant "), is made with reference to the following: RECITALS: A. On February 1, 2003, an agreement was entered into by and between ARRA and Consultant (hereinafter "Agreement "). B. ARRA and Consultant desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. Paragraph 1 ( "Term ") of the Agreement is modified to read as follows: "The term of this Agreement shall commence on the 1St day of February 2003, and shall terminate on the 31st day of December 2003, unless terminated earlier as set forth herein." 2. Paragraph 3 ( "Compensation to Consultant ") of the Agreement is modified to read as follows: "Consultant shall be compensated for services performed pursuant to this Agreement in the amount not to exceed $126,000.00, as set forth in Exhibit `B -1" which is attached hereto and incorporated herein by this reference." 3. Paragraph 9 ( "Hold Harmless ") of the Agreement is modified to read as follows: "Consultant shall indemnify, defend and hold harmless ARRA, the City, its City Council, boards, commissions, officers, employees and volunteers ( "Indemnitees ") from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees ( "Claims "), arising from or in any manner connected to Consultant's negligent act or omission, whether alleged or actual, regarding performance of services or work conducted or perfonued pursuant to this Agreement. If Claims are filed against Indemnitees which allege negligence on behalf of the Consultant, Consultant shall have no right of reimbursement against Indemnitees for the costs of defense even if negligence is not found on the part of Consultant. However, Consultant shall not be obligated to indemnify Indemnitees from Claims arising from the sole or active negligence or willful misconduct of Indemnitees. As to Claims for professional liability only, Consultant's obligation to defend Indemnitees (as set forth above) is limited to the extent to which its professional liability insurance policy will provide such defense costs." 1 4. Except as expressly raod4ed herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Modification of Agreement to be executed on the day and year fast above written. HOLLAND & KNIGHT LLP A.LAMEDA REUSE & REDEVELOPMENT AUTFIORITY Title: p BY' 1CA^-9Ur 15:boradrAmettr \ r17 andmenc03 4- doe WWI lames M. Flint City Manager RECOMMENDED FOR APPROVAL: aul Benoit ' Development Services Director APPROVED AS TO FORM: Assista3at City Attorney Exhibit `B -1" Federal. Practice Group .Biding Rates NAME TITLE BILLING RATE Trent Bauserman Legislative Assistant $100 Jeffrey Boothe Partner $350 Robert Bradner Partner $350 Holly Cook Senior Public Affairs Advisor $275 Lynn Cutler Senior Public Policy Advisor $350 Christopher Delacy Associate $200 Tillie Fowler Partner $480 Michael Gaba Partner $350 Michael Galano Associate $175 David Gilliland Director, Strategic Communications $325 Michael Gillis Public Affairs Advisor $150 Richard Gold Partner $400 Lloyd Jordan Senior Counsel $350 Douglas Patton Partner $425 Gerry Sikorski Partner $480 Janet Studley Partner $400 Lisa Tofil Senior Counsel $300 Alise Troester Public Affairs Advisor $150 Beth Viola Managing Director, Strategic Communications $325 David Whitestone Partner . $330 David Winstead Partner $360 Rod Woodson Partner $325 Christian Zur Senior Public Affairs Advisor $275 Compensation 1. It is anticipated the total monthly costs for these services on a time & material basis will be $12,000.00 for the period February 1 — September 30, 2003 and $10,000.00 for the period October 1 — December 31, 2003, for a total contract cost of $126,000.00. Consultant shall provide ARRA with monthly invoice illustrating work completed on project tasks with corresponding costs for consultant staff and expenses. Such information should also indicate percentage of total contract to date expended and remaining balance. Invoices to be provided to ARRA within 10 days of start of month for previous month's work. 3 CONSULTANT AGREEMENT THIS AGREEMENT, entered into this _ day of , 2003, by and between ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (hereinafter referred to as "ARRA "), and HOLLAND & KNIGHT, T .T ,P, whose address is 2099 Pennsylvania Avenue, N.W. Suite 100, Washington, D.C. 20006 -6801 (hereinafter referred to as DConsultantD), is made with reference to the following: RECITALS: A. ARRA is a Joint Powers Authority 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 statutes of the State of California and the Charter of the City. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possess the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. ARRA and Consultant desire to enter into an agreement for services upon the teams 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 the 1st day of February 2003, and shall terminate on the 31st day of July, 2003, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit DAD which is attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services, on a time and materials basis, performed pursuant to this Agreement in the amount not to exceed $75,000.00 (Exhibit DBD). 4. TIME IS OF THE ESSENCE: Consultant and ARRA 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 other lobbying professionals and agrees that all services shall be performed by qualified and experienced personnel who are not employed by ARRA nor have any contractual relationship with City. 6. INDEPENDENT PART 11 S : 1 ARRA and Consultant intend that the relationship between them created by this Agreement is that of employer - independent Consultant. 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 ARRA to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation and sick leave are available from ARRA 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 its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold ARRA harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 8. NON - DISCRIMINATION: Consistent with ARRA's policy that harassment and discrimination are unacceptable employer /employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a ARRA employee, or a citizen by Consultant or Consultant's employee 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, and that the remedy for such breach shall be limited to termination of the Agreement. 9. HOLD HARMLESS: Except for loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, caused solely by the negligence of ARRA, the City, its City Council, boards and commissions, officers and employees, Consultant shall indemnify, defend and hold harmless ARRA, the City of Alameda, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, regardless of the merits or outcome of any such claim or suit arising from or in any manner connected to Consultant's negligent act or omission regarding performance of services or work conducted or performed pursuant to this Agreement. Except for loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, caused solely by the negligence of ARRA, the City, its City Council, boards and commissions, officers and employees, Consultant shall indemnify, defend and hold harmless ARRA, the City of Alameda, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner connected to the Consultant's negligent act or omission regarding performance of services or work conducted or performed pursuant to this Agreement. 2 10. INSURANCE: On or before the commencement of the terms of this Agreement, Consultant shall furnish ARRA 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 and D. Should any of the insurance covered by this certificate be canceled or coverage reduced below amount specified in this Agreement, before the expiration date thereof, the Consultant shall provide ten (10) days' advance written notice to the ARRA by certified mail, "Attention: Risk Manager." It is agreed that Consultant shall maintain in force at all times during the perfoilliance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to ARRA and licensed to do insurance business in the State of California. Endorsements naming ARRA, the City of Alameda, City Council, its boards and commissions, officers, 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) Liability: 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 automobile 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 the professional 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 it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to ARRA, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or ARRA 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 ARRA by virtue of the payment of any loss under such insurance. 3 C. FAILURE TO SECURE: If Consultant- at any time during the term hereof should fail to secure or maintain the foregoing insurance, ARRA 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: ARRA, the City of Alameda, its City. Council, boards and commissions, officers, and employees shall be named as an additional insured under all insurance coverages, except workers compensation insurance and professional liability insurance. 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 ARRA are not represented as being sufficient to protect Consultant. Consultant is advised to consult 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 ARRA. 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 ARRA 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 ARRA 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. SUBCONSULTANT APPROVAL: Unless prior written consent from ARRA is obtained, only those people and subconsultants whose names are listed in Consultant's bid shall be used in the performance of 4 this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of work to be subcontracted and the name of the proposed subconsultant. Such request shall set forth the total price or hourly rates used in preparing estimated costs for the subconsultant's services. Approval of the subconsultant may, at the option of ARRA, be issued in the form of a Work Order. In the event that Consultant employs subconsultants, such subconsultants shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general and automobile 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 its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City of Alameda Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS: Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of ARRA. All such work prepared by consultant will be provided to ARRA in electronic format as well. No report, infoimation nor 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 ARRA. Consultant shall, at such time and in such form as ARRA may require, furnish reports concerning the status of services required under this Agreement. 16. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by ARRA that relate to the perfoimance 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 ARRA or its designees at all proper times, and gives ARRA 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 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 ARRA's preliminary examination or audit of records, and ARRA'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 ARRA for all reasonable costs and expenses associated with the supplemental examination or audit. 5 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 ARRA shall be addressed to ARRA at: Alameda Reuse and Redevelopment Authority Alameda Point 950 West Mall Square, 2nd Floor Alameda, CA 94501 ATTN: Doug Yount All notices, demands, requests, or approvals from ARRA to Consultant shall be addressed to Consultant at: Holland & Knight LLP 2099 Pennsylvania Avenue, N.W. Suite 100 Washington, D.C. 20006 -6801 ATTN: Richard M. Gold 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 perfoiniance of this Agreement. If such default is not cured within a period of two (2) days after receipt by Consultant from ARRA of written notice of default, specifying the nature of such default and the steps necessary to cure such default, ARRA may terminate the Agreement forthwith by giving to the Consultant written notice thereof. ARRA 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. COST OF LITIGATION: If any legal action is necessary to enforce any provision hereof or for damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses in such amount as the Court may adjudge to be reasonable, including attorneysD fees. 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, and excepting for ethical issues which shall be subject to the standards set forth by the District of Columbia Bar. 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.) 6 Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Alameda, 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 ARRA to do otherwise. 22. WAIVER: A waiver by ARRA 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 ARRA 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. 7 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day a- year first above written. HOLLAND & KNIGHT, LT P By: L c. (m ct Title: By: Title: ALAMEDA REU & RED '. " ► ' i NT AUTHORITY / es M. Flint ity Manager RECOMME ,! D FOR ROVAL: VIDAI 1 Doug Yo Deputy Cit ' anager, AP Negotiations APPROVED AS TO FORM: Teresa Highsmith Assistant City Attorney C:\D000MENTS AND SETTINGS\RGOLD\LOCAL SETTINGS\TEMPORARY INTERNET FILES\OLKA\HKLAW CONTRACT.DOCHKLAW CONTRACT 8 EXHIBIT A SCOPE OF SERVICES 1. In coordination with appropriate outside counsel for the City of Alameda/ARRA, lobby on behalf of the City of Alameda/ARRA with the Congress, the Executive Branch, including the Department of Defense, the Navy, the EPA, and other officials in the federal government as required and directed by the designated representative of the City of Alameda/ARRA to secure, and if necessary, increase federal funding for (1) environmental remediation and redevelopment at Alameda Point, which includes, but is not limited to, the privatization of such environmental remediation, and (2) transportation, infrastructure and other development requirements at or adjacent to Alameda Point to ensure its successful redevelopment. Lobbying services for the purposes as described in this section should also be provided on behalf of the City /ARRA in coordination with appropriate outside counsel with all appropriate agencies, offices, and legislative representatives of the State of California as necessary to accomplish the objectives stated. Such lobbying services shall not include legal services, legal advice or legal opinion. 2. Prepare a written report which sets forth, in reasonable detail, the comprehensive lobbying strategy necessary to achieve the funding goals set forth in Section 1 above. Such written report shall, among other provisions, identify any unique issues /attributes that relate to Alameda Point that could affect the likelihood /success of achieving the funding goals set forth in Section 1 above. Such report shall be updated each sixty (60) days during the relationship. In addition, such report shall be delivered in draft form within two weeks of execution of this agreement, and shall address any additional funding issues requested by the City of Alameda/ARRA. The process for developing the strategies and arguments set forth in such written report, to the extent necessary, shall include the input from designated personnel for the ARRA/City of Alameda. 3. Obtain information and data from the state and federal government on matters of interest to the City of Alameda/ARRA that relate to the goals set forth in Section 1 above. 4. Present and disseminate pertinent information and data on matters before Congress, the Executive Branch, particularly the Department of Defense, appropriate state agencies and legislative representatives relating to the goals set forth in Section 1 above. 5. Advise the City of Alameda/ARRA concerning any matters that may be of interest to the City of Alameda with respect to the goals set forth in Section 1 above. 6. Assist and educate City of Alameda/ARRA's federal and state legislative delegation with respect to the goals set forth in Section 1 above. 7. Secure and furnish such detailed information as may be available that relates to the goals set forth in Section 1 above. 8. Review and comment on proposals prepared by the City of Alameda/ARRA for submission to federal and state agencies relating to the goals set forth in Section 1 above. 9. Provide non-legal advice to the City of Alameda/ARRA regarding appearances by City of Alameda/ARRA officials and staff before federal and state agencies relating to the goals set forth in Section 1 above. 10. Arrange appointments as necessary with state and federal legislative or administrative representatives and City of Alameda/ARRA representatives as requested relating to the goals set forth in Section 1 above. EXHIBIT B FEDERAL PRACTICE GROUP BILLING RATES NAME TITLE BILLING RATE Trent Bauserman Legislative Assistant $100 Jeffrey Boothe Partner $350 Robert Bradner Partner $350 Holly Cook Senior Public Affairs Advisor $275 Lynn Cutler Senior Public Policy Advisor $350 Christopher Delacy Associate $200 Tillie Fowler Partner $480 Michael Gaba Partner $350 Michael Galano Associate $175 David Gilliland Director, Strategic Communications $325 Michael Gillis Public Affairs Advisor $150 Richard Gold Partner $400 Lloyd Jordan Senior Counsel $350 Douglas Patton Partner $425 Gerry Sikorski Partner $480 Janet Studley Partner $400 Lisa Tofil Senior Counsel $300 Alise Troester Public Affairs Advisor $150 Beth Viola Managing Director, Strategic Communications $325 David Whitestone Partner $330 David Winstead Partner $360 Rod Woodson Partner $325 Christian Zur Senior Public Affairs Advisor $275 Compensation 1. It is anticipated the total monthly costs for these services on a time & material basis will be $12,500.00, with a total contract cost of $75k. Consultant shall provide ARRA with monthly invoice illustrating work completed on project tasks with corresponding costs for consultant staff and expenses. Such information should also indicate percentage of total contract to date expended and remaining balance. Invoices to be provided to ARRA within 10 days of start of month for previous month's work. Alameda Reuse and Redevelopment Authority Interoffice Memorandum November 17, 2003 TO: Honorable Chair and Members of the Alameda Reuse and Redevelopment Authority FROM: James M. Flint Executive Director SUBJ: Recommendation from the Executive Director that the ARRA Governing Body Authorize the Executive Director to Execute an Amendment to a Contract with RBF Consulting Background / Discussion On July 1, 2002, RBF Consulting entered into a contract with ARRA in the amount of $75,000. Pursuant to this contract, RBF Consulting has provided services including, but not limited to, reviewing infrastructure /development schemes, analyzing infrastructure and related cost estimates, providing cost estimates as requested, attending meetings and providing technical advice regarding planning and infrastructure issues related to Alameda Point. In order to cover invoices for requested services rendered over the months of July, August and September, it is necessary to extend the contract for an additional three months and to increase the compensation limit by $19,450. Any requirement for RBF services beyond this term will be negotiated within the context and limitations of the proposed ARRA- funded predevelopment initiative. Fiscal Impact Pursuant to the January 2, 2002 Exclusive Negotiating Agreement (ENA) between the City and Alameda Point Community Partners (APCP), these consultant costs are fully reimbursable through cost recovery. Therefore, there is no fiscal impact to the ARRA or City budget. Dedicated to Excellence, Committed to Services Honorable Chair and Members of the November 17, 2003 Alameda Reuse and Redevelopment Authority Page 2 Recommendation The Executive Director recommends that the ARRA Governing Body authorize the Executive Director to execute the attached contract amendment with RBF Consulting. Respectfully submitted, James M. Flint Executive Director By: PB:ep ul Benoit eputy Executive Director Attachments: Consultant Agreement — RBF Consulting Dedicated to Excellence, Committed to Services G:B.ynette \closedscssio n\RB P. Sta tlReport. Contract.1 I - 17 -03. DO C AMENDMENT TO AGREEMENT This Amendment of the Agreement, entered into this 19th day of November 2003, by and between ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (hereinafter referred to as "ARRA ") and RBF Consulting, a California corporation, whose address is 14725 Alton Parkway, Irvine, CA 92618 -2027, (hereinafter referred to as "Consultant "), is made with reference to the following: RECITALS: A. On July 1, 2002, an agreement was entered into by and between ARRA and Consultant (hereinafter "Agreement "). B. ARRA and Consultant desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. Paragraph 1 ( "Term ") of the Agreement is modified to read as follows: "The teuu of this Agreement shall commence on the 1st day of July 2002, and shall terminate on the 30th day of September 2003, unless terminated earlier as set forth herein." 2. Paragraph 3 ( "Compensation to Consultant ") of the Agreement is modified to read as follows: "Consultant shall be compensated for services performed pursuant to this Agreement in the amount not to exceed $94,450.00, as set forth in Exhibit `B -1" which is attached hereto and incorporated herein by this reference." 3. Paragraph 9 ( "Hold Hamuless ") of the Agreement is modified to read as follows: "Consultant shall indemnify, defend and hold harmless ARRA, the City, its City Council, boards, commissions, officers, employees and volunteers ( "Indemnitees ") from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees ( "Claims "), arising from or in any manner connected to Consultant's negligent act or omission, whether alleged or actual, regarding performance of services or work conducted or performed pursuant to this Agreement. If Claims are filed against Indemnitees which allege negligence on behalf of the Consultant, Consultant shall have no right of reimbursement against Indemnitees for the costs of defense even if negligence is not found on the part of Consultant. However, Consultant shall not be obligated to indemnify Indemnitees from Claims arising from the sole or active negligence or willful misconduct of Indemnitees. As to Claims for professional liability only, Consultant's obligation to defend Indemnitees (as set forth above) is limited to the extent to which its professional liability insurance policy will provide such defense costs." 1 4. Except as expressly modified herein, an other taros and covenants set forth in the Agree:oast shall remain the same and 'hail be in full fore* and effect. IN SYMMS WHEREOF, the parties hereto have caused this modification of Agreement to be Witted on the day and year fast above written. RBP ermsulting ALAMEDA REUSE 84 REDEVIILOPMENT4LTTHORITY By K. I+ Elett Title: vice pftQici,,t- ecom4orkontrottkannb0203wreadment4oe RECOMNIEINIDED FOR APPROVAL: 2 ant Setvtces Director APPROVED 0188. th Assist:1W City Attorney RM: Exhibit `B -1" COMPENSATION TO CONSULTANT Services shall be charged on a time and materials basis, according to the attached hourly rate schedule. Invoices will be submitted on a monthly basis to the ARRA describing the services and costs provided during the previous month. In addition to charges for services, costs and expenses incurred in connection with the provision of services may be submitted for reimbursement of actual cost. Based upon the Services to be Performed, Exhibit "A ", the maximum compensation for the perfoinuance of the scope of work, including reimbursement of direct expenses, will not exceed $94,450.00. Any compensation exceeding $94,450.00 requires amendment of this Contract 3 ■ • ■ ■ CONSULTING HOURLY RATE SCHEDULE Effective January, 2002 OFFICE PERSONNEL $170.00 Principal (Ken Bell; Gary Miller) 170.00 Project Director 150.00 Structural Engineer 125.00 Project Manager 128.00 Senior Engineer /Planner (Margit Allen; Elizabeth Cobb) 100.00 Corrosion Engineer ' 100.00 Project Engineer/Project Planner (Josh Stone; Jennifer Heaviside) 95.00 Environmental Specialist .00 Design Engineer /Designer /Mapper (CADD) 9852.00 Designer /Planner 82.00 Drafter /Graphic Artist 72.00 Environmental Analyst/Staff Planner 70.00 Assistant Engineer /Planner FIELD PERSONNEL $184.00 2- Person Survey Crew 124.00 1- Person Survey Crew 128.00 Field Supervisor CONSTRUCTION MANAGEMENT PERSONNEL $135.00 Construction Manager 135.00 Field Superintendent 0.00 Resident Engineer /Project Manager 11 10.00 Senior Construction Inspector 90.00 Assistant Field Superintendent 87.00 Construction Inspector 85.00 • Field Office Engineer 80.00 Construction Technician COMPUTER & OTHER SERVICE FEES $45.00 Clerical/Word Processing $45.00 Consultation Relative to Legal Actions 027 /mile Vehicle Mileage Note: Management reproduction, -p (15 %) will be direct diirect cost will sulltant. servicesttonpro de for the5cost of administration. Management Fee of subconsultant consultation and insurance. PLANNING ■ DEStGN ■ CONSTRUCTION 14725 Alton Parkway, Irvine, CA 92618 -2027 • P.Q. Box 57057, Irvine, CA 92619 -7057 • 949.472.3505 • Fax 949.472.8373 Offices located throughout California, Arizona & Nevada • www.RBF.com CONSULTANT AGREEMENT • THIS AGREEMENT, entered into this day of , 2002, by and between ALAMEDA REUSE AND REDEVELOPMENT AUTHORI Y (hereinafter referred to as "ARRA "), and RBF CONSULTING, a California corporation, whose address is 14725 Alton Parkway, Irvine, CA 92618 -2027, (hereinafter referred to as "Consultant "), is made with reference to the following: RECITALS: A. ARRA is a Joint Powers Authority 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 statutes of the State of California and the Charter of the City. B. Consultant is specially trained, experienced and competent to perform the special .services which will be required by this Agreement; and C. Consultant possess the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. ARRA and Consultant desire to enter into an agreement for services 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 the I day of Jac 2002, and shall terminate on the 30th day of June, 2003, unless terminated earlier as set fo 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 not to exceed $75,000.00, as set forth in Exhibit "B" which is attached hereto and incorporated herein by this reference. 4. TIME IS OF THE ESSENCE: Consultant and ARRA 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 ARRA nor have any contractual relationship with City. 1 6. INDEPENDENT PARTIES: ARRA and Consultant intend that the relationship between them created by this Agreement is that of employer - independent Consultant. 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 ARRA to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation and sick leave are available from ARRA 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 its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold ARRA harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision. by Consultant. 8. NQN- DISCRIMINATION: Consistent with ARRA's policy that harassment and discrimination are unacceptable employer /employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a ARRA employee, or a citizen by Consultant or Consultant's employee 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: Except for loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, caused solely by the .negligence of ARRA, the City, its City Council, boards and commissions, officers and employees, Consultant shall indemnify, defend and hold harmless ARRA, the City of Alameda, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, regardless of the merits or outcome of any such . claim or suit arising from or in any manner connected to Consultant's negligent act or omission regarding performance of services or work conducted or performed pursuant to this Agreement. Except for loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, caused solely by the negligence of ARRA, the City, its City Council, boards and commissions, officers and employees, Consultant shall indemnify, defend and hold harmless ARRA, the City of Alameda, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner connected to the Consultant's negligent act or omission regarding performance of services or work conducted or performed pursuant to this Agreement. 2 10. INSURANCE: On or before the commencement of the terms of this Agreement, Consultant shall furnish ARRA 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 and D. 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 ARRA by certified mail, "Attention: Risk 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 ARRA and licensed to do insurance business in the State of California. Endorsements naming ARRA, the City of Alameda, City Council, its boards and commissions, officers, 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) Liability: 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 automobile 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 the professional 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 it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to ARRA, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or ARRA 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 ARRA by virtue of the payment of any loss under such insurance. 3 C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, ARRA 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: ARRA, the City of Alameda, its City Council, boards and commissions, officers, and employees shall be named as an additional insured under all insurance coverages, except worker's compensation insurance. 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 ARRA are not represented as being sufficient to protect Consultant. Consultant is advised to consult 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 ARRA. 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 ARRA 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 ARRA 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. SUBCONSULTANT APPROVAL: Unless prior written consent from ARRA is obtained, only those people and subconsultants whose names are listed in Consultant's bid shall be used in the performance of this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of 4 work to be subcontracted and the name of the proposed subconsultant. Such request shall set forth the total price or hourly rates used in preparing estimated costs for the subconsultant's services. Approval of the subconsultant may, at the option of ARRA, be issued in the form of a Work Order. In the event that Consultant employs subconsultants, such subconsultants shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general and automobile 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 its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City of Alameda Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS: Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of ARRA. No report, information nor 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 ARRA. Consultant shall, at such time and in such form as ARRA may require, furnish reports concerning the status of services required under this Agreement. 16. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by ARRA 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 ARRA or its designees at all proper times, and gives ARRA 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 ARRA's preliminary examination or audit of records, and ARRA'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 ARRA for all reasonable costs and expenses associated with the supplemental examination or audit. 5 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 ARRA shall be addressed to ARRA at: Alameda Reuse and Redevelopment Authority Alameda Point 950 West Mall Square, 2"d Floor Alameda, CA 94501 ATTN: Doug Yount , All notices, demands, requests, or approvals from ARRA to Consultant shall be addressed to Consultant at: RBF Consulting P.O. Box 57057 Irvine, CA 92619 -7057 ATTN: Ken Bell 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 a period of two (2) days after receipt by Consultant from ARRA of written notice of default, specifying the nature of such default and the steps necessary to cure such default, ARRA may terminate the Agreement forthwith by giving to the Consultant written notice thereof. ARRA 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. COMPLIANCE WITH MARSH CRUST ORDINANCE: Contractor shall perform all excavation work in compliance with the City's Marsh Crust Ordinance as set forth at Section 13 -56 of the Municipal Code. Prior to performing any excavation work; Contractor shall verify with the Building Official whether the excavation work is subject to the Marsh Crust Ordinance. Contractor shall apply for and obtain permits from Building Services on projects deemed to be subject to the Marsh Crust Ordinance. 20. COST OF LITIGATION: If any legal action is necessary to enforce any provision hereof or for damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses in such amount as the Court may adjudge to be reasonable, including attorneys' fees. 6 21. COMPLIANCES: Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by ARRA. 22. 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 Alameda, State of California. 23. 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 ARRA to do otherwise. 24. WAIVER: A waiver by ARRA 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. 25. 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 ARRA and Consultant. 26. 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. 27. 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. 7 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day and year first above written. RBF CONSULTING By: NO-i- c_ \\ Title: 0 By: C.tr r.01 s. Title:.s�" ALAMEDA REUS REDEVELOP T AUTHORITY s M. Flint Manager RECOM NDE 0 :f APPROVAL: 11MAMEDA POINTDATA\ GROUPS\ COMDEVICONTRACTARRA \RBRCONTRACT.DOC 8 Doug Yount Acting Development Services Director Deputy City Manager, AP Negotiations APPROVED AS TO FORM: Teresa Highsmith V _ Assistant City Attorney Exhibit "A" SERVICES TO BE PERFORMED Consultant will provide professional consulting services relative to the Alameda Point Reuse Project. Consultant will assist City staff in formalizing the conceptual plan and infrastructure requirements pursuant to that plan. Basic tasks will include, but are not limited to, reviewing infrastructure /development schemes, analyzing infrastructure and related cost estimates, providing cost estimates as requested, attending meetings and providing technical advice regarding planning and infrastructure issues related to Alameda Point and the submittals received from APCP. Consultant will also serve as a member of the Entitlements Working Group. PBF • ■ CONSULTING HOURLY RATE SCHEDULE Effective January, 2002 OFFICE PERSONNEL Principal (Ken Bell; Gary Miller) $170.00 Project Director 150.00 Structural Engineer 135.00 Project Manager 128.00 Senior Engineer /Planner (Margit Allen; Elizabeth Cobb) 120.00 Corrosion Engineer 100.00 Project Engineer /Project Planner (Josh Stone; Jennifer Heaviside) 100.00 Environmental Specialist 95.00 Design Engineer /Designer /Mapper (CADD) 92.00 Designer /Planner 80.00 Drafter /Graphic Artist 72.00 Environmental Analyst/Staff Planner 70.00 Assistant Engineer /Planner 62.00 FIELD PERSONNEL 2- Person Survey Crew $184.00 1- Person Survey Crew 128.00 Field Supervisor 116.00 CONSTRUCTION MANAGEMENT PERSONNEL Construction Manager $135.00 Field Superintendent 110.00 Resident Engineer /Project Manager 110.00 Senior Construction Inspector 90.00 Assistant Field Superintendent 87.00 Construction Inspector 85.00 Field Office Engineer 80.00 Construction Technician 66.00 COMPUTER & OTHER SERVICE FEES Clerical/Word Processing $45.00 Consultation Relative to Legal Actions 270.00 Vehicle Mileage 0.40 /mile Note: Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost plus 15 %. A Subconsultant Management Fee of fifteen- percent (15 %) will be added to the direct cost of all subconsultant services to provide for the cost of administration, subconsultant consultation and insurance. PLANNING ■ DESIGN • CONSTRUCTION 14725 Alton Parkway, Irvine, CA 92618 -2027 • P.O. Box 57057, Irvine, CA 92619 -7057 • 949.472.3505 • Fax 949.472.8373 Offices located throughout California, Arizona & Nevada • www.RBF.com