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08 Greg Sellers Associates i!~1 ,.\~ /' -~ City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 Telephone: (408) 777-3220 Fax: (408) 777-3366 I F CUPEIQ1NO DEPARTMENT OF ADMINISTRATIVE SERVICES SUMMARY Agenda Item No: t5 Meeting Date: March 7, 2006 SUBJECT AND ISSUE Approve the First Amendment Agreement for Profession Services with Greg Sellers Associates regarding Tax Equity Allocation (TEA) legislation. BACKGROUND Cupertino, Los Altos Hills, Monte Sereno and Saratoga represent the four "low/no tax cities" in Santa Clara County. In the late 1980's, legislation limited our four jurisdictions to 55% of what other lowlno tax cities in the State received fÌ"om property tax due to county trial court funding costs. In May of 2004, these four cities contracted with Greg Sellers Associates to pursue restoration of the TEA formula to 100%. This project includes working with the County and our Legislators to modify current Revenue and Taxation Code. The amendment before you extends this original agreement and addresses phase two of the project (See Appendix A). FISCAL IMPACT Execution of this amendment will require a General Fund budget adjustment of $16,960. If the consultant is successful, an additional "success fee" of $32,000 will be due and payable. RECOMMENDATION Staff recommends approval of the First Amendment Agreement for Profession Services with Greg Sellers Associates regarding Tax Equity Allocation (TEA) legislation. Submitted by: Approved for submission: ~ David W. Knapp City Manager {tJM-f a ~ Carol A. Atwood Director of Administrative Services Printed on Recycled Paper ð""- I FIRST AMENDED AGREEMENT FOR PROFESSIONAL SERVICES This First Amended Agreement for Professional Services ("Agreement") is made and entered into effective March 1, 2006, by and between the City of Cupertino, Town of Los Altos Hills, City of Monte Sereno and City of Saratoga, municipaJ"corporations, hereinafter referred to as "CITIES", and Greg Sellers, hereinafter referred to as "CONSULTANT". This Agreement amends and replaces in its entirety the Agreement between CITIES and CONSULTANT entered into November 9,2005. RECITALS A. CITIES desire to retain CONSULTANT for certain professional services as set forth in this Agreement. B. CONSULT ANT is specially trained, experienced and competent to perfonn the special services which will be required by this Agreement. C. CONSULT ANT possesses the skill, ability, background, certification and knowledge to provide the services described in this Agreement on the tenns and conditions described herein. NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein, CITIES and CONSULTANT agree as follows: AGREEMENT 1. Employment of CONSULTANT: CITIES agree to, and hereby do, retain and employ CONSULTANT to perfonn the professional services as outlined in the Scope of Work attached hereto and incorporated herein as Exhibit "A". CONSULTANT'S work product shall be perfonned pursuant to generally accepted standards of practice in effect at the time of perfonnance. 2. Respon~ible Personnel: CITIES have relied upon the professional training and ability of CONSULT ANT to perfonn the services hereunder as a material inducement to enter into this Agreement. The primary personnel responsible for the completion of the work described in this Agreement shall be Greg Sellers. 3. Scope of Work: CONSULTANT shall perfonn the services as specified in Exhibit A in a professional manner. 4. Term: The services of CONSULTANT are to commence effective March 1,2006 and shall continue until the earlier of (i) October 31, 2006, (ii) the date that the legislation that is described in Exhibit A is signed by the Governor or allowed to become law without the Pagelof5 %'d-- Governor's signature, or (iii) at the close of the 2005-2006 Legislative Session if the legislation described in Exhibit A has not been adopted by the Legislature. Time is of the essence in the performance of this Agreement. No waiver by either party hereto of the nonperformance or any breach of any term, provision, or condition of this Agreement, or any default hereunder shall be considered to be or operate as a waiver of any subsequent nonperformance, breach or default and no waiver by any party shall be attributable to any other party. 5. Compensation: CONSULTANT shall accept compensation for services performed as set forth in Section 3 in an amount not to exceed $4,000 per month. The total amount paid shall not exceed $32,000 except as described below. Each City/Town shall be responsible for a share of the monthly cost as follows: City Cupertino Saratoga Los Altos Hills Monte Sereno Percentage Share 53% 30% 10% 8% Monthlv Amount $2,111 $1,190 $ 389 $ 310 In addition, in reflection of the low rate charged by consultant for the services described in Exhibit A and as an incentive for effective performance, CONSULTANT shall be paid a success fee of $50,000 if the legislation described in Exhibit A becomes law during the term of this Agreement. Each City/Town shall pay its share of the success fee in the percentage shown above within 45 days of the date on which the City/Town receives its first payment of funds pursuant to the legislation described in Exhibit A. No City/Town shall be responsible for the monthly payment share or success fee share of any other City/Town. Periodic payments to CONSULTANT shall be made upon submittal of invoices by CONSULTANT to each City/Town for review and approval by the City Manager. Invoices will be paid by CITIES within a reasonable time after the invoices are received and approved. 6. Indemnity: CONSULT ANT shall hold harmless, indemnify and defend CITIES and each of them, their elective and appointive boards, commissions, officers, agents, servants, volunteers, and employees from and against any and all claims, costs, damages, liability, losses, or suits (including court costs and attorney fees) for personal injury (including death), property damage and any other damages of any sort whatsoever, arising out of, or alleged to have arisen out of, the willful or negligent acts, errors, or omissions of CONSULTANT or CONSULTANT'S contractors, subcontractors, agents, or employees in the performance of this Agreement. This indemnity shall not apply to any claims brought by CONSULTANT for default of this Agreement, or for claims brought by CITIES or any of them or any third party where the underlying injury or damage is finally determined by a court of competent jurisdiction to arise solely from the negligent or willful misconduct of CITIES or any of them. Page2of5 ~'3 7. Termination: This Agreement may be terminated by the CITIES immediately for cause or by either party without cause upon fifteen days' written notice of termination. Upon termination, CONSULT ANT shall be entitled to compensation for the portion of the month in which the termination occurs grior to the date of termination (e.g., if termination become effective on the 15 day of a month with 30 days, CONSULTANT shall be entitled to one half the monthly compensation). In the event of termination, CONSULTANT shall deliver or otherwise make available to CITIES, all research data reports, estimates, summaries, and other such information and materials as may have been accumulated by CONSULT ANT in performing this Agreement, whether completed or in process in accordance with Section 8 of this Agreement. 8. Documents: All plans, studies, documents, charts, computations, and electronic files prepared by and for CONSULTANT, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and intemal documents, shall become the property of the CITIES upon final payment to CONSULT ANT for such work, and the CITIES shall have the sole right to use such materials in its discretion without further compensation to CONSULTANT or to any other party. CONSULTANT shall, at CONSULTANT'S expense, provide such reports, plans, studies, documents and other writings to CITIES upon written request upon expiration or termination of this Agreement. 9. Independent Contractor: CONTRACTOR is an independent contractor retained by CITIES to perform the work described herein. All personnel employed by CONSULTANT are not and shall not be deemed to be employees of CITIES. CONSULTANT shall obtain no rights to retirement benefits, workers compensation benefits or other benefits that accrue to CITIES' employees, and CONSULTANT hereby expressly waives any claim it may have to such rights. CONSULT ANT shall comply with all state and federal laws pertaining to employment and compensation of its employees and its agents, including the provision of Workers' Compensation. 10. Licenses: CONSULTANT represents and warrants to CITIES that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of CONSULTANT to practice its profession. CONSULT ANT represents and warrants to CITIES that CONSULTANT shall, at its sole cost and expense, keep in effect or obtain at all times during the term ofthis Agreement, any licenses, permits, insurance and approvals which are legally required of CONSULTANT to practice its profession. 1 I. Assignment: The parties recognize that a substantial inducement to CITIES for entering into this Agreement is the professional reputation, experience and competence of CONSULT ANT. Assignments of any or all rights, duties or obligations of the CONSULTANT under this Agreement will be permitted only with the express consent of the CITIES. CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the CITIES. If the CITIES consent to such subcontract, CONSULTANT shall be fully responsible to CITIES for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between CITIES and subcontractor nor shall it create Page 3 of5 O'~ any obligation on the part of the CITIES to payor to see to the payment of any monies due to any such contractor other than as otherwise required by law. 12. Binding on Successors: This Agreement is binding on the heirs, successors and assigns of the parties hereto. 13. Amendment: This Agreement may be amended, modifi~ or changed by the parties, provided that said Agreement, modification or change is in writing and approved by the authorized representative of the parties. 14. Applicable Law and Attorney's Fees: This Agreement shall be construed and enforced in accordance with the laws of the State of California, and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Santa Clara. Should any legal action be brought by a party for breach of this Agreement or to enforce any provision of the Agreement, the prevailing party of such action shall be entitled to recover its reasonable litigation expenses, including attorney fees. 15. Entire Agreement: This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings, whether oral or written, between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. The drafting and negotiation of this Agreement have been participated in by each of the parties and/or their counsel, and for all purposes this Agreement shall be deemed to have been drafted jointly by all parties. 16. Waiver: Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this agreement. 17. Severability: If any tenn or portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. Page 4 of5 <;?-5 WITNESS WHEREOF this Agreement is executed by CITIES and by CONSULT ANT as set forth below. CONSULTANT: Greg Sellers CITIES: TOWN OF LOS ALTOS HILLS By: Greg Sellers, Sellers Associates By: Breene Kerr, Mayor CITIES: CITY OF CUPERTINO CITIES: CITY OF MONTE SERENO By: Mark Brodsky, Mayor By: Richard Lowenthal, Mayor CITIES: CITY OF SARATOGA By: Nonnan Kline, Mayor Page50f5 ~-(p EXHIBIT A February 22, 2006 TO: Representatives of Los Altos Hills, Cupertino, Saratoga and Monte Sereno FR: Greg Sellers, Sellers Associates RE: Proposal to recover TEA funds for West Valley cities-phase 2 It has been my pleasure to have worked with each of your cities these past three months. We have made significant progress. We stand poised to receive support rrom the County later this month, and we have developed an Assembly bill, AB 117, that is moving through the legislature. My first phase of work included three key elements: · A strategy for approaching the County that will get their attention and help find common ground; · The development of an effective legislative component; · A grass roots element that will develop community support and echo the concerns expressed by community leaders. In order to complete our work, our focus will need to shift to the legislative component. Here is what I propose as the main elements of a "Phase 2" contract: · Confirming the support of the County and coordinating with them in the development and passage oflegislation; · Development and implementation of an effective legislative strategy to ensure AB 117 is passed by more than 2/3rds of the Legislature and signed by the Governor; · Expansion of a grass roots element that will develop community support and generate positive publicity for the TEA proposal. Please consider this proposal as part of each individual city's agreement, which will need to be passed by each city. I will distribute invoices to each city according to our new agreement. Thank you again for the opportunity to work with each of your cities, I look forward to completing our work on this project and finally delivering 100% of your TEA funding. 55-1