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16-0621_NEW TURTLE ISLAND_F14_Agenda ReportCity of San Juan Capistrano Agenda Report TO : Honorable Mayor and Members of the City Council FROM: ;:tt/:n Siegel, City Manager SUBMITTED BY: Joel Rojas, Development Services Directo~ PREPARED BY: Laura Stokes, Housing Coordinator I Assistant Planne W DATE : June 21, 2016 6/21/2016 F14 SUBJECT: Consideration of Second Amendment to the Personal Services Agreement for Grant Administration Services for the City's Owner Occupied Rehabilitation Loan Program (New Turtle Island) RECOMMENDATION : By motion, authorize the City Manager to execute and approve a Second Amendment to the Personal Services Agreement with New Turtle Island for administration of the City's Owner Occupied Rehabilitation Loan Program funded by the State of California HOME Program Grants, extending the term from June 30, 2016, to June 30, 2018 or until all services required are completed, whichever occurs earlier. EXECUTIVE SUMMARY : On July 17, 2012, the City entered into a Personal Services Agreement with New Turtle Island for grant administration services for the City's Owner Occupied Rehabilitation Loan Program (Attachment 1). On April 7, 2015, the City approved a First Amendment extending the term of the agreement to June 30, 2016, and increasing the not to exceed amount to $193,800 (Attachment 2). The City's HOME and Community Development Block Grant funds are used to provide loans to lower income households for necessary home repairs (Owner Occupied Rehabilitation Loan Program). Since 2012, the City has provided 31 loans. New Turtle Island has been providing excellent services including, but not limited to; screening grant applicants, inspecting condition of homes, reviewing construction repair proposals, conducting work completion inspections, and disbursing grant funds. Staff has found that New Turtle Island has the experience and expertise to administer the HOME Grants. As of May 15, 2016, the City has a balance of approximately $508,000 in the State HOME and Community Development Block Grant fund, derived from program income City Council Agenda Report June 21, 2016 Page 2 of 3 from reimbursed loans, to continue the Owner Occupied Rehabilitation Loan Program. Staff originally anticipated the funds to be expended entirely by the end of June 2016. However, due to some unexpected delays in a couple of Owner Occupied Rehabilitation loans, the City has not completed as many loans as expected, and the City needs additional time to continue providing the programs to City residents. As a result, staff recommends that the City Council approve a second amendment to the New Turtle Island personal services agreement to extend the term of the contract an additional two years to June 30, 2018 (Attachment 3). DISCUSSION : New Turtle Island charges a standard administrative fee for overseeing these loans because their scope of work and time commitment is very similar regardless of the dollar amount of the individual rehabilitation loan. New Turtle Island provides a comprehensive program from initial screening to final approval of the finished work product. The services provided include working with the applicant through the loan qualification process to insure both the home and the resident are eligible for the project, inspecting the home to confirm the proposed rehabilitation work is eligible for the program, working with the resident through the construction phase including administration of payments to contractors, working with residents and contractors as needed to resolve concerns during the construction activities, and close-out of the construction contract. New Turtle Island does not receive their payment for administering the loan until the construction project is complete. The amount of time and attention a given home rehabilitation project may require is not necessarily reflected in the loan amount. As confirmed below, New Turtle Island's per loan charge is very competitive and represents a valuable service for the residents and the City. The State program guidelines allow for a maximum 24% charge for administering these loans and New Turtle Island's charges are well below that threshold. Staff recommends amending the New Turtle Island agreement for the following three reasons. First, the City currently has three loan applications in process, and providing an uninterrupted process is important for the applicants. Second, New Turtle Island has provided excellent services to the San Juan Capistrano residences, and is an efficient liaison between residents and the City. Finally, New Turtle Island's fee proposal was approximately 33% lower than the next closest bid in the 2012 RFP process, and they have agreed to maintain the same low fee through the completion of the program. FISCAL IMPACT: The City currently has approximately $508,000 in funds for the Owner Occupied Rehabilitation program, and it is anticipated that the City will receive a minimum of $84,000 from previous loan pay-offs in Fiscal Year 2016-2017 which will increase the available funding to $592,000. Staff expects approximately 21 loans will be issued between April 1, 2016, and June 30, 2018 . The consultant's grant administration cost of $2,800 per loan, which would total $58,800 for 21 loans, is currently covered in the existing contract amount. Typical loans range between $15,000 and $20,000. City Council Agenda Report June 21, 2016 Page 3 of 3 ENVIRONMENTAL IMPACT: An approval of amendment to personal services agreement is not considered a project and therefore not subject to review under the California Environmental Quality Act (CEQA). PRIOR CITY COUNCIL REVIEW : • On April 17, 2012, the City Council approved the Request for Proposal for administration services for the City's HOME grants on April17, 2012. • On July 17, 2012, the City Council approved the Personal Service Agreement with New Turtle Island for Owner Occupied Rehabilitation Loan administration services. • On April 7, 2015, the City Council approved of the First Amendment to the Personal Service Agreement, extending the term of the agreement by 12 months, and increasing the not to exceed amount to $193,800. COMMISS ION/BOARD REV IEW AND RECOMMENDATIONS : Not Applicable . NOTIFICATION: New Turtle Island ATTACHMENTS : Attachment 1 - New Turtle Island Personal Services Agreement Attachment 2 -First Amendment to the New Turtle Island Personal Services Agreement Attachment 3 -2nd Amendment to the Personal Service Agreement 3D PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 17th day of July, 2012, by and between the City of San Juan Capistrano (hereinafter referred to as the "City"} and New Turtle Island (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant regarding the City's proposal to continue grant administration of the State of California 2011 HOME Grants Owner Occupied Rehabilitation Program as described in the scope of work; and WHEREAS, Consultant is qualified by virtue of experience, training , education and expertise to accomplish such services. NOW, THEREFORE, City and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Consultant shall consist of those tasks as set forth in Exhibit "A," attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date and shall terminate , and all services required hereunder shall be completed, no later than March 31, 2015. Section 3. Compensation. 3.1 Amount. Total compensation for the scope of services for this Project shall not exceed One Hundred Thirty-Five Thousand Dollars ($135,000 .00). 3.2 Method of Payment. Subject to Section 3.1 , Consultant shall submit monthly invoices based on total services which have been satisfactorily completed for such monthly period. The City will pay monthly progress payments based on approved invoices in accordance with this Section . ATTACHMENT 1 3.3 Records of Expenses . Consultant shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement These records will be made available at reasonable times to the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to the City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Changes to Scope of Work . For extra work not part of this Agreement, a written authorization from City is required prior to Consultant undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, incfuding but not limited to any additional Consultant's fees. Section 7. Familiarity with Work and/or Construction Site . By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed ; (2) if applicable, it has investigated the work site(s). and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Sec t ion 8. Time of Essence . Time is of the essence in the performance of this Agreement. Section 9. Compliance w ith Law. Consultant shall comply with aft applicable laws , ordinances , codes and regulations of federal, state and local government Section 10. Conflicts of Interest. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Consultant. Section 11. Copies of Work Product. At the completion of the work, Consultant shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Sect ion 12. Ownership of Documents. All reports , information , data and exh i bits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services . Section 13. Indemnity. To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold harmless the City and its elective and appointive boards , officers , agents, and employees from any and all claims , liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence , recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents , officers, employees , subcontractors, or independent contractors hired by Consultant in the performance of the Agreement. The only exception to Consultant's responsibility to protect, defend , and hold harmless the City , is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 14.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial Genera! Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 14.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non-owned vehicles in an amount not less than one million dollars per occurrence ($1 ,000,000.00). 14.3 Workers' Compensation. If Consultant intends to employ employees to periorm services under this Agreement, Consultant shall obtain and maintain, during the term of this Agreement, Workers· Compensation Employer's Liability Insurance in the statutory amount as required by state law. 14.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 14.5 Errors and Omissions Coverage [FOR PROFESSIONS/WORK EXCLUDED FROM GENERAL LIABILITY] Throughout the term of this Agreement, Consultant shall maintain Errors and Omissions Coverage (professional liability coverage) in an amount of not less than One Million Dollars ($1 ,000,000). Prior to beginning any work under this Agreement, Consultant shall submit an insurance certificate to the City's General Counsel for certification that the insurance requirements of this Agreement have been salisfied. 14.6 Notice of Cancellation/Termination of Insurance . The above policy/policies shalt not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten ( 1 0) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Consultant In addition, this Agreement may be terminated by any party for cause by providing ten (10) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period . Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: To Consultant: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Development Services-Housing New Turtle Island 951 West Princeton St Ontario, CA 92762 Attn: Patrick Piatt Section 17. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Resolution . In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 19. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes aft previous negotiations between them pertaining to the subject matter thereof. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the parties hereto have executed this Agreement. tty Clerk ( ' APPROVED AS TO FORM: --~--~,H.=-~~---~ larry Kramer, Mayor CONSULTANT By :~~~~~~~---------­ Patric k iatt, Owner New T t le Island FIRST AMENDMENT TO PERSONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PERSONAL SERVICES AGREEMENT between the CITY OF SAN JUAN CAPISTRANO ("City") and New Turtle Island, ("Consultant") is made and entered into, to be effective the 31st day of March, 2015, as follows: RECITALS WHEREAS, the City and Consultant have entered into that Personal Services Agreement dated June 171h, 2012, for grant administration of the State of California 2011 HOME Grants Owner Occupied rehabilitation Program (the "Agreement"); and WHEREAS, the C ity and Consultant desire to amend the terms of the Agreement as provided hereunder. AMENDMENT NOW, THEREFORE, in consideration of the promises and mutual covenants contained therein, City and Consultant agree to amend the following Sections of the Agreement as follows: Section 2. Term. The term of the agreement shall be extended from March 31. 2015 until the date ail services required hereunder are completed or until June 30, 2016. whichever is earlier. Section 3. Co mpensation. Total compensation for the scope of services for this P reject shall be increased by Fifty- Eight Thousand Eight Hundred Dollars ($58,800) from an amount not to exceed One Hundred Thirty-Five Thousand Dollars ($135,000) to an amount not to exceed One Hundred Ninety- Three Thousand Eight Hundred Dollars ($193,800) Ali other provisions of the Agreement not amended hereunder shall remain in fufl force and effect. [SIGNATURE PAGE FOLLOWS} -1- ATTACHMENT 2 CITY OF SAN JUAN CAPISTRANO By: -~ _ _.:k---~,.~--- Derek Reeve, Mayor ATTE~sT \U}iJ~fl By: --~:u;!); Ci( Clerk ~ APPROVED AS TO FORM: BY: r . _/ ~ -----· G~Attorney CONSULTANT -2- SECOND AMENDMENT TO PERSONAL SERVICES AGREEMENT THIS SECOND AMENDMENT TO THE PERSONAL SERVICES AGREEMENT between the CITY OF SAN JUAN CAPISTRANO ("City") and NEW TURT LE ISLAND ("Consultant") is made and entered into, to be effective the 21 51 day of J une, 2016, as follows: RECITALS WHEREAS, the City and Consultant have entered into that Personal Services Agreement dated July 17, 2012, for grant administration services for the City's Owner Occupied Rehabilitation Loan Program (the "Agreement"); and WHEREAS, on April 7, 2015, the City and Consultant entered amended the term and compensation of the Agreement (the "First Amendment"); and WHEREAS, the City and Consultant now desire to amend the Agreement to extend the term and revise the indemnity and insurance provisions of the Agreement (the "Second Amendment"). SECOND AMENDMENT NOW, THEREFORE, in consideration of the promises and mutual covenants contained therein, the City and Consultant agree to amend the Agreement as follows: Section 1 . Section 2 "Term" of the Agreement is hereby amended in its entirety to read as follows : "This agreement shall commence on the effective date and shall terminate, and all services required hereunder shall be completed, no later than June 30, 2018 ." Section 2. Section 13 "Indemnity" of the Agreement is hereby amended in its entirety to read as follows: "a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its officials, officers, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements , loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, "Claims') in any manner arising out of, pertaining to, or incident to any alleged acts , errors or omissions , or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other -1-ATTACHMENT 3 related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers. b. Additional Indemnity Obligations. Consultant shall defend, with counsel of City's choosing and at Consultant's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse the City, its officials, officers, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers." Section 3. Section 14.4 "Proof of Insurance Requirements/Endorsement" of the Agreement is hereby amended in its entirety to read as follows: "Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant's policy is primary insurance and that any insurance, self- insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss." Section 4. Remaining Provisions. All other provisions of the Agreement not amended hereunder shall remain in full force and effect. 61147.00000\28694736 .2 -2- ATTEST : By: ______________________ __ City Clerk APPROVED AS TO FORM: BY : ------------------------City Attorney 61147 .00000128694736 .2 -3- CITY OF SAN JUAN CAPISTRANO By: ______________________ __ Benjamin Siegel, City Manager NEW TURTLE ISLAND By: ______________________ __ Name: Title: