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16-1115_NBS GOVERNMENT FINANCE GROUP_D11_Agenda ReportTO : FROM : SUBMITTED BY: DATE: SUBJECT: City of San Juan Capistrano Agenda Report Honorable Mayor and Members of the City Council .:??fen Siegel, City Manager Ken Al-lmam, Chief Financial Officer ' November 15, 2016 11/15/2016 011 Consideration of an Amendment to the Personal Services Agreement with NBS Government Finance Group to Update and Complete the City's User Fee Study and Cost Allocation Plan; and Appropriation of Funds RECOMMENDATION: By motion, 1. Approve and authorize the City Manager to execute an amendment to the City's agreement with NBS Government Finance Group to update and complete the City's userfee study and cost allocation plan; and, 2. Appropriate $27,200 from the General Fund to provide the funds needed to complete the user fee study. EXECUTIVE SUMMARY: In 2012, the City initiated a comprehensive city-wide user fee study. This study was not completed and is currently in draft form. Consequently, it no longer reflects the cost of City operations. An amendment to the consultant agreement is needed to update and complete the study so that it reflects the current cost of City operations. DISCUSSION/ANALYSIS : An up-to-date user fee study is critical to ensure that the City is properly recovering all relevant costs in the establishment of its fees for services. Failure to do so can lead to a deterioration of the City's financial condition which limits the ability of the City to provide City Council Agenda Report November 15, 2016 Page 2 of 3 critically needed services for the community. In addition, state law requires that there be a proper nexus between the fees that are charged for City services and the cost of those services. A fee structure that is not based on the current cost of operations exposes the City to risk of challenge as to whether the required nexus between the fee structure and current operating results is still intact. It should be noted that while certain user fees and charges were adjusted on an annual basis prior to 2012, the fees currently used by the City are not based on a comprehensive city-wide user fee study. It is generally recommended that a comprehensive user fee study be performed every five years to support an agency's fees and rates. The user fee study that was initiated in 2012 is currently in draft form and has not been finalized. In addition, the 2012 user fee study was based on operational data that was in effect at that time. Since 2012, the City has experienced substantial organizational changes and there have been significant changes in the cost of operations. Staff believes that it would be imprudent to finalize the draft study in its current form since it is based on outdated data and does not reflect the current operational characteristics of the City. In addition, because of the age of the data underlying the current draft, if it was implemented without updating, a new study would need to be performed shortly after implementation of the current draft. Accordingly, building upon the existing study with updated data would be less costly in the long-run. The updated study could be used for the next five years, without the City having to re-incur all of the costs that would be associated with a new study. Included within the scope of work for the user fee study is the development of a cost allocation plan. In addition to providing a basis for the establishment of user fees, a cost allocation plan is important to ensure that the City fully recovers all costs associated with grant-financed programs and that the General Fund is properly reimbursed by other funds of the City. The recommended amendment to the existing agreement with NBS Government Finance Group will provide the necessary funds to properly update the study and to properly implement its execution. It also includes funds to provide a comparison of proposed user fees to those of five comparable cities. FISCAL IMPACT: This action will increase General Fund appropriations by $27,200. ENVIRONMENTAL IMPACT: Not applicable . City Council Agenda Report November 15, 2016 Page 3 of 3 PRIOR CITY COUNCIL REVIEW: On October 2, 2012, the City Council approved an agreement with NBS Government Finance Group to conduct a City-wide comprehensive user fee study and develop a cost allocation plan for use by the City. On December 17, 2013, the City Council approved an amendment to the agreement with NBS Government Finance Group. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: NBS Government Finance Group -Greta Davis ATTACHMENTS: Attachment 1 -Amendment to Personal Services Agreement Attachment 2 -Personal Services Agreement with NBS Government Finance Group THIRD AMENDMENT TO PERSONAL SERVICES AGREEMENT THIS AMENDMENT to the Personal Services Agreement between the City of San Juan Capistrano ("City") and NBS Government Finance Group, dba NBS ("Consultant") is made and entered into, to be effective the 151h day of November, 2016, as follows: RECITALS WHEREAS, the City has retained the services of Consultant to develop a Cost Allocation Plan and conduct a City-wide User Fee and Rate Study pursuant to that Agreement dated as of October 2, 2012; and, WHEREAS, the City 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 Agreement between City and Consultant as follows: Section 1 -Scope of Work The scope of work to be performed by the Consultant shall be amended to include an update of the Cost Allocation Plan and City-wide User Fee and Rate Study to reflect budgeted data for the fiscal year ended June 30, 2017 with respect to the number of full-time equivalents and increases in the cost of expenses. After receiving feedback from departments as to fee adjustments and fees to be added to the study, Consultant will provide one additional iterative review for each of the departments. If needed, up to one department can make more substantive changes with respect to time estimates and staffing allocations. An additional iterative review will be provided for the final report with respect to changes in the narrative section of the report. Consultant will provide two community stakeholder or public meetings. The Consultant will also provide fee information for five other cities for comparison with the fees developed as a result of this study. Section 2 -Term This Agreement is extended and shall terminate no later than December 31, 2017. Section 3 -Compensation 3.1 Amount. Total compensation for the services for the Cost Allocation Plan and City-Wide User Fee and Rate Study hereunder shall not exceed $63,840. Section 14.5-Errors and Omissions Coverage At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City in the amount of $2 million per occurrence and in the aggregate. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of' the insured and must include a provision establishing the insurer's duty to defend. All other provisions of the Agreement not amended hereunder shall remain in full force and effect. (SIGNATURE PAGE FOLLOWS) ATTACHMENT 1-Page 2 of 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST : By: ______________________ __ Maria Morris, City Clerk APPROVED AS TO FORM: BY : -------------------------Jeffrey Ballinger, City Attorney CITY OF SAN JUAN CAPISTRANO By: ______________________ __ Benjamin Siegel, City Manager CONSULTANT By: ______________________ __ Michael Rentner, President & CEO ATTACHMENT 1-Page 3 of 3 PERSONAL SERVICES AGREEMENT ~ "\l . THIS AGREEMENT is made, entered into, and shall become effective this '·...)_ -'a ay of l.l:L. 2012, by and between 1he City of San Juan Capistrano (hereinafter referred to as the 11City") and NBS Government Finance Group, DBA NBS (hereinafter referred to as the "Consultant"). RECITALS : WHEREAS, City desires to retain the services ofthe Consultant regarding the City's proposal to develop a Cost Allocation Plan and conduct a City-wide User Fee and Rate Study; and, WHEREAS, the City also desires to retain the services of Consultant to review and recommend updates to the City's Park & Recreation and Capistrano Circulation Fee Program Fees; 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 Exhibits "A" and "B" attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibits "A" and "B" and those provisions contained within this Agreement, the provisions in this Agreement shall control. The scope of work to be performed will not include the optional services , to perform an "Art in Public Places In-Lieu Fee Analysis" as set forth in Exhibit "B ." Section 2. Term . This Agreement shall commence on the effective date and shall terminate, and all servic~s required hereunder shall be completed, no later than June 30,2013. Secti on 3. Compensation. 3.1 Amount. Total compensation for the services for the Cost Allocation Plan and City- Wide User Fee and Rate Study hereunder shall not exceed $30,790, including expenses as set forth in Exhibit "A". Total compensation for the review and update of the City's Park and Recreation and Capistrano Circulation Fee Program Fees hereunder shall not exceed $18,280 , including expenses, as set forth in Exhibit "B", by reference. 1 ATTACHMENT 2-Page 1 of 7 3.2 Method of Payment. Subject to Section 3.1, Consultant shall submit invoices based on the total services which have been satisfactorily completed and as outlined in Exhibits UA" and "8" The City will pay approved invoices in accordance with this Section. 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 City'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 prior 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, including but not limited to any additional Consultant's fees. 2 ATTACHMENT 2-Page 2 of 7 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. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Comp li ance with law . Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of In terest. 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 Produ ct. At the completion of the work, Consultant shall have delivered to City at least one (1) printed copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation and an electronic copy. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Section 12. Ownership of Documents . All reports, information, data and exhibits 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. 3 ATTACHMENT 2-Page 3 of 7 Section 13. Inde mn ity. 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 d eath of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected wi th 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 active 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 . Any policy limits shall not act as a limitation upon the amount of indemnification to be provided by Consultant. Section 14. tnsurance. 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 General 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. 4 ATTACHMENT 2-Page 4 of 7 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 perform 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 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 satisfied. 14.6 Notice of Cancellation/Termination of Insurance. The above policy/policies shall 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 (10) 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 . 5 ATTACHMENT 2-Page 5 of 7 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 (1 0) days' written 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 (1 0) 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: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Cindy Russell, Chief Financial Officer/City Treasurer To Consultant: NBS Government Finance Group, DBA NBS 32605 Temecula Parkway, Suite 100 Temecula, CA 92592 Attn: Michael Rentner, President & CEO 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, expert witness fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 18. Dispute Re s ol ution . 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"), Orange County Office. 6 ATTACHMENT 2-Page 6 of 7 Section 19. Entire Ag eement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY o • AN JUAN cAP ISTRANO CONSULTANT NBS GOVERNMENT FINANCE GROUP DBA NBS I By: 2/l/[/ «._ , Michael Rentner, President & CEO 7 ATTACHMENT 2-Page 7 of 7