Housekeys - 2017 AgreementAGREEMENT FOR SERVICES
(For contracts over $5,000 - CONSULTANT)
This AGREEMENT made this 1 st day of April, 2017, between:
CITY: City of Gilroy, having a principal place of business at
7351 Rosanna Street, Gilroy, California
and CONSULTANT: Nyanda & Associates, LLC, a California Limited Liabili y Company
HouseKeys, having a principal place of business at 409 Tennant Station #395, Morgan Hill, CA
95037.
ARTICLE 1. TERM OF AGREEMENT
This Agreement will become effective on April 1, 2017 and will continue in effect through June
30, 2020 unless terminated in accordance with the provisions of Article 7 of this Agreement.
Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall
terminate this Agreement regardless of any other provision stated herein.
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ARTICLE 2. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the parties that CONSULTANT is an independent contractor and not
an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of employer and employee
between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties
acknowledge that CONSULTANT is not an employee for state or federal tax purposes.
CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S
employees, including, without limitation, disability or unemployment insurance, workers'
compensation, medical insurance, sick leave, retirement benefits or any other employment
benefits. CONSULTANT shall retain the right to perform services for others during the term of
this Agreement.
ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT
A. Specific Services
CONSULTANT agrees to: Perform the services as outlined in Exhibit "A" ( "Specific
Provisions ") and Exhibit "B" ( "Scope of Services "), within the time periods described in
Exhibit "C" ( "Milestone Schedule ").
B. Method of Performing Services
CONSULTANT shall determine the method, details and means of performing the above -
described services. CITY shall have no right to, and shall not, control the manner or determine
the method of accomplishing CONSULTANT'S services.
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C. Employment of Assistants
CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as
CONSULTANT deems necessary to perform the services required of CONSULTANT by this
Agreement, subject to the prohibition against assignment and subcontracting contained in
Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the
performance of those services. CONSULTANT assumes full and sole responsibility for the
payment of all compensation and expenses of these assistants and for all state and federal income
tax, unemployment insurance, Social Security, disability insurance and other applicable
withholding.
D. Place of Work
CONSULTANT shall perform the services required by this Agreement at any place or location
and at such times as CONSULTANT shall determine is necessary to properly and timely perform
CONSULTANT'S services.
ARTICLE 4. COMPENSATION
A. Consideration
In consideration for the services to be performed by CONSULTANT, CITY agrees to pay
CONSULTANT the amounts set forth in Exhibit "D" ( "Payment Schedule "). In no event
however shall the total compensation paid to CONSULTANT exceed 310 000.
B. Invoices
CONSULTANT shall submit invoices for all services rendered.
C. Payment
Payment shall be due according to the payment schedule set forth in Exhibit "D ". No payment
will be made unless CONSULTANT has first provided City with a written receipt of invoice
describing the work performed and any approved direct expenses (as provided for in
Exhibit "A ", Section IV) incurred during the preceding period. If CITY objects to all or any
portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30)
days from receipt of the invoice, give reasons for the objection, and pay that portion of the
invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not
to pay any invoiced amounts to which it has objected until the objection has been resolved by
mutual agreement of the parties.
D. Expenses
CONSULTANT shall be responsible for all costs and expenses incident to the performance of
services for CITY, including but not limited to, all costs of equipment used or provided by
CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against
CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be
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responsible for any expenses incurred by CONSULTANT in performing services for CITY,
except for those expenses constituting "direct expenses" referenced on Exhibit "A."
ARTICLE 5. OBLIGATIONS OF CONSULTANT
A. Tools and Instrumentalities
CONSULTANT shall supply all tools and instrumentalities required to perform the services
under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase
or rent any tools, equipment or services from CITY.
B. Workers' Compensation
CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S
employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and
indemnify CITY, its officers, representatives, agents and employees from and against any and all
claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses,
including without limitation reasonable attorneys' fees, arising out of any injury, disability, or
death of any of CONSULTANT'S employees.
C. Indemnification of Liability, Duty to Defend
1. As to professional liability, to the fullest extent permitted by law,
CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be
unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents
and employees against any and all suits, damages, costs, fees, claims, demands, causes of action,
losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising
or resulting directly or indirectly from any willful or negligent acts, errors or omissions of
CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims
relating to the injury or death of any person or damage to any property.
2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall
defend, through counsel approved by CITY (which approval shall not be unreasonably withheld),
indemnify and hold harmless CITY, its officers, representatives, agents and employees against
any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and
expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly
from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or
agents, including all claims relating to the injury or death of any person or damage to any
property.
D. Insurance
In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to
CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability
Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles,
with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages
due to bodily injury, sickness or disease, or death to any person, and damage to property,
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including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions)
with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate;
provided however, Professional Liability Insurance written on a claims made basis must comply
with the requirements set forth below. Professional Liability Insurance written on a claims made
basis (including without limitation the initial policy obtained and all subsequent policies
purchased as renewals or replacements) must show the retroactive date, and the retroactive date
must be before the earlier of the effective date of the contract or the beginning of the contract
work. Claims made Professional Liability Insurance must be maintained, and written evidence
of insurance must be provided, for at least five (5) years after the completion of the contract
work. If claims made coverage is canceled or non - renewed, and not replaced with another
claims -made policy form with a retroactive date prior to the earlier of the effective date of the
contract or the beginning of the contract work, CONSULTANT must purchase so called
"extended reporting" or "tail" coverage for a minimum of five (5) years after completion of
work, which must also show a retroactive date that is before the earlier of the effective date of
the contract or the beginning of the contract work. As a condition precedent to CITY'S
obligations under this Agreement, CONSULTANT shall furnish written evidence of such
coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive
Liability insurance policy referred to in (a) immediately above via a specific endorsement) and
requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in
policy terms.
E. Assignment
Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or
obligations of CONSULTANT under this Agreement may be assigned or subcontracted by
CONSULTANT without the prior written consent of CITY, which CITY may withhold in its
sole and absolute discretion. However, CONSULTANT is not required to obtain prior written
consent from CITY for the performance of certain duties under this Agreement by
CONSULTANT'S Related Entities. Furthermore, CONSULTANT'S Related Entities are not
considered subconsultants under this Agreement.
For purposes of this Agreement, CONSULTANT'S Related Entities are exclusively defined as
those entities that (i) have a significant common purpose and substantial common membership as
CONSULTANT and (ii) have substantially common ownership as CONSULTANT.
CONSULTANT'S Related Entities include HouseKeys Services Corporation, a California
corporation for brokerage and lending services, and HouseKeys Resource and Education Center,
Inc., a California public benefit corporation for housing and property acquisition and
redevelopment activity.
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F. State and Federal Taxes
As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying
all required state and federal taxes. Without limiting the foregoing, CONSULTANT
acknowledges and agrees that:
• CITY will not withhold FICA (Social Security) from CONSULTANT'S
payments;
• CITY will not make state or federal unemployment insurance contributions on
CONSULTANT'S behalf;
• CITY will not withhold state or federal income tax from payment to
CONSULTANT;
• CITY will not make disability insurance contributions on behalf of
CONSULTANT;
• CITY will not obtain workers' compensation insurance on behalf of
CONSULTANT.
ARTICLE 6. OBLIGATIONS OF CITY
A. Cooperation of City
CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at
reasonable times following receipt by CITY of reasonable notice, to all documents reasonably
necessary to the performance of CONSULTANT'S duties under this Agreement.
B. Assignment
CITY may assign this Agreement or any duties or obligations thereunder to a successor
governmental entity without the consent of CONSULTANT. Such assignment shall not release
CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement.
ARTICLE 7. TERMINATION OF AGREEMENT
A. Sale of Consultant's Business/ Death of Consultant.
CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later
than thirty (30) days prior to any such sale. CITY shall have the option of terminating this
Agreement within thirty (30) days after receiving such notice of sale. Any such CITY
termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to
CONSULTANT set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after
CITY' receipt of such notice of sale.
If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated
upon death of CONSULTANT.
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B. Termination by City for Default of Consultant
Should CONSULTANT default in the performance of this Agreement or materially breach any
of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving thirty (30)
days' written notification to CONSULTANT. CONSULTANT shall have the opportunity to
cure such material breach, at the satisfaction of CITY, during that period of thirty (30) days after
delivery of notice of termination by CITY. For the purposes of this section, material breach of
this Agreement shall include, but not be limited to the following:
1. CONSULTANT'S failure to professionally and/or timely perform any of the
services contemplated by this Agreement.
2. CONSULTANT'S breach of any of its representations, warranties or covenants
contained in this Agreement.
CONSULTANT shall be entitled to payment only for work completed in accordance with the
terms of this Agreement through the date of the termination notice, as reasonably determined by
CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for
the tasks described on Exhibit C" which have been fully, competently and timely rendered by
CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to
CONSULTANT'S default in the performance of this Agreement or material breach by
CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY
may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any
and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope
of work as described in this Agreement, to the extent such costs and expenses exceed the
amounts CITY would have been obligated to pay CONSULTANT for the performance of that
task pursuant to this Agreement.
C. Termination for Failure to Make Agreed -Upon Payments
Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article
4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default
under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate this
Agreement if such default is not remedied by CITY within thirty (30) days after demand for such
payment is given by CONSULTANT to CITY.
D. Transition after Termination
Upon termination, CONSULTANT shall immediately stop work, unless cessation could
potentially cause any damage or harm to person or property, in which case CONSULTANT shall
cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in
connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done
toward completion of the services required hereunder, and shall act in such a manner as to
facilitate any the assumption of CONSULTANT's duties by any new consultant hired by the
CITY to complete such services.
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ARTICLE 8. GENERAL PROVISIONS
A. Amendment & Modification
No amendments, modifications, alterations or changes to the terms of this Agreement shall be
effective unless and until made in a writing signed by both parties hereto.
B. Americans with Disabilities Act of 1990
Throughout the term of this Agreement, the CONSULTANT shall comply fully with all
applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current
form and as it may be amended from time to time. CONSULTANT shall also require such
compliance of all subcontractors performing work under this Agreement, subject to the
prohibition against assignment and subcontracting contained in Article 5 above. The
CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the
CITY OF GILROY, its officers, employees, agents and representatives from and against all suits,
claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees,
including without limitation reasonable attorneys' fees, that may arise out of any violations of
the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or
representatives of either.
C. Attorneys' Fees
If any action at law or in equity, including an action for declaratory relief, is brought to enforce
or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable
attorneys' fees, which may be set by the court in the same action or in a separate action brought
for that purpose, in addition to any other relief to which that party may be entitled.
D. Captions
The captions and headings of the various sections, paragraphs and subparagraphs of the
Agreement are for convenience only and shall not be considered nor referred to for resolving
questions of interpretation.
E. Compliance with Laws
The CONSULTANT shall comply with all applicable federal, state, and local laws and
regulations in fulfilling CONSULTANT'S obligations under this Agreement.
Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the
Municipal Code of the CITY OF GILROY obligating every contractor or subcontractor under a
contract or subcontract to the CITY OF GILROY for public works or for goods or services to
refrain from discriminatory employment or subcontracting practices on the basis of the race,
color, sex, religious creed, national origin, ancestry of any employee, applicant for employment,
or any potential subcontractor.
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F. Conflict of Interest
CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any
public agency interested in this Agreement has any pecuniary interest in the business of
CONSULTANT and that no person associated with CONSULTANT has any interest that would
constitute a conflict of interest in any manner or degree as to the execution or performance of
this Agreement.
G. Entire Agreement
This Agreement supersedes any and all prior agreements, whether oral or written, between the
parties hereto with respect to the rendering of services by CONSULTANT for CITY and
contains all the covenants and agreements between the parties with respect to the rendering of
such services in any manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement or promise not contained in this Agreement shall be valid or binding.
No other agreements or conversation with any officer, agent or employee of CITY prior to
execution of this Agreement shall affect or modify any of the terms or obligations contained in
any documents comprising this Agreement. Such other agreements or conversations shall be
considered as unofficial information and in no way binding upon CITY.
H. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of
California without regard to the conflict of laws provisions of any jurisdiction. The exclusive
jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and
federal courts located in Santa Clara County, California.
I. Mediation
If any disputes, claims, or controversies arise out of or relating to this Agreement, or the alleged
breach thereof, and if the dispute is not settled through informal discussion, CITY and
CONSULTANT agree first to try in good faith to settle the dispute by mediation in Santa Clara
County within 30 days before resorting to arbitration, litigation, or some other dispute resolution
procedure. CONSULTANT and CITY will cooperate with one another in selecting a mediation
service provider, selecting a mediator from the provider's panel of neutrals, and scheduling the
mediation proceedings. CONSULTANT and CITY agree that they will participate in the
mediation in good faith and will share equally in its costs. All offers, promises, conduct, and
statements, oral or written, made in the course of the mediation by any person are confidential,
privileged, and inadmissible for any purpose, including impeachment in any other proceeding
involving the parties, provided that evidence that is otherwise admissible or discoverable shall
not be rendered inadmissible or non - discoverable as a result of its use in the mediation.
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J. Notices
Any notice to be given hereunder by either party to the other may be effected either by personal
delivery in writing or by mail, registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at the addresses appearing in
Exhibit "A ", Section V.H. but each party may change the address by written notice in
accordance with this paragraph. Notices delivered personally will be deemed delivered as of
actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing.
K. Partial Invalidity
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
L. Time of the Essence
All dates and times referred to in this Agreement are of the essence.
M. Waiver
CONSULTANT agrees that waiver by CITY of any one or more of the conditions of
performance under this Agreement shall not be construed as waiver(s) of any other condition of
performance under this Agreement.
Executed at Gilroy, California, on the date and year first above written.
CONSULTANT:
Nyanda & Associates, LLC d/b /a/
HouseKeys
By:
Na e: Jul' N a a
Tit ief Ex-evgtive Officer
Social Security or Taxpayer
Identification Number 47- 3964527
Approved as to Form
City Attorney
CITY:
CITY OF GILROY
By:
Name: Gabriel A. Gonzalez
Title: City Administrator
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EXHIBIT "A"
SPECIFIC PROVISIONS
PROJECT MANAGER
CONSULTANT shall provide the services indicated on the attached Exhibit `B", Scope of
Services ( "Services "). (All exhibits referenced are incorporated herein by reference.) To
accomplish that end, CONSULTANT agrees to assign Julius Nvanda, who will act in the
capacity of Project Manager, and who will personally direct such Services.
Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all
technical and professional services including labor, material, equipment, transportation,
supervision and expertise to perform all operations necessary and required to complete the
Services in accordance with the terms of this Agreement.
II. NOTICE TO PROCEED /COMPLETION OF SERVICE
A. NOTICE TO PROCEED
CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written
"Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication
from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or
letter authorizing commencement of the Services. For purposes of this Agreement, Julius
Nvanda shall be the designated City contact person(s). Notice to Proceed shall be deemed to
have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided
in the Section V.H. ( "Notices ") of this Exhibit "A ".
B. COMPLETION OF SERVICES
When CITY determines that CONSULTANT has completed all of the Services in accordance
with the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final
Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT
may request this determination of completion when, in its opinion, it has completed all of the
Services as required by the terms of this Agreement and, if so requested, CITY shall make this
determination within two (2) weeks of such request, or if CITY determines that CONSULTANT
has not completed all of such Services as required by this Agreement, CITY shall so inform
CONSULTANT within this two (2) week period.
III. PROGRESS SCHEDULE
The schedule for performance and completion of the Services will be as set forth in the attached
Exhibit "C".
IV. PAYMENT OF FEES AND DIRECT EXPENSES
Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement.
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Direct expenses are charges and fees not included in Exhibit "B" or Exhibit "D ". CITY shall
be obligated to pay only for those direct expenses which have been previously approved in
writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or
billing of direct expenses.
Copies of pertinent financial records, including invoices, will be included with the submission of
billing(s) for all direct expenses.
V. OTHER PROVISIONS
A. STANDARD OF WORKMANSHIP
CONSULTANT represents and warrants that it has the qualifications, skills and licenses
necessary to perform the Services, and its duties and obligations, expressed and implied,
contained herein, and CITY expressly relies upon CONSULTANT'S representations and
warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such
Services and duties in conformance to and consistent with the standards generally recognized as
being employed by professionals in the same discipline in the State of California.
Any plans, designs, specifications, estimates, calculations, reports and other documents furnished
under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for
acceptance shall be a product of neat appearance, well- organized, technically and grammatically
correct, checked and having the maker and checker identified. The minimum standard of
appearance, organization and content of the drawings shall be that used by CITY for similar
purposes.
B. RESPONSIBILITY OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy, and the
coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be
responsible for the accuracy of any project or technical information provided by the CITY. The
CITY'S review, acceptance or payment for any of the Services shall not be construed to operate
as a waiver of any rights under this Agreement or of any cause of action arising out of the
performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in
accordance with applicable law for all damages to CITY caused by CONSULTANT'S negligent
performance of any of the services furnished under this Agreement.
C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
CITY, through its authorized employees, representatives or agents, shall have the right, at any
and all reasonable times, to audit the books and records (including, but not limited to, invoices,
vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any
and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT
shall maintain for a minimum period of three (3) years (from the date of final payment to
CONSULTANT), or for any longer period required by law, sufficient books and records in
accordance with standard California accounting practices to establish the correctness of all
charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at
the CITY's offices within five (5) business days after CITY's request.
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D. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not
limited to, computer data and source code), drawings, descriptions, documents, discussions or
other information developed or received by or for CONSULTANT and all other written and oral
information developed or received by or for CONSULTANT and all other written and oral
information submitted to CONSULTANT in connection with the performance of this Agreement
shall be held confidential by CONSULTANT and shall not, without the prior written consent of
CITY, be used for any purposes other than the performance of the Services, nor be disclosed to
an entity not connected with the performance of the such Services. Nothing furnished to
CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally
known to the related industry (other than that which becomes generally known as the result of
CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not
use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under
this Agreement in any magazine, trade paper, newspaper or other medium without the express
written consent of CITY.
E. NO PLEDGING OF CITY'S CREDIT.
Under no circumstances shall CONSULTANT have the authority or power to pledge the credit
of CITY or incur any obligation in the name of CITY.
F. OWNERSHIP OF MATERIAL.
All material developed, collected, prepared, or caused to be prepared pursuant to the work under
this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies
thereof subject to Section V.D of this Exhibit "A". CONSULTANT'S own material that pre-
exists the work under this Agreement shall remain the property of CONSULTANT.
For purposes of this Section V.F., material includes but is not limited to computer information,
data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates,
specifications, proposals, tests, maps, calculations, photographs, reports
CITY shall not be limited in any way in its use of said material at any time for any work,
whether or not associated with the City project for which the Services are performed. However,
CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from,
damages resulting from the use of said material for work other than PROJECT, including, but
not limited to, the release of this material to third parties for work other than on PROJECT.
G. NO THIRD PARTY BENEFICIARY.
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any claim or right of action hereunder for
any cause whatsoever.
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H. NOTICES.
Notices are to be sent as follows:
CITY: Housing and Community Development
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
CONSULTANT: HouseKeys
409 Tennant Station #395
Morgan Hill, CA 95037
FEDERAL FUNDING REQUIREMENTS.
❑ If the box to the left of this sentence is checked, this Agreement involves federal
funding and the requirements of this Section V.I. apply.
® If the box to the left of this sentence is checked, this Agreement does not involve
federal funding and the requirements of this Section V.I. do not apply.
DBE Program
CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal
Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs.
2. Cost Principles
Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable
cost for individual items.
Covenant against Contingent Fees
The CONSULTANT warrants that he /she has not employed or retained any company or person,
other than a bona fide employee working for the CONSULTANT, to solicit or secure this
Agreement, and that he /she has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other
consideration, contingent upon or resulting from the award or formation of this Agreement. For
breach or violation of this warranty, the Local Agency shall have the right to annul this
Agreement without liability or, at its discretion, to deduct from the agreement price or
consideration, or otherwise recover, the full amount of such fee, commission, percentage,
brokerage fee, gift or contingent fee.
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EXHIBIT "B"
SCOPE OF SERVICES
Section 1. BMR Program Administration Setup:
A. Consultant will onboard both City BMR Programs within 6 Months (26 Weeks) from contract
date. The list of properties and income levels includes the following. The City may had units at a
future date and in consultation with the Consultant.
i. BMR Ownership Program: Estimated 483 Ownership Units
Chestnut Square: 4 Low .
Laurelwood Homes: 16 Low
Glenbrook Homes: 65 Low to Moderate
Alderwood Homes: 60 Low to Market
Summerhill Homes: 65 Low to Market
Los Arroyos I — 4: 177 Low to Market
Trimble Court: 13 Market
La Maestra: 12 Moderate
Forest Park: 39 Median to Market
Alexander Place: 32 Low
ii. BMR Rental Program: Estimated 896 Subsidized Rental Units
Aspen Grove
Arbor Court
Cherry Blossom Apts
Connell Apts
Gilroy Apts: 74 Low
Gilroy Garden
Gilroy Park: 111 Low
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Lilly Gardens: 84 Low
Maple Gardens
Monticelli: 34 Low
Monterra Village: 33 Low
Park View: 54 Low
Plum Tree West: 70 Low
The Trees
The Redwoods: 24 Low
Sobrato: 60 Low
Sunset Gardens: 75 Low
Villa Esperanza: 20 Low
Village Green: 75 Low
Wheeler Manor: 109 Low
iii. Items associated with the BMR Ownership Program include, but are not limited to:
BMR Ownership Program Manual
Developer Agreements
Resale Restriction Agreements
Subdivisions, Associations and Owners
Ownership Program Applicant Pool
iv. Items associated with the BMR Rental Program include, but are not limited to:
BMR Rental Program Manuals
Developer and Landlord Agreements
Project Regulatory Agreements and Leases
Project Buildings and Annual Tenants
Rental Program Applicant Pool
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B. Consultant will administer the Below Market Rate programs and assure Below Market Rate
(BMR) Program Agreements are recorded and followed by all parties as applicable for each
property.
C. Consultant will regularly update BMR guidelines and program materials in conjunction with
City staff to reflect the Consultant's administrative process for BMR Administration including,
but not limited to: applications, program pamphlets, resale and lease calculations, applicant
selection process, lease, sale and resale /re -lease of units, owner and landlord service requests
(e.g. refinance), collection of City fees and other applicable fees, and default
monitoring/resolution process. Consultant's objective will be to work alongside City Staff to
incorporate "learnings" from the team's collective history with BMR Programs in surrounding
Santa Clara, San Benito, Alameda, San Mateo, Santa Cruz and Monterey Counties.
D. Consultant will provide the City with a Below Market Rate program website presence that
will link to the City's housing website.
E. Consultant and the City will develop mutually acceptable response times to BMR inquiries
and processing times required to obtain City signatures.
F. Consultant shall maintain the City's existing databases and files for administration and utilize
its file retention and management system for the program ( "MyHouseKeys "). All electronic
records will be considered work products that are property of the City of Gilroy. The Consultant
will update the City's records quarterly to ensure a coordinated seamless record keeping process.
Section 2. BMR Program Administration
A. Consultant will develop, in conjunction with the City, annual performance measures for BMR
program administration. Performance measures will be included in annual BMR summary report.
B. Consultant shall conduct introductory Buyer /Owner/Renter Education/Training classes —
Buyer /Owner/Renter Orientation Classes prior to BMR application
C. Consultant will partner with the City to create City legal templates for documents required for
signature by the BMR program participants. Consultant shall supply documents that are
typically used in Santa Clara County for residential real estate transactions (e.g. purchase and
sale, disclosure acknowledgements, addendums, etc.)
D. Consultant will create and maintain a list of approved loan officers and lending operations
eligible to provide mortgage lending for purchase and refinance transactions
E. Consultant will review individual BMR restrictions for terms and requirements as needed
including shared equity programs, down payment assistance loans and any resale restriction
agreements.
F. Consultant will prepare City staff reports on a time and materials basis.
Section 3. BMR Compliance Monitoring (Ongoing / Annual)
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A. Consultant shall work alongside Staff to conduct monitoring to annually evaluate BMR
owners' & renters' compliance with the terms and conditions of the BMR recorded deed
restrictions and program guidelines including the following:
i. Mailing monitoring letters to all the BMR units.
ii. Reviewing in conjunction with City staff, City or County Assessor data to assist in the process
(e.g., water utility bills, property records)
iii. Review City's preliminary monitoring list to identify follow up actions required.
iv. Meet with City staff to develop guidelines for acceptable default remedies (e.g., allowing
rental of BMR units for hardship cases).
B. Consultant shall work alongside Staff to investigate and identify cure for potential BMR
defaults including:
i. Conduct follow up of those who do not submit their compliance documentation.
ii. Reviewing information from calls from BMR neighbors and interest parties
iii. Conduct reasonable follow -up investigation to assess potential BMR defaults including unit
site visits.
iv. Scheduled appointments with BMR owners /renters
v. For confirmed defaults, provide list of actions needed to remedy the default and conduct
follow -up to monitoring compliance.
vi. Maintaining log of actions taken to remedy the defaults
vii. For those defaults in which the owners choose to not remedy the situation within a
reasonable amount of time, Consultant will meet with City staff to determine the course of action
to pursue. The City is responsible for taking any legal actions.
viii. City will provide a list of any current BMR defaults and actions taken to date.
4. BMR Home Sales/Resales
A. Consultant will handle all responsibilities stated in the Scope of Services for the City of
Gilroy. Information and data will be housed within the aforementioned comprehensive
"MyHouseKeys" database (Gilroy - specific).
5. Housing Fund / BMR Programs
A. Consultant will work with the City staff to recommend, develop, and implement programs
using City of Gilroy's Down Payment and Closing Cost Assistance Funds.
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EXHIBIT "C"
MILESTONE SCHEDULE
1. Establish 2- Day -Per -Week Temporary Office for a 90 -day period
Deliverable(s): Onsite Employee; Local Office Location with Gilroy Phone Extension
Due Date: April 21, 2017 or within 21 days of Contract Execution and Payment Receipt
2. Complete New City BMR Website and Update Phone System
Deliverable(s): Contact Us Information; Downloads for Program Materials; Information Pages
for All Parties; Online Forms for Process Steps
Due Date: May 15, 2017 or within 45 Days of Contract Execution and Payment Receipt
3. Complete the Onboarding of Ownership Program
Deliverable(s): All Inventory Accounted For; Full Staff Report; Action Plans and Suggestions
for Staff; Interim Guidelines for Program Applicants, Participants, and Vendors
Due Date: June 30, 2017 or within 90 Days of Contract and Payment
4. Complete the Onboarding of Rental Program
Deliverable(s):All Inventory Accounted For; Communication to All Landlords; Interim
Guidelines
Due Date: September 30, 2017 or within 180 Days of Contract and Payment
5. Complete Updated Program Manuals for Ownership and Rental Program
Deliverable(s):Consolidated Program Manual that transitions Interim Guidelines to permanent
draft
Due Date: Within 180 days of Contract and Payment
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EXHIBIT "D"
PAYMENT SCHEDULE
A. Program Set Up: Initial Set Up and Onboarding: Due upon contract execution
1. Program Analysis and Document Gathering (including fees for ordering all recorded
does): $20,000
2. Policy and Procedures Set Up (time and materials): $10,000
3. Website and Communications Set Up (time, materials and software subscriptions):
$10,000
Total one -time costs: $40,000
B. Program Administration & Management: $90,000 /year (billed quarterly at
$22,500 /quarter) on the following pay schedule:
Start Up Payment $40,000 on April 1, 2017
Fiscal Year 2017- Quarter 3 Payment $22,500 on April 28, 2017
Fiscal Year 2017- Quarter 4 Payment $22,500 on July 1, 2017
Fiscal Year 2018- Quarter 1 Payment $22,500 on October 1, 2017
Fiscal Year 2018 Quarter 2 Payment $22,500 on January 1, 2018
Future payments in subsequent quarters will follow a similar structure.
C. Other Fees (paid on as necessary basis):
1. Special Projects Fee (special projects approved via signed agreement between City and
Consultant): $150/Hour
2. Loan Transaction Fee paid by Owner/Lender (e.g. Subordination): $1,250 per transaction
(Consultant to transmit 25% of fee to City along with documents for signature)
3. New BMR Sales Transaction Fee paid by Developer in Sale Price (fees do not apply to
previously entitled projects where the Affordable Housing Agreement does not include such fees):
3% of Sales Price ($7,500 minimum) or per Affordable Housing Agreement
4. BMR Resale Transaction Fee included in Resale Price: 6% of Sales Price or per Owner
signed Resale Restriction Agreement
5. Acquisition, Rehabilitation and Resale Transaction Fee included in Resale Price (this
includes Distressed Sales): 5% at Acquisition & 5% at Resale
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