HomeMy WebLinkAbout1990-11-20; City Council; 10921; CONSULTANT AGREEMENT FOR FISCAL IMPACT ANALYSIS OF GENERAL PLANQ !l
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MTG.11/20/90 CONSULTANT AGREEMENT FOR FISCAL CITY
CITY DEPT. FIN IMPACT ANALYSIS OF GENERAL PLAN
RECOMMENDED ACTION:
Adopt Resolution No. 9' ufC/&thorizing City staff to enter into an agreement wit
Tischler and Associates, Inc. to complete a fiscal impact analysis of the City General Plan. ,,
TIEM FXPWATION:
On April 3, 1990, the City Council approved by minute motion a Request fc
Proposal for the fiscal impact analysis of the General Plan. The analysis will all01
the City to consider the long range fiscal impacts of development within the Generi
Plan. This analysis will also be useful as the City updates the General Plan addin
yet another variable upon which to help make decisions. Generally, the City h
looked at the General Plan as defining the quality of life, as it should. With tf
fiscal analysis, the economic health of the City, and the services it provides i
citizens can be evaluated as well. Other benefits of the fiscal impact analys
include more effective revenue and expenditure forecasting for budgetary purpose
and the effects that development rates and types have on specific revenue source
Approximately twenty requests for proposal were distributed, of which the Cir
received nine proposals. The proposals were reviewed by a staff team consistir
of one Principal Planner, the Senior Management Analyst in Growth Managemen
the Finance Director, the Senior Management Analyst in Finance, and later tl
Research Manager. The team selected three consultant groups to interview ar
review in depth their computer models.
The consultant group with the lowest bid was Ralph Anderson and Associates, :
$59,800. Their model contained the least amount of variables with which 1
analyze impacts, resulting in limited potential for Carlsbad's application. Carlsb;
has numerous variables which need to be considered, especially in light of i
twenty-five growth management zones. Another group interviewed was Hardto
Rabinovitz and Alschuler, Inc. with a bid of $84,000. Their approach is to build
customized model for Carlsbad based on a previous model developed for Escondid
The concept itself is transferable, however, the model demonstrated appears to ha1
limited ability to address the amounts of variables necessary. Both of these grou]
have not addressed citywide fiscal impacts on a frequent basis, instead focusing c
narrow specific plans. Many of their references were derived from private sectc
clients.
The last group interviewed was Tischler and Associates, Inc. and is the fir
recommended for use. Their bid is $112,700. This firm was selected over the 0th
two finalists in that they have a computer model which has been previous
developed and used widely in other public agencies. They possess pertinent analy
skills on their team and demonstrated an ability to address the numerous variabl
Carlsbad presents. The consultant will deliver the following products:
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Page Two of Agenda Bill No. /? ?A/
1. Report on Economic Analvsis Findinns - - This report will assess tl
economic absorption potential for various land use mixes as well i
the reasonableness of the mixes.
Level of Service and Cost and Revenue Factor Document - This rep0
will describe the information obtained from City departmen
addressing levels of service, cost and revenue input. This docume
is needed for present and future fiscal evaluations.
Fiscal ImDact Report - The results of service level, revenue and lai
use data will be described in this report. Fiscal impacts will '
reviewed on an annual as well as a cumulative basis.
2.
3.
4. Memo on Suggested Economic/Land Use Channes - Men
recommending changes in land use mixes to create more balanc
economic and fiscal results.
5. Memo on Revenue Evaluation and Recommendations - Mer
recommending how to improve revenues and reduce costs.
Fiscal Impact Model Outputs - Computer model and staff training
Staff, in conjunction with Tischler and Associates, Inc. discussed alternatives wlG
may be considered should the Council wish to reduce costs. The elimination
deliverables #4 and #5 above, a less detailed report in #1, and a reduction in t
number of meetings attended can result in a total cost of $80,000.
In addition to the direct costs noted above, a significant amount of staff time M
be required to coordinate efforts with the consultant throughout the repol:
compilation. More salient is the need to recognize that staff time will be need
in future years in order to maintain up-to-date data within the computer model
well as keeping current on evolving land use issues.
FISCAL IMPACT:
Funds are not currently available in operating funds. Funds can be transferred c
of the General Fund unappropriated fund balance to the Finance Departmt
Professional Services account. The cost of hiring a consultant to perform 1
analysis can run anywhere from $112,700 to $80,000 depending upon the ta:
selected for completion. Indirect costs include staff liaison to the consultant p
training of two staff members at a cost of approximately $6,000.
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Page Three of Agenda Bill No. /< 721
Annual fiscal commitments are also needed in order to keep the analysis static and
up to date. It is estimated that the maintenance of the data base will cost frorr
$6,000 to $7,000 annually in staff time. Additionally, the maintenance agreemen
for use of the software will begin at $8,800 with 5% increases annually after thc
first year. Each time an analytical report is needed from the model, staff time wil
cost approximately $2 50.
EIMIBlTS:
1. Resolution No. 78 - .5//& authorizing City staff to enter into an agreemen
with Tischler and Associates, Inc. to complete a fiscal impact analysis of th
City's General Plan.
Memo dated October 29, 1990 to the Finance Director from the Senic
Management Analyst - Finance providing details on tasks to be accomplishe
and a discussion on the pros and cons of deleting certain tasks.
Agreement between the City of Carlsbad and Tischler and Associates, Inc. 1
perform a fiscal impact analysis of the City of Carlsbad's General Plan.
Licensing agreement between Tischler tk Associates, Inc. and the City (
Carlsbad.
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RESOLUTION NO. 90-414
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CAEUSBAD, CALIFORNIA, APPOINTING TISCHLER AND
ASSOCIATES, INC. TO PERFORM A FISCAL IMPACT
ANALYSIS OF THE CITY OF CARLSBAD’S GENERAL PLAN
AND APPROPRIATING FUNDS
WHEREAS, the City of Carlsbad intends to complete a fiscal impact anal4
of the General Plan; and
WHEREAS, the City requires the services of a consultant to conduct
analysis and produce a computer model; and
WHEREAS, the City has selected Tischler and Associates, Inc. as consuli
in the above transaction because of their excellent staff and tested computer mo
NOW, THEREFORE BE IT RESOLVED by the City Council of the Ciq
Carlsbad, California as follows:
1.
2.
That the above recitations are true and correct.
That the City Council hereby authorizes the Mayor to execute a fi
impact analysis of the General Plan with Tischler and Associates, Inc.
I
attached contract which are incorporated herein by reference.
3. That the compensation for said services shall be as described in
4. That the amount of $112, 700 is hereby transferred from the Ger
Fund Unappropriated Fund balance to the Finance Department Professional Ser
account to support the costs of this study.
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5. That the City Council reserves the right to remove Tischler
Associates, Inc. from this project at any time.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Carl
City Council held on the 20th day of November , 1990.
AYES: Council Members Lewis, Larson, Mamaux and Pettine
NOES: None
ABSENT: Council Member Kulchin @X[L
UDE A. L S, Mayor
ATTEST:
ALETHA L. RAUTENKRANZ, City 7 C1 rk
lLAzZ-x'ifl&>L
(SEAL)
0 e
October 29, 1990
TO: FINANCE DIRECTOR
FROM: Senior Management Analyst
SCOPE OF THE TESCHLER PROPOSAL FOR THE FISCAL IMPACI' ANALYSIS OF TI
GENERAL PLAN
The purpose of this memo is to provide thorough detail of the deliverables which can
expected should the City select Tischler and Associates, Inc. to perform the Fiscal Imp;
Analysis of the General Plan. Also addressed are the impacts of performing an abbrevial
analysis in an effort to reduce the cost of the analysis. The deliverables, whether they
memos, reports or a computer model are underlined for identification purposes. 1
contents of the various reports will be detailed within the ensuing narrative.
DELIVERABLES
1. Economic Analysis - A reDort will summarize the findings within four arc
of economic analysis.
A. Historic development trends, and ongoing development in Carlsb
will be included. The report will also include the same trends
neighboring cities, including their development activities, and grow
managment measures.
The consultant will further forecast the population of Carlsbad,
well as for other North County cities. In conjunction with tj
population forecasts, employment opportunities will be projected f
the incremental resident populations. Ultimately, the project(
employment by sector for Carlsbad, will be shown in five ye
increments.
Based upon employment projections, the amount of acerage requir
for nonresidential purposes will be forecast. An esitmate of t:
annual absorption of land use by type will be provided. TI
projection will view Carlsbad absorption rates based upc
development constraints within neighboring cities.
The economic analysis will assess the reasonableness of the land u:
mixes within the General Plan, and alternatives will be presente
Also identified will be the most appropriate alternative(s) which ci
be evaluated from a fiscal perspective.
B.
C.
D.
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2. Fiscal Impact Analysis -
referred to as a cash flow.
A.
This portion of the entire analysis can also
Following the identification and selection land use alternatives whj
are selected, the level of service and cost and revenue informati
from city departments will be collected and assessed. The consults
will evaluate the level of service, and cost and revenue factors.
Next a level of service and cost and revenue document will be issu
which will describe the information obtained from the departmen
interviews. This will be a stand alone product, and can be useful f
the task at hand as well as effective budgeting.
The information from the previous tasks will be placed into t
FISCALS computer model, which will include: 1) land u
alternatives from the ecomonic analysis, 2) level of service, and cc
and revenue factors.
The results will be discussed in a fiscal impact report which w
describe the fiscal impacts on an annual as well as a cumulative bas
Following the assimilation of the initial fiscal report, the consulta
will recommend changes in land use mixes needed to create a mc
balanced ecomonic and fiscal result. This memo will view vario
periods of development from now through buildout.
A memo will be issued which will suggest improvements to revenu
and methods to reduce costs. Included is an analysis of the revenu
generated by various types of land uses.
B.
C.
D.
E.
F.
3. Design and Implementation of the Fiscal Impact Model - Concurrent with tl
above task of issuing a fiscal impact report, the computerized fiscal impa
model will be developed. Several key outputs generated by the computer a
outlined below. Upon delivery of the computer model, TA will provide o
site training to a core staff of up to five individuals.
A. Calculation of staff needs.
B. Calculation of available and excess capital facility capacitv.
C. Inclusion of ladlead time of construction for capital projects.
D. Debt finance by renular or revenue bonds.
E. Opportunity to reflect remaining useful life of capital facilities.
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F. Calculation of operatiw budnet summaw.
IMPACI'S OF COST SAVING ALTEWATIVES
Several options have been suggested as methods to reduce the scope of the fiscal imp:
analysis resulting in a reduced cost to the city. These will be discussed below.
Reduce the scope of the ecomonic analvsis portion of the study - Cost savings = $22,5(
The four components of ecomonic analysis referred to in section #1 above would
reduced to a memo prepared by a staff member of Tischler and Associates. Included WOI
be comments on population, housing, employment and nonresidential square foota
projections currently being utilized by the City as well as the implication of these tren
on Carlsbad's long term economic health. Ecomonk information would be derived frc
published information as well as visits with representatives of Carlsbad's developmc
sector.
The drawback to the abbreviated report is a lack of information on the developmc
activities of other North County Cities. It also would not inlcude an in depth analysis
the employment, housing, and non-residential absorption potential. The more throu
study will be completed by a professional economic consulting firm, Keyser, Marst
Associates, Inc., and include a breader view. Especially important is the impact otl
Cities' land uses have upon Carlsbad's ecomony.
Memo suEgestinz ecomonic/land use chanp;es - Cost savings = $1,700
The elimination of this report will not allow the City to view recommendations t
professional consultants recommendations regarding changes in land use mixes. T
purpose of this memo is to recommend more balanced economic and fiscal resr
throughout the city's growth. The availability of this information will allow for mt
accurate budgeting and planning throughout the years. It will also provide another me:
of evaluating the General Plan.
Memo recommendinp; how to improve revenues and reduce costs - Cost savings = $2,4
The exclusion of this element of the analysis will reduce the opportunity for the City
look at revenues generated by various types of land uses. Its exclusion will also fail to g
the City feedback into service level changes which can be made to reduce the demand
available resources. The City continually looks for methods to enhance revenues and th
sources. This analysis will identify such revenue sources. The memo will also anal;
service level changes which can be made to improve the city's financial outlook. T
evaulation will provide a complete picture as to revenue enhancement opportunities,
well as steps which can be made to modify service levels if and where appropriate.
Public meetings - Cost savings = $6,100
The orignial proposal includes the cost for six public meetings and three commur
meetings. The revised proposal would reduce the number of meetings attended to two, (
public meeting, and one community meeting. It is further stipulated that both meetii
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would be arranged within one trip on behalf of the consultant. The advantage of n
meetings attended by the consultant, is to reinforce the methods that were usec
implementing the variables within the model. More meetings required may increase
accountability of the consultant as well.
SUmmary
As can be seen, the analysis discussed is quite complex, and can be of benefit to the C
The benefits range from assessing the ecomonic feasibility of the General Plan upon
operations, to providing budget and service level guidelines.
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AGREEMENT
THIS AGREEMENT, made and entered into as of the 3n( day of -
+> 194bY and between the CITY OF CARLSBAD, a municipal
corporation, hereinafter referred to as "City", and Tischler and Associates, Inc.,
hereinafter referred to as "Consultant".
RECITALS
City requires the services of a consultant to provide a fiscal impact analysis
of the General Plan and a licensed copy of the FISCALS computer model; arid
Consultant possesses the necessary skills and qualifications to provide the services
required by the City;
NOW, THEREFORE, in consideration of these recitals and the mutual
covenants contained herein, City and Consultant agree as follows:
1. CONSULTANT'S OBLIGATIONS
A) Preparation of an economic analysis of the existing General Plan
including:
1) A review of the current economic position of the City,
including an analysis assessing economic absorption potential
through buildout.
Phased review of the economic position of the city at various
points during buildout.
2)
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3) An analysis of City's fiscal position at buildout of City's General
Plan land use.
Each analysis should consider both operating and capital costs
and revenues.
4)
B) Development of recommendations on changes in the land use mix to
create a more balanced economic result between now and buildout.
Application of the FISCALS computer model to be used to model the
fiscal impact of economic changes, service levels, capital facilities and
the land use plan. The model shall run on an IBM-AT or 386
compatible PC.
Preparation of an analysis of the revenues generated by various types
of land use and the costs of providing required city services at the
present, during development and at buildout.
C)
D)
E) In addition, Consultant shall:
1)
2)
Complete all work within eight months of award of contract.
Attend up to six public meetings with the City Council, and
provide presentations to community groups or committees as
required by the City.
Provide 30 copies of the final report, a reproducible copy of
the report, and two unprotected copies of the FISCALS
complete with operation manuals and operator training.
Consultant shall designate a project manager who shall be responsiblle
for completing all the obligations contained within this agreement.
Consultant shall provide services in accordance to the response to
3)
F)
2 Rev. 8/27/90
0 and shall not utilize new or 0 City's RFP attached as Exhibit
different staff without City's prior authorization.
Consultant shall provide training on the operation of the FISCALS
computer model generated as a result of this project, to up to two (2)
City staff members and shall provide documentation for all software
systems that meets with the approval of the Information Systems
Director, including user manuals and technical descriptions.
G)
2. CITY OBLIGATIONS
The City shall provide reasonable staff liaison in scheduling meetings with
departments.
3. PROGRESS AND COMPLETION
The work under this contract will begin immediately upon approval. All
reports shall be complete and ready for City Council review within eight months of
the beginning of this contract.
4. FEES TO BE PAID TO CONSULTANT
The City will pay consultant up to a maximum of 90% of the total mount
of the contract ($101,430) upon receipt of monthly invoices containing progress
reports from consultant. The amounts to be billed shall be on a percent of task
completed basis. The remaining 10% ($11,270) will be paid following City Council
acceptance of the entire project.
5. FINAL SUBMISSIONS
Within fifteen (15) days of completion and approval of the fiscal impact
analysis of the General Plan, Consultant shall deliver to the City the following items:
A) Thirty copies of the final report.
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B)
C)
One reproducible copy of the report.
Two unprotected copies of FISCALS, with operation manuals.
6. CHANGESINWORK
If, in the course of the contract, changes seem merited by the Consultant or
the City, and informal consultations with the other party indicate that a change in
the conditions of the contract are warranted, the Consultant or the City may request
a change in contract. Such changes shall be processed by the City in the following
manner: A letter outlining the required changes shall be forwarded to the City by
Consultant to inform them of the proposed changes along with a statement of
estimated changes in charges or time schedule. A supplemental agreement shall be
prepared by the City and approved by the City according to the procedures
described in Carlsbad Municipal Code Section 3.28.1 72. Such supplemental
agreement shall not render ineffective or invalidate unaffected portions of the
agreement.
7. COVENANTS AGAINST CONTINGENT FEES
The Consultant warrants that their firm 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 Consultant 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 making of this agreement. For breach or violation of
this warranty, the City shall have the right to annul this agreement without liability,
or, in its discretion, to deduct from the agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage
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0 0 fees, gift, or contingent fee.
8. NONDISCFUMINATION CLAUSE
The Consultant shall comply with the state and federal laws regarding
nondiscrimination.
9. TERMINATION OF CONTRACT
In the event of the Consultant's failure to prosecute, deliver, or perform the
work as provided for in this contract, the City may terminate this contract for
nonperformance by notifying the Consultant by certified mail of the termination of
the Consultant. The Consultant, thereupon, has five (5) working days to deliver
said documents owned by the City and all work in progress to the City Finance
Director. The City Finance Director shall make a determination of fact based upon
the documents delivered to City of the percentage of work which the Consultant has
performed which is usable and of worth to the City in having the contract
completed. Based upon that finding as reported to the City Manager, the Manager
shall determine the final payment of the contract.
10. DISPUTES
If a dispute should arise regarding the performance of work under this
agreement, the following procedure shall be used to resolve any question of fact or
interpretation not otherwise settled by agreement between parties. Such questions,
if they become identified as a part of a dispute among persons operating under the
provisions of this contract, shall be reduced to writing by the principal of the
Consultant or the City Finance Director. A copy of such document of dispute shall
be forwarded to both parties involved along with recommended methods of
resolution which would be of benefit to both parties. The City Finance Director or
5 Rev. 8/27/90
e 0 principal receiving the letter shall reply to the letter along with a recommended
method of resolution within ten (10) days. If the resolution thus obtained is
unsatisfactory to the aggrieved party, a letter outlining the dispute shall be
forwarded to the City Council for their resolution through the Office of the City
Manager. The City Council may then opt to consider the directed solution to the
problem. In such cases, the action of the City Council shall be binding upon the
parties involved, although nothing in this procedure shall prohibit the parties
seeking remedies available to them at law.
11. RESPONSIBILITY OF THE CONSULTANT
The Consultant is hired to render professional services and any payments
made to Consultant are compensation solely for such services. Consultants shall
certify as to the reasonability of all fiscal impact history and projections.
12. SUSPENSION OR TERMINATION OF SERVICES
This agreement may be terminated by either party upon tendering thirty (30)
days written notice to the other party. In the event of such suspension or
termination, upon request of the City, the Consultant shall assemble the work
product and put same in order for proper filing and closing and deliver said product
to City. In the event of termination, the Consultant shall be paid for work
performed to the termination date; however, the total shall not exceed the lump
sum fee payable under paragraph 4. The City shall make the final determination
as to the portions of tasks completed and the compensation to be made.
13. STATUS OF THE CONSULTANT
The Consultant shall perform the services provided for herein in Consultant’s
own way as an independent contractor and in pursuit of Consultant’s independent
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calling, and not as an employee of the City. Consultant shall be under control of
the City only as to the result to be accomplished, but shall consult with the City as
provided for in the request for proposal.
The Consultant is an independent contractor of the City. The payment made
to the Consultant pursuant to the contract shall be the full and complete
compensation to which the Consultant is entitled. The City shall not make any
federal or state tax withholdings on behalf of the Consultant. The City shall not be
required to pay any workers’ compensation insurance on behalf of the Consultant.
The Consultant agrees to indemnify the City for any tax, retirement contribution,
social security, overtime payment, or workers’ compensation payment which the City
may be required to make on behalf of the Consultant or any employee of the
Consultant for work done under this agreement.
The Consultant shall be aware of the requirements of the Immigration Reform
and Control Act of 1986 and shall comply with those requirements, including, but
not limited to, verifying the eligibility for employment of all agents, employees,
subcontractors and consultants that are included in this agreement.
14. REPRODUCITON RIGHTS
The Consultant agrees that all copyrights which arise from creation of the
work pursuant to this contract shall be vested in City and hereby agrees to
relinquish all claims to such copyrights in favor of City.
15. HOLD HARMLESS AGREEMENT
The City, its officers, and employees shall not be liable for any claims,
liabilities, penalties, fines, or any damage to goods, properties, or effects of any
person whatever, not for personal injuries or death caused by, or claimed to have
7 Rev. 8/27/90
e 0 been caused by, or resulting from, any intentional or negligent acts, errors or
omission of Consultant or Consultant's agents, employees, or representatives.
Consultant agrees to defend, inded, and save free and harmless the City and its
officers and employees against any of the foregoing liabilities or claims of any kind
and any cost and expense that is incurred by the City on account of any of the
foregoing liabilities, including liabilities or claims by reason of alleged defects in any
plans and specifications.
16. ASSIGNMENT OF CONTRACX
The Consultant shall not assign this contract or any part thereof or any
monies due thereunder without the prior written consent of the City.
17. PROHIBITED INTEREST
No official of the City who is authorized in such capacity on behalf of the
City to negotiate, make, accept, or approve, or take part in negotiating, making,
accepting, or approving of this agreement, shall become directly or indirectly
interested personally in this contract or in any part thereof. No officer or employee
of the City who is authorized in such capacity and on behalf of the City to exercise
any executive, supervisory, or similar functions in connection with the performance
of this contract shall become directly or indirectly interested personally in this
contract or any part thereof.
18. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent, or employee of
the City, either before, during or after the execution of this contract, shall affect or
modify any of the terms or obligations herein contained nor entitle the Consultant
to any additional payment whatsoever under the terms of this contract.
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0 0 19. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all
terms, conditions, and provisions hereof shall insure to and shall bind each of the
parties hereto, and each of their respective heirs, executors, administrators,
successors, and assigns.
20. EFFECTIWDATE
This agreement shall be effective on and from the day and year first above
written.
21. CONFLUX OF INTEREST
The Consultant shall file a Conflict of Interest Statement with the City Clerk
in accordance with the requirements of the City of Carlsbad Conflict of Interest
Code. The Consultant shall report investments or interests in real property.
22. SUBCONTRACXNG
If the Consultant shall subcontract any of the work to be performed under
this contract by the Consultant, Consultant shall be fully responsible to the City for
the acts and omissions of Consultant's subcontractor and of the persons either
directly or indirectly employed by the subcontractor, as Consultant is for the acts
and omissions of persons directly employed by consultant. Nothing contained in
this contract shall create any contractual relationship between any subcontractor of
Consultant and the City. The Consultant shall bind every subcontractor and every
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subcontractor of a subcontractor by the terms of this contract applicable to
Consultant’s work unless specifically noted to the contrary in the subcontract in
question approved in writing by the City.
Executed by Consultant this day of 7
19-.
CONSULTANT: CITY OF CARLSBAD, a municipal
corporation of the State of California
(name of Consultant)
By: City Manager or Mayor
By:
(sign here)
ATTEST:
(print name here)
ALETHA L. RAUTENKRANZ
City Clerk (title and organization of signatory)
(Proper notarial acknowledgment of execution by CONSULTANT must be attached.)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering
that officer to bind the corporation.)
APPROVED AS TO FORM:
VINCENT F. BIONDO, JR.
City Attorney
BY Deputy City Attorney
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e a
Licensing Agreement
Between Tischler & Associates, Inc.
and The City of Carlsbad
AGREEMENT made as of November , 1990 by and between TISCHLER & AS.
ATES, INC. a corporation organized and existing under the laws of the District of Coli
the principal office of which is located at 4701 Sangamore Road, Suite N210, Bet
Maryland 20816 (hereinafter referred to as TA), and The City of Carlsbad the mailing a(
of which is 1200 Elm Ave., Carlsbad, CA 92008, (hereinafter referred to as Customer).
RECITALS
A. TA is owner of the copyrighted computer program known as the Fiscal Analysis S (hereinafter referred to as FISCALS).
TA is authorized to sublicense FISCALS for the use of the Customer,
Customer is interested in becoming a sublicensee for FISCALS, subject to the tern
conditions set forth in this Agreement.
B.
C.
NOW, THEREFORE, in consideration of the mutual undertakings set forth below, the I
agree as follows:
1. Subject to the condition precedent set forth in Paragraph 3 below, TA shall
Customer a non-exclusive and non-transferable perpetual license to use the copyri
computer program known as FISCALS at the City of Carlsbad offices located at
Elm Ave., Carlsbad, CA 92008. In conjunction with this license, TA shall provi
Customer the following:
a.
b.
TA shall expeditiously correct errors or malfunctions in the FISCALS program or
manuals which are brought to its attention in writing by Customer. Written notiific
by Customer shall specify the manner in which the FISCALS program does not pel
in accordance with the users manuals. In the event that, after investigation,
determined by TA that the reported error or malfunction was not caused by a defe
the FISCALS program or users manuals, TA shall charge Customer at TA’s regular
rate for time spent by it in investigating the alleged error or malfunction.
Customer shall pay TA the sum of Forty-Nine Thousand Nine Hundred ($49,900) Do
The amount paid in accordance with this Paragraph shall constitute the consideratic
the license granted by TA and the services to be performed under a separate agree
One copy of the current FISCALS computer program;
Five (5) copies of the current FISCALS users manuals.
2.
,/
3.
e *
dated ,November , 1990. The amount due TA shpll be paid upon receipt of invoj
and according to the Task completed per the acceptance agreement. In the event tl
Customer desires professional services related to FISCALS, other chan those set forth
the above referenced agreement, TA shall provide the additional requested services up
request and for additional consideration to be negotiated between parties.
TA shall deliver FISCALS to Customer and/or initiate the related services within fifte
days following TA’s receipt of the written notification. At the time FISCALS is delivei
to Customer, Customer shall provide appropriate qualified staff on a timely basis to ins1
the computer program on Customer’s computer.
All marketing and distribution rights in FISCALS are reserved by TA. TA authori:
Customer to use FISCALS for its own normal municipal activities and to make no ml
than one copy of the FISCALS (unless otherwise agreed to in writing) for its own use I
not for distribution to or use by others, provided that any such copy shall retain the sa
notice concerning the copyright by Tischler & Associates, Inc. with full rights
distribution held by TA. All copies of the computer program product are to remain
the computer designated by Customer. Customer agrees not to provide or otherv
make available FISCALS in any form to any person other than personnel of Custor
Customer shall be exclusively responsible for the supervision, management and con
of the use of FISCALS delivered pursuant to this Agreement. Customer also agrees
it will take appropriate action, by instruction,agreement, or otherwise, with its employ
to satisfy its obligation under this Agreement with respect to use, copy modificat
protection and security of FISCALS. Customer also agrees that only its employees
specifically authorized to use FISCALS.
TA warrants that the FISCALS program and users manuals were conceived and develc
by TA and that the FISCALS program and users manuals do not infringe any copyi
trade secret or trademark. TA also make the following representations and warrar
concerning the capabilities and performance of FISCALS:
a.
4.
5.
6.
The program can provide a methodology which helps structure data-gatherhi
fiscal analysis.
The program can accommodate both base year and projected values for va
factors for specific time increments.
The program can project facility and service needs based on socioeconomic
demographic forecasts, and public service levels and cost and revenue factors
project the fiscal impact of proposed facilities and services.
The program has the capability to assess the impacts of proposed or proj
revenues and expenditures, as well as the capability to forecast future tax rate
related net fiscal impacts.
b.
c.
d.
0 0
e. The program has the ability to calculate all major expected costs, revenue
impacts on assessed valuations, tax rates and bonding capacity.
TA makes no other representations or warranties concerning the performa
FISCALS. The foregoing warranties are in lieu of all other warranties, exp
or implied, including, but not limited to, those concerning merchantabilir
fitness for a particular purpose. TA’s liability, in contract, in tort, undc
warranty or otherwise, with respect to this Agreement or anything dc
connection with the performance thereof, or the breach thereof, or with res1
the technical direction or use of any product or equipment associated
providing t he services hereunder, shall be limited to the aggregate the an
paid by Customer to TA. TA’s liability under this Agreement shall be lim
correction of defects in the FISCALS program and users manual, TA sh;
be liable to Customer or anyone claiming through Customer in contract or
(including negligence), for special, indirect, incidental, or consequential dm
7. TA shall not be liable for any loss, damage, detention, or delay resulting from (
beyond it reasonable control, or from fire, strike, or other concerted action of wor
act or omission of any government authority or of the Customer, insurrection o
embargo, car shortage, wreck, or delay in transportation, or inability to obtain nect
labor, materials, or equipment fiom usual sources. In the event of delay in perforr
due to any such cause, the date of such performance shall be postponed by such 1
of time as may be reasonably necessary to compensate for the delay.
Customer shall not, without the prior written consent TA, assign or transfe
Agreement or permit the use of the FISCALS program or any materials furnished
this Agreement by any persons other than those in Customer’s direct employmer
subject to its direct supervision.
Customer acknowledges that the source and object code for the FISCALS progran
proprietary rights to any materials supplied to Customer by TA pursuant to
Agreement are, and at all times shall remain, the property of TA, and Customer shall
no right, title or interest therein, except as expressly set forth in this Agreement.
Customer agrees that any modification to the FISCALS program developed by Cusl
with any advice or support by TA, or by TA for Customer, whether or not reimburst
Customer and whether or not developed in conjunction with Customer’s employe
agents, shall be exclusive property of TA. Customer further agrees that modified ver
of the FISCALS program do not constitute a program different form the FISC
program and, as such, fall under the terms and conditions of this Agreement.
This Agreement shall be governed by and construed under the laws of the Sta
California.
8.
9.
10.
11.
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12. This is the entire Agreement between the parties with respect to the subject matter e
for the contract entered in between TA and Customer on . There are not
understandings, agreements, representations, or warranties, expressed or im
respecting this Agreement and the services provided hereunder. This Agreement n-
modified only by written amendment, signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the data first w
above.
ATTEST: TISCHLER & ASSOCIATES,
By: m Paul S. Tischler
ATTEST:
CLAUDE -4- A. LEWI Mayor
By:
Witness