HomeMy WebLinkAboutC27150 - Agmt - Terra Nova Planning & Reserch Inc. Contract No. C27150
AGREEMENT FOR PROFESSIONAL SERVICES
This AGREEMENT is made and entered into this day of
, 200 , ("Effective Date") by and between the CITY OF PALM DESERT ("City")
and , a California Corporation ("ConsultanY') (sometimes
referred to individualiy or collectively as "Party" or "Parties").
WITNESSETH
WHEREAS, City desires to retain Consultant as an independent contractor to perform
certain technical and professional consulting services in connection with the HOUSING
ELEMENT UPDATE OF 2008 (GPA 07-01) project, subject to the terms and conditions
specified be{ow, in the documents attached and incorporated herein, and applicable
federal, state and local law.
NOW, THEREFORE, in consideration of performance by the Parties of the
mutual promises, covenants, and conditions herein contained, the Parties hereto agree
as follows:
1. Consultant's Services.
1.1 Nature of Services. Consultant shall provide professional and technical
services on a non-exclusive basis, as more particularly described in Section 3, below,
and in Exhibit A, Scope of Services.
1.2 Personnel. Consultant represents that it has, or will secure at its own
expense, all personnel required to perform the services under this Agreement. All of the
services required under this Agreement will be performed by Consuftant or under its
direct supervision, and all personnel engaged in the work shall be qualified, and shall be
authorized or permitted under state and local law to perform such services.
1.3 Standard of Performance. Consultant shall perform all services under this
Agreement in accordance with the standard of care generally exercised by like
professionals under similar circumstances and in a manner reasonably satisfactory to
City.
1.4 Consultant Reqresentative. For the purposes of this Agreement, the
registered architect, engineer, or landscape architect who will serve as the Consultant
Representative shall be TERRA NOVA PLANNING AND RESEARCH. INC.
("Consultant Representative").
1.5 Time of Commencement. The execution of this Agreement by the Parties
does not constitute an authorization to proceed. A separate written Notice to Proceed
shall be issued by the City Representative, and Consultant shall not commence work
until receipt of such written Notice(s) to Proceed, as further set forth in Sections 2 and 3,
below.
Professional Services Agreement—City—V.1
Contract No. C27150
1.6 Time of Performance/Time is of the Essence. Consultant shall commence
the services contemplated under this Agreement immediately upon receipt of a written
Notice to Proceed from the City, and shall prosecute to completion each task listed in
Section 3 in a timely and diligent manner within 210 calendar days of receipt of a
Notice to Proceed, or in accordance with the schedule appended to this agreement as
Exhibit B.
Services by City:
2.1 Citv Representative. For the purposes of this Agreement, the City
Representative shall be RYAN STENDELL, ASSOCIATE PLANNER or such other
person designated by the City's Executive Director ("City Representative").
2.2 Provision of Data. All information, data, reports and records and maps as
are existing and available from the City and necessary for the carryings out of the work
outlined in Exhibit "A" hereof shall be furnished to Consultant without charge by City,
and City shall cooperate in every way reasonable in the carrying out of the work without
delay.
3. Consultant's Scope of Work. Upon delivery by City to Consultant of a
written Notice to Proceed, Consultant shall immediately commence work pursuant to
this Agreement. Consultant's scope of work shall consist of the services in Exhibit A
appended to this Agreement.
3.1 Reportinq& Record Keepinq. To assist Ciry in the performance of its
planning, reporting, and financial administration obligations, Consultant shall,
throughout the term of this Agreement, keep City reasonably informed of progress on
work required under this Agreement, and of any problems or delays, anticipated or
otherwise, associated with each aspect of the work. Consultant shall promptly respond
to any request by City for information, progress reports, or documentation. Consultant
shall maintain accurate records of all work performed for each Assignment under this
Agreement, including but not limited to originals or copies, as applicable, of all
deliverable documents described in Exhibit A. Upon the completion of work, and if
requested by the City, Consultant shall deliver to City the originals of all renderings,
models, or documentation produced, and may retain copies of such documentation, at
Consultant's election.
3. 2 Comqliance with Laws. Consultant shall at all times possess any and all
licenses and permits necessary to provide the services herein, and shall comply with
applicable federal, state and local laws, ordinances, codes and regulations in the
performance of this Agreement, and with all applicable with any applicable City of Palm
Desert policies and guidelines.
3.3 Confidentialitv. Except as otherwise permitted or required by law,
Consultant shall maintain as confidential and shall not disclose any and/or all
information received in the course of performing pursuant to this Agreement.
Consultant shall promptly inform the City in the event Consultant receives a subpoena
or court order requiring disclosure of confidential information.
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4. Compensation. City shali pay Consultant for the Services provided
under this Agreement on the following basis.
4.1 Not-to-Exceed Fee: City shall pay to Consultant a total amount not to
exceed $ 45.520.00 for the basic services described in Exhibit A. Payment shall be
made on a monthly basis, based upon the hourfy rates defined in Exhibit C, multiplied
by the number of hours worked by each classification of personnel assigned to the
project during the previous calendar month. The not-to-exceed fee shall not be
exceeded without written agreement between the parties.
5.2 Additional Services: Additional services beyond those described in Exhibit
A shall be reimbursed on a time-spent basis at the hourly rates described in Exhibit C.
City shall not be obligated to compensate Consultant for additional services performed
without advance authorization from the City Representative.
5.3 Reimbursable Expenses: City shall pay to Consultant actual costs plus ten
percent (10°l0), subject to the limitation given below, for expenses incurred on behalf of
the project for long distance telephone calls, reproduction, express delivery and courier
services, postage, out-of-town travel if pre-approved in writing by the City
Representative, and other expenses directly attributable to the project and expressly
approved by the City Representative. Reimbursable expenses, including Consultant's
mark-up, shall not exceed 5 900 for this project.
5.4 Extraordinary Expenses/Costs. No claims for additional services,
expenses or costs incurred by Consultant will be allowed unless such additional
services, expenses or costs are authorized by City in writing prior to the performance or
incurrence of such services, expenses or costs. Any additional services, expenses or
costs authorized by City shall be compensated at rates mutually agreed upon by the
Parties in writing.
6. Method of Payment.
6.1 Invoices. Consultant shall submit to Ciry invoices each month for all
services, if any, completed, and all expenses or costs incurred pursuant to this
Agreement during the preceding month. The invoices shall describe the services
rendered during the period and shall show the number of hours worked, the hourly rates
charged, and any milestone achievements. Copies of receipts for expenses or costs
shall be submitted with each invoice. City shall review such invoices and notify
Consultant in writing within fifteen (15) calendar days of any disputed amounts.
6.2 Pavment. City shall pay all undisputed portions of the invoice within thirty
(30) calendar days after receipt of the invoice up to the maximum amounts set forth in
Section 5.
6.3 Audit of Records. At any time during regular working hours, all records,
invoices, time cards, cost control sheets and other records maintained by Consultant
shail be available for review and audit by the City.
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Contract No. C27150
7. Ownership of Work Product.
7.1 Proqertv of Citv. All documents including but not limited to plans, bids,
proposals, correspondence, permits, certificates, contracts, change orders, invoices,
receipts, reports, analyses or other written material developed or obtained by
Consultant in the performance of this Agreement, including any and all intellectual
property rights arising therefrom ("Work Product"), shall be and remain the property of
City without restriction or limitation upon its use or dissemination by City. Promptly
upon the completion of each Assignment, or at any other time upon reasonable notice
to Consultant by City, Consultant shall deliver all Work Product to City.
8. Conflict of InteresUProhibited Conduct and Interests
8.1 Conflict of Interest. Consultant and its officers, employees, associates and
sub consultants, if any, will comply with all conflict of interest statutes of the State of
California applicable to Consultant's services under this Agreement, including, but not
limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and
Government Code Section 1090. During the term of this Agreement, Consultant shall
retain the right to perform similar services for other clients, but Consultant and its
officers, employees, associates and sub consultants shall not, without the prior written
approval of the City Manager, perform work for another person or entity for whom
Consultant is not currently performing work that would require Consultant or one of its
officers, employees, associates or sub consultants to abstain from a decision under this
Agreement pursuant to a conflict of interest statute.
8.2 No Solicitation. Consultant, on behalf of itself and its officers,
employees, agents and representatives, warrants that it has not employed or retained
any company or person, other than a bona fide employee working solely for Consultant,
to solicit or secure this Agreement, and that it has not paid or agreed to pay any
company or person, other than a bona fide employee working solely for Consultant, any
fee, commission, percentage, brokerage fee, gifts, or any other consideration,
contingent upon or resulting from the award or making of this Agreement. For breach ar
violation of this warranty, City shall have the right to terminate this Agreement without
notice or liability, or in its discretion to deduct from the contract price or consideration, or
otherwise recover, the fu11 amount of such fee, commission, percentage, brokerage fee,
gift or contingent fee.
8.3 No Financial Interest - Citv. No officer, member or employee of
City during his or her tenure or one year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof. The Parties hereto covenant and
agree that to their knowledge no member of the City Council, or officer or employee of
City, has any interest, whether contractual, non-contractual, financial or otherwise, in
this Agreement, or the subject matter thereof, nor any business or financial relationship
with Consultant, and that if any such interest comes to the knowledge of either Party at
any time a full ar�d complete disclosure of all such information will be made in writing to
the other Party or Parties, even if such interest would not be considered a conflict of
interest under applicable laws.
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Contract No. C27150
8.4 No Financial Interest — Consultant. Consultant hereby covenants, on
behalf of itself, and its officers, employees, agents and representatives, that at the time
of executing this Agreement it has no interest, and that it shall not acquire any interest
in the future, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed pursuant to this Agreement.
Consultant further covenants that in the performance of this Agreement, no person
having any such interest shall be employed by Consultant. At no time during the term of
this Agreement, and for one (1) year thereafter, shall Consultant or anyone acting on
Consultant's behalf, accept anything of value from any contractor or subcontractor
performing services in connection with the HIP.
9. Indemnification. Consultant sha11 indemnify, protect, defend and hold
harmless the Agency and the City of Palm Desert, their officials, employees, agents and
representatives from and against any and all losses, liabilities, damages, costs, and
expenses, including attorney's fees and costs to the extent same are caused in whole or
in part by any negligent or wrongful act, error, or omission of the Consultant, its officers,
agents, employees or subConsultants (or any entity or individual that the Consultant
shall bear the legal liability thereof) in the performance of professional services under
this agreement.
10. Insurance. Consultant will maintain insurance in conformance with the
requirements set forth below. If Consultant's existing coverage does not meet the
requirements set forth here, it will be amended to do so. Consultant acknowledges that
the insurance coverage and policy limits set forth in this section constitute the minimum
amount of coverage required. Any insurance proceeds available to City in excess of the
limits and coverage required in this agreement and which is applicable to a given loss,
will be available to City.
10.1 Workers' compensation and em�loyer's liabilitv. Consultant shall provide
Workers Compensation and Employer's Liability Insurance on an approved policy form
providing benefits as required by law with employer's liability limits no less that
$1,000,000 per accident or disease.
10.2 Professional Liability or Errors and Omissions. Professional Liability or
Errors and Omissions insurance as appropriate shall be written on a policy form
coverage specifically designed to protect against acts, errors or omissions of the
Consultant and "Covered Professional Services" as designated in the policy must
specifically include work performed under this agreement. The policy limit shall be no
less than $1,000,000 per claim and in the aggregate. The policy must "pay on beha4f
of" the insured and must contain a provision establishing the insurer's duty to defend.
The policy retroactive date must be on or before the effective date of this agreement.
10.3 Automobile liabilitv. Consultant shall provide auto liability coverage with a
limit of no less than $1,000,000 per accident. If Consultant owns no vehicles, this
requirement may be met through a non-owned auto endorsement to the CGL policy.
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Contract No. C27150
10.4 Waiver. If the Consultant does not carry Worker's compensation
coverage, or if the Consultant will not operate any vehicles at any time within the scope
of the services in the agreement, provisions for these coverages may be waived upon
review and approval of the City's Risk Manager.
11. Status as Independent Contractor. Consultant is, and shall at all times
remain as to City, a wholly independent contractor. Consultant shall have no power to
incur any debt, obligation, or liability on behalf of City. Neither City nor any of its
officials, employees or agents shall have control over the conduct of Consultant or any
of ConsultanYs employees, except as set forth in this Agreement.
12. Non-Assignability; Subcontracting. Consultant shall not assign or
subcontract all or any portion of this Agreement without the City's prior, written consent.
Any attempted or purported assignment or sub-contracting by Consultant shall be null,
void and of no effect.
13. Non-Discrimination and Equal Employment Opportunity. In the
performance of this Agreement, Consultant shall not discriminate against any employee,
subcontractor, or applicant for employment because of race, color, creed, religion, sex,
marital status, national origin, ancestry, age, physical or mental disability, medical
condition, or sexual orientation. Consultant will take affirmative action to ensure that
subcontractors and applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, religion, sex, marital status,
national origin, ancestry, age, physical or mental disability, medical condition, or sexual
orientation. This clause shall be included in any contract prepared or approved by
Consultant in connection with performance of its services under this Agreement.
14. Cooperation. In the event any claim or action is brought against
Redevelopment Agency or City relating to Consultant's performance or services
rendered under this Agreement, Consultant shall render any reasonable assistance and
cooperation, which Agency or City might require.
15. Termination. The right is reserved by the City to terminate the
Agreement at any time upon seven (7) days written notice, in the event the project is to
be abandoned or indefinitely postponed, or in the event the Consultant's services, in the
sole judgment of City, are unsatisfactory or because of the Consultant's failure to
prosecute the work with diligence or within the time limits specified or because of his
disability or death. In any such case, the Consultant shall be paid the reasonable value
of the services rendered, based upon Consultant's standard hourly rates, up to the time
of the termination. The Consultant shall keep adequate records to substantiate costs
and provide copies of original time-cards in the event of termination or suspension.
16. Notices. Any notices, bills, invoices, or reports required by this
Agreement shall be given by first class U.S. mail or by personal service. Notices shall
be deemed received on (a) the day of delivery if delivered by hand or overnight courier
service during Consultant's and City's regular business hours or by facsimile before or
during ConsultanYs regular business hours; or (b) on the third business day following
deposit in the United States mail, postage prepaid, to the addresses heretofore set forth
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Contract No. C27150
in the Agreement, or to such other addresses as the Parties may, from time to time,
designate in writing pursuant to the provisions of this section. All notices shall be
delivered to the Parties at the following addresses:
City: Carlos L. Ortega, City Manager
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
Tel: (760) 346-0611
Fax: (760) 341-6372
With a copy to: Ryan Stendell, Associate Planner
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260-2578
Tel: (760) 346-0611
Fax: (760) 341-6372
Consultant: Terra Nova Planning and Research, Inc.
400 South Farrell, Suite B-205
Palm Springs, CA 92262
Tel: (760) 320-9040
Fax: (760} 322-2760
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Contract No. C27150
17. Non-Waiver of Terms, Rights and Remedies. Waiver by either Party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall
the making by City of any payment to Consultant constitute or be construed as a waiver
by City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
18. Attorney's Fees. In the event that either Party to this Agreement shall
commence any legal action or proceeding for damages for breach, or to enforce or
interpret the provisions of this Agreement, the prevailing party in such action or
proceeding shall be entitled to recover its costs of suit, including reasonable attorney's
fees and experts' costs.
19. Exhibits; Precedence. All documents referenced as exhibits in this
Agreement are hereby incorporated in this Agreement. In the event of any material
discrepancy between the express provisions of this Agreement and the provisions of
any document incorporated herein by reference, the provisions of this Agreement shall
prevail.
20. Entire Agreement. This Agreement, and any other documents
incorporated herein by specific reference, represents the entire and integrated
agreement between Consultant and City. This Agreement supersedes all prior oral or
written negotiations, representations or agreements. No promise or representation,
whether oral or written, express or implied, that is not set forth herein, shall be binding
or have any force or effect. This Agreement may not be amended, nor any provision
waived, except in a writing signed by the Parties which expressly refers to this
Agreement.
21. Partial Invalidity. In case any provision of this Agreement should be
deemed by a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions shall not be
affected or impaired thereby.
22. Successors. This Agreement shall bind and inure to the benefit of the
respective heirs, personal representatives, successors and assigns of the parties to this
Agreement.
23. Walvers. No waiver of any breach or default of any term or provision of
this Agreement shall be deemed a waiver of any other term or provision of this
Agreement, and no waiver shall be valid unless in writing and executed by the waiving
party.
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Contract No. C27150
24. Construction. Section headings in this Agreement are solely for the
convenience of the parties and are not a part of and shall not be used to interpret this
Agreement. This Agreement shall not be construed as if it had been prepared by one of
the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all
references to Sections ace to this Agreement. All exhibits to this Agreement are hereby
incorporated by reference.
IN WITNESS WHEREOF, said parties have executed this Agreement effective
as of the Effective Date above.
CONSULTANT
By:
Its:
CONSULTANT
By:
Its:
CITY OF PALM DESERT
Mayor
ATTEST:
Rachelle D. Klassen, City Clerk
APPROVED AS TO FORM
Dave Erwin, City Attorney
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Contract No. C27150
EXHIBIT A
SCOPE OF PRFESSIONAL SERVICES
SCOPE OF SERVICES
Consuitant shall provide the following services under the terms of the Agreement:
1. Establish regular meeting schedufe for City staff/Terra Nova team meetings, status
meetings and public workshops.
2. With City staff assistance, develop a stakeholder's list of agencies, persons and
organizations with an interest in affordable housing issues. Develop materials
publicizing two public workshops for purposes of gathering data and input on the
amendment of the Element, and community wishes for policy direction. These may
be organized as free-standing workshops, or Housing Subcommittee meetings,
depending on the City's preference.
3. Contact rental and sales agencies, develop data base of rental rates for apartments,
and sales prices for homes and mobile homes within the City. Gather third party data
on housing prices and sales rates, including sources such as the Inland Empire
Quarterly Economic Report, County and state data, and other sources. Incorporate
findings in discussion of market housing in the Element text.
4. The data available in the existing element regarding the condition of housing stock
will be supplemented with Code Enforcement data, Building Permit information and
Redevelopment Agency records to result in a current survey of the condition of the
housing stock. No independent City-wide site surveying is expected to be generated.
5. Progress made toward meeting the goals and policies of the existing element will be
quantified, and provided in a "review and revise section" at the beginning of the
Element. Potential preservation methods avaifable to insure the long term viability of
at-risk units will be presented.
6. Governmental and environmental constraints will be updated, using data coHected
from City departments. This will include fee schedule analysis, including engineering,
planning and building permit fee analysis. Any development impact fees imposed by
the City will also be incorporated into the analysis.
7. Develop cost of construction data to support analysis of the cost of housing
construction in the Ciry. This analysis will be included in the constraints analysis of
the Element.
8. Review rehabilitation programs to ensure that they meet State standards, and
incorporate same into draft document. Update regional, state and federal programs
available to encourage affordable housing construction.
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Contract No. C27150
9. Incorporate land use designation and acreage from General Plan Land Use Map,
with amendments generated through review of approved and constructed projects
since adoption of the General Plan. The analysis will lead to a section which
identifies adequate available lands to meet the RHNA allocation. Working with City
staff, identify specific parcels available for affordable housing projects, and
determine whether their zoning is appropriate for the use.
10. Incorporate Southern California Association of Governments RHNA allocation for the
City into Element te�, and modify needs analysis for future housing based on the
allocation. Coordinate RHNA allocation with City and estabiish strategies to help
achieve allocation goals.
11. Update goafs, policies and programs to reflect current needs and address RHNA
allocation. Recommend new programs as needed to incorporate new conditions
raised by needs assessment.
12. Prepare screencheck draft Element for staff review and approval. Goals, policies and
programs will be updated to reflect current direction in the City, updated statistical
data and public input at the workshops. Amend draft Housing Element as required,
and submit to HCD for review.
13. Conduct third community workshop, presenting the draft Element to the communiry,
and reviewing the highlights of the policy direction with the public. This may be held
as a joint Planning Commission/City Council meeting, in order to familiarize these
two bodies in the document and its process.
14. Track HCD review process, and facilitate provision of any additional information or
explanation of inethodology, as required. The goal is to receive conditional approval
of the Element by HCD prior to its submittal to the Planning Commission and City
Council for their actions.
15. Make changes required by HCD, after review and approval by City staff. We would
assume two revisions to accommodate HCD comments.
16. Prepare CEQA Initial Study Checklist (IS�, Negative Declaration and public notice
documentation. Provide to Ciry for posting and advertising in Desert Sun. Coordinate
with City planning staff to ensure consistency and conformance with City Rules to
Implement CEQA.
17. Prepare, in cooperation with City staff, Planning Commission and City Council staff
reports, in a format acceptable to the City. Working with Ciry staff, make presentation
and answer questions at one Planning Commission and one City Council hearing.
Prepare any amendments made by City Council action, and submit to HCD for
certification.
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Contract No. C27150
EXHIBIT B
SCHEDULE
NOTICE TO PROCEED DAY 0 NOVEMBER 15, 2007
PRELIMINARY DATA/ KICKOFF MEETING 5 DAYS FROM NTP
PUBLIC OUTREACH MEETING 30 DAYS FROM NTP
DRAFT ELEMENT FOR STAFF REVIEW 120 DAYS FROM NTP
FINAL PUBLIC OUTREACH MEETING 130 DAYS FROM NTP
SUBMIT ELEMENT TO HCD MARCH 31, 2008
RESPOND TO HCD COMMENTS 90 DAYS FROM HCD
SUBMITTAL
RESPOND TO HCD COMMENTS 90 DAYS FROM HCD RE-
SUBMITTAL
PLANNING COMMISSION i CITY COUNCIL 45 DAYS FROM 2 REVISION
HEARINGS FROM HCD
SUBMIT FINAL DOCUMENT TO HCD FOR BY JUNE 30, 2008 �OR LATER
CERTIFICATION DEPENDING ON HCD REVIEW
PROCESS)
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Contract No. C27150
EXHIBIT C
City of Palm Desert Housing Element Update Project Budget
Terra Nova Staff Time Amount
Client Staff Meetings (24 hrs @ $155/Hr.) $ 3,720.00
(24 hrs @ $110/Hr.) $ 2,640.00
Preparation for and Attendance at Three Public Workshops
(14 hrs @ $155/Hr.) $ 2,170.00
(22 hrs @ $110/Hr.) $ 2,420.00
Research and Documentation, Statistical and Market Housing Analysis
(42 hrs @ $155/Hr.) $ 6,510.00
(72 hrs @ $1 lO1Hr.) $7,920.00
Housing Element Drafting
(24 hrs @ $155/Hr.) $ 3,720.00
(56 hrs @ $110/Hr.) $ 6,160.00
CEQA Initial Study, Neg. Dec., public notices, etc.
(8 hrs @ $155/Hr.) $ 1,240.00
(20 hrs @ $110/Hr.) $ 2,200.00
HCD Submittal and Changes/Additions
(28 hrs @ $155/Hr.) $ 4,340.00
Staff Reports, Presentations, etc. for PC &CC
(10 hrs @ $155/Hr.) $ 1,550.00
Public Hearings (I PC & 1 CC)
(6 hrs @ $155./Hr.) $ 930.00
Subtotal: $45,520.00
Reimbursables:
Administrative Assistance (60 hrs. @ $40./Hr.) $ 2,400.00
�
Miscellaneous Printing �, 500.00
�
Misc. Office: Postage, telephone, FAX, photocopies, etc. $ 1,000.00
,
Printing of Draft and Final Housing Element� $ 2,000.00
Subtotal: $ 5,900.00
Total Project Budget: $51,420.00
1. Will be billed at cost.This budget figure is an estimate only.
2. Assumes 5 screencheck draft documents,3 HCD Draft dcx;uments,and 20 PC&CC documents.
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