Item 6 - Agmt. with PROS Consult. For PCPA Cost of Services, Fee Study and Appropriate FundingDATE: TO: FROM: CONTACT: SUBJECT: Summary: AGENDA RE PO RT City of Poway CITY COUNCIL October 19, 2021 Honorable Mayor and Members of the City Council Wendy Kaserman, Assistant City Manager/Acting Director of Community Services Wll-Wendy Kaserman, Assistant City Manager/Acting Director of Community Services (858) 668-4502 or wkaserman@poway.org Belinda Romero, Recreation Area Manager -Poway Center for the Performing Arts (858) 668-4691 or bromero@poway.org Approval of Agreement with PROS Consulting, Inc. for a Cost of Services and Fee Study of the Poway Center for the Performing Arts and Appropriate Funds for the Completion of the Study The City Council held a workshop on April 6, 2021, to discuss the Poway Center for the Performing Arts (PCPA) and provided direction to City staff on multiple topics related to future operations of the PCPA. There were a number of action items coming out of the workshop that staff is continuing to work through. One of those items included completing an updated fee study for the PCPA, as well as conducting research on operations, fees, and best practices in place at similar venues and implementing changes as recommended at the PCPA. This item recommends entering into an agreement with PROS Consulting, Inc. to complete a cost of services and fee study of the PCPA, along with conducting related market research for similar venues. Recommended Action: It is recommended the City Council approve the Agreement and authorize the City Manager to execute all necessary documents associated with the Agreement between the City of Poway and PROS Consulting, Inc. for a Cost of Services and Fee Study of the Poway Center for the Performing Arts and Appropriate Funds for the Completion of the Study. Discussion: The City Council held workshops on November 5, 2019, and April 6, 2021, to discuss the Poway Center for the Performing Arts (PCPA). During the first workshop, staff presented information about the evolution of the current PCPA operating model, the primary user groups and existing use agreements, as well as the budgetary challenges with maintaining the ongoing annual operating subsidy (approximately $700k/annually) and funding upcoming capital projects (approximately $3.3m) 1 of 20 October 19, 2021, Item #6
including HVAC work, roofing, flooring, and seat replacement. The April 6, 2021 workshop focused on getting City Council direction on several critical decision points related to the Use and Use Policy, Cost Recovery, Agreements with User Groups, Fundraising, and Best Practice Research. The City Council directed staff to engage a professional fee consultant with expertise in cost recovery, to develop fees consistent with the cost recovery and capital funding direction provided to staff. In moving forward with a cost of services and fee study, Council expressed the desire to maintain the two existing fee categories, one for private business, and one for non-profit organizations. Council also expressed interest in exploring discounted rates for Poway user groups, as well as potentially implementing peak and off-peak rates, and establishing different rates for purely private functions versus arts and education functions. In addition to the cost of services and fee study, the City Council also directed staff to research similar performing arts venues to identify best practices in place at other facilities that may help improve the efficiency of PCPA operations, reduce the operating subsidy, and generate funding for major capital projects. The proposed scope of services for the agreement with PROS Consulting, Inc. addresses all of the items above related to a fee study and best practices research through completing a cost of services and fee study, as well as completing a significant amount of market research for similar venues. Research will include everything from fees, to user agreements, to sponsorships, to operating practices related to booking, ticketing, concessions, and all aspects of theater operations. The venues selected for comparison are the same venues used for the last fee study in 2015, two additional venues were added at the suggestion of the residents who have been assisting the City Council PCPA Subcommittee. The scope of services is broken down into the following categories, more detailed information about what each category includes is available in Attachment 1 of the attached Standard Agreement for Services: 1) Project Management 2) Demographics and Market Comparison 3) Key Leader Input and Pricing Philosophy 4) Cost of Service Model and Financial Pro-Forma 5) Plan Development Following City Council approval of the Agreement, staff and the consultant plan to complete the market research prior to meeting with the City Council to discuss pricing philosophy in order to have baseline information about the fee structure and fee philosophy in place at similar venues. This will help the City to make an informed decision about changes that will potentially impact user groups. The Cost of Service Model and Financial Pro-Forma will be dynamic in the sense that assumptions can be manipulated to show the financial impact of various fee decisions and fee philosophies. It is anticipated the study will take six to eight months to complete. Proposed changes will be presented to the City Council for consideration. User groups will have the opportunity to review and comment on any proposed changes. To ensure that all facility users have adequate time to adapt to fee, operational, and any other adjustments that may be made as a result of the study, it is anticipated changes would not be implemented until the 2023-2024 performance season. Poway OnStage, Poway Unified School District, and all other rental clients will begin booking dates for the 2023-2024 performance season as early as Fall 2022. Separate from the research included in the Cost of Services and Fee Study, staff is also in the process of executing agreements related to the fundraising feasibility study that the City Council also provided direction to pursue at the April 6, 2021, workshop. This study will focus exclusively on the feasibility of 2 of20 October 19, 2021, Item #6
a campaign to generate significant funding for the establishment of an endowment that could help offset annual operating costs at the PCPA. As the City Council will recall, the McCarthy Family Foundation provided a generous grant to the City to initially fund the feasibility study. Depending upon what the results show, the McCarthy Family Foundation would also generously grant funds to be used as the seed money for an endowment. Environmental Review: This action is not subject to review under the California Environmental Quality Act (CEQA). Fiscal Impact: The cost to complete the Cost of Service and Fee Study is $57,000 plus reimbursement for actual expenses (i.e., travel/lodging if determined to be necessary). Staff is recommending the City Council appropriate $57,000 from the General Fund's Unassigned Fund Balance to the Poway Center for the Performing Arts Division Budget -Other Contractual Services (204020-41200). Public Notification: None. Attachments: A. Standard Agreement For Services with PROS Consulting, Inc. Reviewed/ Approved By: W.er~ Assistant City Manager 3 of20 Reviewed By: Alan Fenstermacher City Attorney October 19, 2021, Item #6
City of Poway STANDARD AGREEMENT FOR SERVICES This Agreement, entered into this __ day of __ , 2021 (the "Commencement Date"), by and between the CITY OF POWAY, a municipal corporation (hereinafter referred to as "City") and PROS Consulting, Inc (hereinafter referred to as "Consultant"). RECITALS WHEREAS, City desires to obtain the services of a private consultant to perform a cost of service and fee study of the Poway Center for the Performing Arts ("PCPA"); WHEREAS, Consultant is a nationally recognized full-service management consulting and planning firm focusing on services to government and not-for-profit agencies and has represented that Consultant possesses the necessary qualifications to provide such services; WHEREAS, City has authorized the preparation of an agreement to retain the services of Consultant as hereinafter set forth. NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONSUL TANT ON THE FOLLOWING TERMS AND CONDITIONS: 1. Scope of Services. Consultant shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 2. Compensation and Reimbursement. City shall compensate and reimburse Consultant as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 3. Term of Agreement. The term of this Agreement shall be as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 4. Termination. This Agreement may be terminated with or without cause by City. Termination without cause shall be effective only upon 60-day written notice to Consultant. During said 60-day period, Consultant shall perform all consulting services in accordance with this Agreement. This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Consultant in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City. Termination for cause shall be effected by delivery of written notice of termination to Consultant. Such termination shall be effective upon delivery of said notice. 5. Confidential Relationship. 4of20 ATTACHMENT A October 19, 2021, Item #6
City may from time to time communicate to Consultant certain information to enable Consultant to effectively perform the services. Consultant shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Consultant shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Consultant, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Consultant without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Consultant by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. Consultant shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this contract without the prior written consent of the City. In its performance hereunder, Consultant shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. 6. Office Space and Clerical Support. Consultant shall provide its own office space and clerical support at its sole cost and expense. 7. Covenant Against Contingent Fees. Consultant declares that it has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, that it 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 the Agreement. For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole 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. 8. Ownership of Documents. All memoranda, reports, plans, specifications, maps and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Consultant upon demand. 9. Conflict of Interest and Political Reform Act Obligations. During the term of this Agreement Consultant shall not act as consultant or perform services of any kind for any person or entity whose interests conflict in any way with those of the City of Poway. Consultant shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Consultant shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Consultant has a financial interest as defined in Government Code Section 87103. Consultant represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City. "Consultant" means an individual who, pursuant to a contract with a state or local agency: 5 of20 October 19, 2021, Item #6
(A) Makes a governmental decision whether to: 1. Approve a rate, rule or regulation; 2. Adopt or enforce a law; 3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; 4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval; 5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract; 6. Grant City approval to a plan, design, report, study, or similar item; 7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code. DISCLOSURE DETERMINATION: [8J 1. Consultant/Contractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. No disclosure required. D 2. Consultant/Contractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, Consultant/Contractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law. Department Director 10. No Assignments. Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void. 6 of20 October 19, 2021, Item #6
11. Maintenance of Records. Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the contract period and for three (3) years from the date of final payment under this Agreement, for inspection by City and copies thereof shall be furnished, if requested. 12. Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of the City of Poway. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes such services. 13. Licenses, Permits, Etc. Consultant represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Consultant to practice its profession. 14. Consultant's Insurance. Consultant shall provide insurance as set forth in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 15. Indemnification. (a) For Claims (as defined herein) other than those alleged to arise from Consultant's negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Consultant's negligent performance under this Agreement, or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, sub-consultants or employees. (b) For Claims alleged to arise from Consultant's negligent performance of professional services, lndemnitees shall have no liability to Consultant or any other person for, and Consultant shall indemnify and hold harmless lndemnitees from and against, any and all Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Consultant's negligent performance of any professional services under this Agreement, or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, sub-consultants or employees, committed in performing any of professional services under this Agreement. For 7 of20 October 19, 2021, Item #6
Claims alleged to arise from Consultant's professional services, Consultant's defense obligation to lndemnitees shall include only the reimbursement of reasonable defense costs and attorneys' fees to the extent caused by Consultant's negligence. (c) The foregoing obligations of Consultant shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers. (d) In any and all Claims against City by any employees of the Consultant, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant under worker's compensation acts, disability benefit acts or other employee benefit acts. (e) Consultant shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Consultant is carrying and maintaining; however, if Consultant fails to take such action as is necessary to make a claim under any such insurance policy, Consultant shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Consultant under any insurance policy or policies required pursuant to this Agreement. (f) The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section 15. (g) The rights and obligations of the parties described in this Section 15 shall survive the termination of this Agreement. 16. Assumption of Risk. Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Consultant: (a) Consultant hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Consultant that occurs in the course of, or in connection with, the performance of Consultant's obligations under this Agreement, including but not limited to Consultant's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Consultant or its employees in connection with Consultant's performance its obligations under this Agreement, including but not limited to Consultant's Scope of Services. 17. Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 18. Personnel. Consultant shall assign qualified and certified personnel to perform requested services. The City shall have the right to review and disapprove personnel for assignment to Poway projects. 8 of20 October 19, 2021, Item #6
City shall have the unrestricted right to order the removal of any person( s) assigned by Consultant by giving oral or written notice to Consultant to such effect. Consultant's personnel shall at all times comply with City's drug and alcohol policies then in effect. 19. Notices. Notices shall be given as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 20. Governing Law. Forum Selection and Attorneys' Fees. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Each party to this Agreement consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central Division, unless the parties mutually agree to submit their dispute to arbitration. Consultant hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. The prevailing party in any such action or proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the foregoing, in the event that the subject of such an action is compensation claimed by Consultant in the event of termination, Consultant's damages shall be limited to compensation for the 60-day period for which Consultant would have been entitled to receive compensation if terminated without cause, and neither party shall be entitled to recover their litigation expenses. 21. Gender. Whether referred to in the masculine, feminine, or as "it," "Consultant" shall mean the individual or corporate consultant and any and all employees of consultant providing services hereunder. 22. Counterparts. This Agreement (and any amendments) may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Documents delivered by telephonic facsimile transmission shall be valid and binding. 23. Entire Agreement. This Agreement shall constitute the entire understanding between Consultant and City relating to the terms and conditions of the services to be performed by Consultant. No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby. 9 of 20 24. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013. October 19, 2021, Item #6
Contractor hereby certifies that all persons providing services to City by Contractor are not current members of the California Public Employees' Retirement System (Cal PERS) and shall not become members of CalPERS while providing services to City. Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified. 25. Severability. If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. (Remainder of page intentionally left blank) 10 of 20 October 19, 2021, Item #6
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written. CITY OF POWAY By: __________ _ Chris Hazeltine, City Manager Date: __________ _ ATTEST: Carrie Gallagher, CMC, City Clerk APPROVED AS TO FORM: By: ___________ _ Alan Fenstermacher, City Attorney 11 of 20 CONSULTANT PROS CONSUL TING, INC. By: ___________ _ Katherine Younger Chief Operating Officer Date: ___________ _ October 19, 2021, Item #6
A. "SPECIAL PROVISIONS" EXHIBIT "A" Scope of Services. Consultant agrees to perform consulting services as required by City, which shall consist of the background investigative services further described in the Scope of Services, which is included in this document as Attachment 1, and incorporated by reference, as if its contents were fully set forth herein. Consultant shall provide the necessary qualified personnel to perform the services. B. Compensation and Reimbursement. City shall pay Consultant a fee for each task completed in accordance with the fee proposal contained within the Scope of Services, which are included in this document as Attachment 1. Total fee is not to exceed $57,000. Consultant's fee shall include and Consultant shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received. C. Term of Agreement. This Agreement shall be effective from the Commencement Date of ____ , 2021, and ending December 31, 2022, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." This Agreement may be extended for up to one additional one-year period upon approval in writing of the City Manager and Consultant. Upon expiration or termination of this Agreement, Consultant shall return to City any and all equipment, documents or materials and all copies made thereof which Consultant received from City or produced for City for the purposes of this Agreement. D. Consultant's Insurance. 1. Coverages: Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate. (b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit. (c) Consultant shall obtain and maintain, during the life of the Agreement, a policy of Professional Errors and Omissions Liability Insurance with policy limits of not less than $1,000,000 combined single limits, per claim and annual aggregate. 12 of 20 October 19, 2021, Item #6
(d) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance. 2. Endorsements: Endorsements shall be obtained so that each policy contains the following three provisions: (a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice. "Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City." (c) Primary Coverage. "The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City." 3. Insurance Certificates: Consultant shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement. E. Notices. All notices, billings and payments hereunder shall be in writing and sent to the following addresses: To City: To Consultant: 13 of 20 City of Poway Attn: Wendy Kaserman 13325 Civic Center Drive Poway, CA 92064 PROS Consulting, Inc. 35 Whittington Drive, Suite 300 Brownsburg, IN 46112 October 19, 2021, Item #6
EXHIBIT "B" Cal Gov Code§ 7522.56 Deering's California Codes are current through all 1016 chapters of the 2018 Regular Session and the November 6, 2018 Ballot Measures. Deering's California Codes Annotated> GOVERNMENT CODE> Title 1 General> Division 7 Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public Employees' Pension Reform Act of 2013 § 7522.56. Provisions applicable to person receiving pension benefit from public retirement system; Section supersedes conflicting provisions (a)This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section. (b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section. ( c) A person who retires from a public employer may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration. ( d)Appointments of the person authorized under this section shall not exceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement. (e) 14 of 20 (!)Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12-month period prior to an appointment described in this section, the retired person received any unemployment insurance compensation arising out of prior employment subject to this section with ATTACHMENT A October 19, 2021, Item #6
a public employer. A retiree shall certify in writing to the employer upon accepting an offer of employment that he or she is in compliance with this requirement. (2)A retired person who accepts an appointment after receiving unemployment insurance compensation as described in this subdivision shall terminate that employment on the last day of the current pay period and shall not be eligible for reappointment subject to this section for a period of 12 months following the last day of employment. (f)A retired person shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement unless he or she meets one of the following conditions: 15 of 20 (l)The employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting. The appointment may not be placed on a consent calendar. (2) (A)Except as otherwise provided in this paragraph, for state employees, the state employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed state employment position before 180 days have passed and the appointment has been approved by the Department of Human Resources. The department may establish a process to delegate appointing authority to individual state agencies, but shall audit the process to determine if abuses of the system occur. If necessary, the department may assume an agency's appointing authority for retired workers and may charge the department an appropriate amount for administering that authority. (B)For legislative employees, the Senate Committee on Rules or the Assembly Rules Committee certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (C)For employees of the California State University, the Trustees of the California State University certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (3)The retiree is eligible to participate in the Faculty Early Retirement Program pursuant to a collective bargaining agreement with the California State University that existed prior to January 1, 2013, or has been included in subsequent agreements. (4)The retiree is a public safety officer or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter. October 19, 2021, Item #6
(g)A retired person who accepted a retirement incentive upon retirement shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement and subdivision (f) shall not apply. (h)This section shall not apply to a person who is retired from the State Teachers' Retirement System, and who is subject to Section 24214, 24214.5 or 26812 of the Education Code. (i)This section shall not apply to (1) a subordinate judicial officer whose position, upon retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to work in the converted position, and the employer is a trial court, or (2) a retiree of the Judges' Retirement System or the Judges' Retirement System 11 who is assigned to serve in a court pursuant to Section 68543.5. History Added Stats 2012 ch 296 § 15 (AB 340), effective January 1, 2013. Amended Stats 2013 .ch 528 § 11 (SB 13), effective October 4, 2013 (ch 528 prevails); ch 76 § 75 (AB 383), effective January 1, 2013; Stats 2014 ch 238 § 1 (AB 2476), effective January 1, 2015. Annotations Notes Amendments: Note-Amendments: 2013 Amendment: Substituted (1) "have passed" for "has passed" in the first sentence of subds (f)(l) and (f)(2); (2) "or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter" for "of firefighter" in subd (f)(4); and (3) "Judges' Retirement System" for "Judges' Retirement System I" in subd (i). 16 of 20 October 19, 2021, Item #6
ATTACHMENT NO. 1 SCOPE OF SERVICES Based on conversations with the City of Poway's leadership, the PROS Consulting team presents the overall scope items for a cost of service and fee study of the Poway Center for the Performing · Arts ("PCPA"). Task 1 -Project Management -$6500 A. Kick-off Meeting, Data Collection & Project Management -A virtual kick-off meeting should be attended by City staff and Consulting Team members to confirm project goals, objectives, and expectations. Detailed steps include: • Confirmation -The project goals, objectives, scope, and schedule will be confirmed. • Communications -Confirmation on lines of communication, points of contact, level of involvement by District staff and local leaders, and other related project management details. • Data Collection -The Consulting Team will collect, log, and review key data and information to facilitate a thorough understanding of the project background. Task 2 -Demographics and Market Comparison -$6500 ( Task 2A included in Community Park Plan) A. Demographic Analysis -The Consulting Team will utilize the demographic and trends analysis developed as a part of the Community Park Needs Assessment to quantify the target audience and identify recreation trends that may help drive programmatic ideas and visitation to PCPA. B. Benchmarking and Market Comparison -The Consulting Team will compare PCPA's overall offerings, operating practices, dark period or not, fees / charges as well as pricing policies with other comparable facilities that include but are not limited to a. Soka Performing Arts Center b. Cerritos Center for the Performing Arts c. La Mirada Theater for the Performing Arts d. Livermore Valley Performing Arts Center e. McCallum Theater f. Haugh Performing Arts Center g. PYLUSD Performing Arts Center h. Chandler Center for the Arts i. Others TBD as needed (e.g. Lesher Center for the Arts, Walnut Creek) The questions include but are not limited to: a. City population, median age, and income b. Who owns the facility and who manages the facility c. If on school property, are there shared use agreement with the school district 17 of 20 October 19, 2021, Item #6
d. Is there is a professional performance series? If yes, how is that booked (i.e. venue staff or third party agreement) e. Number of annual events and patrons f. Adopted cost recovery policies g. Rental information such as time period requirements, after hour policies, restricted uses h. Cost differences such as rehearsal vs. performance rates, weekend vs. weekday, staff included within the rate or charged separately i. Total revenues and expenses, other revenue sources i.e. foundation, investments, ticket revenue, fundraising, city/college contribution, fee adjustment schedules j. Are there set closure periods for maintenance? If so, for how many days annually is the facility closed? Number of days available for programming. k. Collection of facility fees for maintenance, ticket handling fees, credit card transaction fees I. Rental process and steps and point at which deposit is collected m. Facility manager scheduling process -how far in advance can reservations be made, which group/s have priority access to calendar and does the priority also inform how far in advance reservations can be made -we are having quite the time with modifying our calendaring process. At this point, it is very labor extensive. n. Ticketing options and consignment handling -meaning do rental clients have to use the venues ticketing service or can they choose to take tickets on consignment. Consignment is a lower cost option for groups but comes with its own set of challenges. o. Use of ushers -paid ushers or volunteers? p. Concession operation -who operates and who keeps the revenue? This comparison will help create an understanding of the competitive framework and for future recommendations on variety of operations ranging from ticketing to concessions, use of ushers etc. Task 3-Key Leader Input and Pricing Philosophy -$6000 A. Key Leadership and Staff Interviews -The Consulting Team will conduct up to eight (8) virtual meetings over one day to identify the key issues and areas of opportunity for PCPA with respect to programming, partnerships and pricing. The following list of potential interviewees will be used to select the final list in conjunction with the staff: • Elected Officials • City Leadership • City Staff B. Governance Analysis PROS will conduct a virtual work session with key management staff on what they consider to be core essential services, important services, and value-added services based on 18 of 20 October 19, 2021, Item #6
operating practices. The focus will be on whom the services are provided to, for what purpose, for what benefit, and for what cost or level of subsidy. All services and functions of the agency are classified as (a) Core, (b) important, or (c) Value Added based on definitions and criteria agreed upon with the staff. This will ultimately help drive the desired cost recovery range for each of the key areas for the PCPA and help shape the pricing decisions and the pro-forma. Task 4 -Cost of Service Model and Financial Pro-Forma -$33,500 A. Cost of Service Model -The Consulting Team will assess the cost of service and revenue recovery for the PCPA. The City will select the components to be evaluated for the cost-of-service model. This model will be focused on Direct Cost primarily and will be provided to staff upon completion of the process to continue using and updating. As part of the project approach, staff training will be conducted with key staff during the model development processes to ensure that staff users are equipped to use the models without assistance from the Consulting Team. B. Pricing and revenue enhancement strategies -will be determined based on a process which highlights the level of exclusivity received by the participant and the value of experience provided. These will also be derived from the market study benchmark to ensure the fees and charges are comparable to the market. Also, additional revenue sources besides fees and charges will be explored to help bolster the bottom line and ensure greater financial sustainability. These can include • Sponsorships (high level recommendations only -existing Consultant to research this) • Partnerships (high level recommendations only -existing Consultant to research this) • Concession operations/opportunities • Marketing of the system • Contracting options C. Operating Conditions Assumptions This will include a review and assessment for a variety of areas that City staff is seeking to update the current operating condition as well as better position the PCPA for the future. The assumptions will be provided by Poway City staff for the following areas: • Facility ownership and management • Shared Use Agreements • Facility scheduling process and concessions operations • Event booking and logistics including number of event days versus dark days; facility closures and maintenance requirements etc. • Ticketing options • Staffing model review including use of ushers D. Financial Plan/Pro-Forma -Based on the program/operations of the PCPA, the Consulting Team will develop a multi-year pro-forma outlining the revenue and expense projections and ultimate cost recovery as well as anticipated subsidy expected to be provided by the City. Financial modeling will be completed in Microsoft Excel a fully functional version of the electronic model will be provided to the City for future use as a budgeting and planning tool. 19 of 20 October 19, 2021, Item #6
The electronic financial model, fully linked and functional with the ability to project and model dynamic scenarios, will include: • Expenditure detail o Staffing costs o Contractual costs, including but not limited to, utilities, maintenance and repair, insurance, office/license/dues, advertising and promotion o Commodity costs for program area and general facility requirements o Variable costs based on varying types of offerings including events vs. rehearsals etc. o Others • Revenue and participation detail (and escalation factors built in) o General admissions by participant category and price point (youth, adult, weekday, weekend, etc.) ■ Handling Fees only for ticketing (rest goes to renters) o Facility fees collections o Program or class offerings by participant category o Rental by space/program area by price point Task 5 -Plan Development -$4500 A. Draft and Final Report Preparation and Briefings The Consulting Team will prepare a draft report outlining the key findings, existing cost of service and future recommendations for pricing and financial sustainability. This will be a presented in a virtual setting to the City leadership, including City Council. B. Executive Summary A color version of the final document and executive summary with the supporting documents will be delivered electronically to the City staff. Total Fees (Tasks 1 to 5) $57,000 Expenses Reimbursable at actuals. Timeline The estimated project timeline from start to completion is anticipated to be 6-8 months. 20 of 20 October 19, 2021, Item #6