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HomeMy WebLinkAbout06 - Professional Services Agreement for ESHA StudyCITY OF NEWPORT BEACH �d COMMUNITY AND ECONOMIC DEVELOPMENT Hearing Date: May 14, 2002 PLANNINGDEPARTMENT Agenda Item No.: 6 33 o NEWPORT BOULEVARD Staff Person: Patrick J. Alford NEWPORT BEACH, CA 92658 (949) 644 -3235 (949) 644- -0°O% FAX (949) 644-S279 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Professional Services Agreement for ESHA Study SUMMARY: A professional services agreement for consulting services to conduct field studies of environmentally sensitive habitat areas (ESHAs) and prepare updated policy and regulation recommendations for the updates of the Local Coastal Program (LCP) and the General Plan. ACTION: Approve the professional services agreement with Coastal Resources Management. Background SB 516 requires the City to submit a complete application for an LCP to the California Coastal Commission (CCC) on or before June 30, 2003. In an initial review, the CCC staff stated that the City needed to identify environmentally sensitive habitats and adopt ordinances to restrict development adjacent to these areas. In addition, the City is currently in the process of updating the General Plan. Section 65302 of the Government Code mandates that the General Plan include a conservation element and an open space element. Analysis In anticipation of the need for technical studies to conduct the update of the LCP and the conservation and open space elements of the General Plan, and the General Plan Update environmental impact report, staff solicited a proposal from Coastal Resources Management (CRM). This was done in lieu of the standard request for proposals (RFP) process due to the short amount of time available to update the LCP. CRM was selected because of their familiarity with the City from previous biological studies. The proposal includes a review of all existing LCP and General Plan policies and data relating to ESHAs. The consultant's biologists will conduct field studies of all ESHAs within the City's corporate limits, the sphere of influence, and the adjacent coastline. The field studies will identify and describe each ESHA, assess their condition, identify potential threats, and proposed methods of protection. The data collected by the consultant will include data layers and other graphics for incorporation into the City's geographical information system (CIS). The consultant will also draft LCP and General Plan policies relating to ESHAs. The project will be conducted in two parts. Priority will be given to the survey of ESHAs in the Coastal Zone and the update of LCP policies. This will be completed prior to June 30, 2002. The survey of ESHAs outside of the Coastal Zone and the update of General Plan policies will be completed by October 2002. The total not -to- exceed cost of the project is $67,684.00. Proiect Fundine We anticipate sufficient appropriation savings in the General Fund to cover General Plan Update expenditures. Council Policy F -2 allows the City Manager to reprogram appropriations within an individual fund to cover insufficient appropriations in an individual department. However, if there are not sufficient appropriations to cover this shortfall within the General Fund by the end of the FY 2001 -02, a formal budget amendment, appropriating General Fund Reserves to cover this and other General Plan Update expenditures. Submitted by: Prepared by: SHARON Z. WOOD PATRICK J. ALFORD Assistant City Manager Senior Planner Exhibits: 1. Proposed Scope of Work. 2. Draft Professional Services Agreement ESHA Survey PSA May 14, 2002 Page 2 COASTAL RESOURCES MANAGEMENT Marine &ologiml & YVetland Environmental Consulting Services Mr. Patrick L Alford City of Newport Beach Planning Department P.O. Box 1768 Newport Beach, CA 926584915 April 2e, 2002 Re: Updates to the City of Newport Beach Local Coastal Plan and General Phan Dear Mr. Alford: Coastal Resources Management (CM is pleased to provide the City�ofNewport Beach with our scope of work and cost proposal to assist in updating the City's Local Coastal Program Land Use Plan..and its General Plan. Per your request, we have included the changes you requested and have revised the costs accordingly. The folbwing scope of work defines the tasks we will complete in order to provide you with the required updates on Environmentally Sensitive Habitat Areas (ESHA) with the City's corporate limits, sphere of influence, and the adjacent coastline. Coastal Resources Management will utilize the services of Chambers Group, Inc. of Irvine, CA to assist in providing the City with high qMk and profi:Mional products. Our total not -to- exceed cost estimate for thin work is $67,684.00. We look forward to assisting the City in this endeavor. Please give me a call if you have any questions. Sincerely, r TAL URCES MANAGEMENT Biek are PrincipallMariue Biologist attachment 9491489 -9426 • Fax 949/489 -8620 • crmrrw@eartlrlink.net Office • 726 Calle Casha • San Clemente, CA 92673 Mailing • 638 Cpmino de [as Mares. Suite C -240. #627 • Sari Clemente. CA 92673 Z0 3DVd 38VM -136tiO 6Z086Z6908 IZ :£T ZBBZ /90/90 3 Coastal Resources Management (CRM) and Chambers Group, Inc. propose to update the City of Newport Beach Local Plan (LCP) and the City of Newport Beach General Plan. The purpose of the project is to provide the City of Newport Beach with up-to -date and forward - looking information regarding City of Newport Beach Environmentally Sensitive habitat Areas (ESHAs) and enviromneatal policies and regulations related to the natural resources of the City of Newport Beach. The overall scope of work and associated tasks are described below. Task 1. Project Management Mr. Rick Ware, Principal of CRM will be the Project Director and the City's liaison. Dr. Noel Davis will be the Project Manager for Chambers Group's tasks. They will insure that tasks are completed in a satisfactory manner on time and within the estimated budget. Cost Estimate: 84,200.00 Task 2. Review of Coastal Plan, General Plan and Existing Data. Task 2 will consist of a review of the relevant sections of the existing Local Coastal Plan and General Plan. Relevant new policies and regulations that have been enacted since the last updates of these plane will be identified. In addition, existing biological data from sensitive habitats within the City of Newport Beach will be collected and reviewed. Cost Estimate: $7,262.00 Task 3. GIS Data Review. Task 3 will consist of a review of the existing City of Newport Beach GIS data and the preparation of aerial photographs for vegetation mapping and field surveys. The project team will interact closely with the City's planning dent to insure that all available information is reviewed and utilized. Cost Estimate: 52,700.00 Task 4. Field Studies. CRM and Chambers Group biologists will survey and describe each of the existing ESHAs within the City of Newport Beach corporate limits, areas added to the City's corporate limits since the last revisions were made (Newport Coast), Newport Beach's sphere of influence, and adjacent coastline. Additional areas within the City's sphere of influence that will be investigated will be Santa Ana Heights and Newport- Banning Ranch. This information will also be used in the prepmation of the General Plan IBM and therefore, field studies will be conducted at a level appropriate for CEQA analyses. Using the existing naps, aerial photographs, existing literature, field observations, and any other relevant information, biologists will ground truth natural habitats within the City of Newport Beach and identify dominant groups of flora and fnma utilizing the habitats. Boundaries will be mapped. Wildlife corridors and watercourses within the City and the City's sphere of influence will be included in the surveys. The results of the scum will identify and describe each ESHA, assess its condition, identify potential threats, and proposed methods of projection. The project team will provide a listing of all ESHAs and prioritize the sensitivity of these habitats for preservation As part of this task, Mr. Rick Ware and Dr. Davis will conduct rocky shoreline and underwater surveys along the Newport Coast, recently annexed to the City , to identify marme habitats that have a potential to be listed and included as City of Newport Beach ESHAL CRM and Chambers Group, Inc. will also Cost Estimate: 522,000.00. E0 38Cd 36VM -106VO 6ZVBSZ6908 TZ:ET Z00Z/90/50 Task S. Creation of GIS Layers for Local Coastal Plan and General Plan. Based on the results of the field surveys and related data, CRM and Chambers Group will produce GIS data layers and other graphics depicting Environmentally Sensitive Habitat Areas, watercourses, other natural habitats within the City of Newport Beach. Chambers Group will interact closely with the City's GIS persomtel to insure complete compatibility of GIS systems so that the information can be easily incorporated into the Local Coastal Plan and other City documents. Cost Estimate: S51458.00 Task 6. Draft Update of Biological Resource Elements of Local Coastal Plan and General Plan. The project team will prepare an updated version of the "Envuonmenially Sensitive Habitat Areas" and update all policies and other elements related to biological resources in the Local Coastal Plan and the General Pian. Cost Estimate: $18,000.00 Task 7. Preparation of ]Final Update of Local Coastal Plan and General Plan. Commends on the Draft Update will be responded to and the document will be revised to incorporate the City's comments. Cost Estimate: $5,564.00 Task & Meetings. We utiderstand several coordination efforts between the City and CRM/Chambers Group staff will be necessary to fully integrate the data that will be collected and entered into the City's-GIS system, to coordinate report preparation and discuss draft reports, and to insure that the City is fully informed of the project's progress. Mr. Ware and Dr. Davis, and the Chambers Group Assistant Project Manager Don Mitchell will attend two, 2 -hour meetings. Our GIS specialist, Jim Hall, will attend 1, 2 -hour meeting with City Stab Cost Estimate: S2,W.00 CRM and Chambers Group will proceed with the project upon receiving a written authorization to proceed. We understand that two timelines are involved in this process. The first deliverable will be the completion of the ESHA areas within the Coastal Zone, since the City needs to submit a complete application to the Coastal Commission on or before June 3tla, 2002. The General Plan update will be completed as the second phase, and the information on ESHAs outside the Coastal Zone will be completed by approAmately September /October 2002 so that this information can be incorporated into the General Plan Update, scheduled to be completed in early 2003. Cosws Resources MM gram 2 LCP andomed Plan L"M ft"" 00 39Vd 321VM MVO 6zV86Z6908 rZ :Er LBBd /90/90 PROJECT COSTS The total esthriated not -to -exceed cost for this work is $67,684. A sounmary of costs are provided in Table 1 below. This cost assumes that project - related materials, maps, photographs, and other relevant materials will be made available to CRM and Chambers (croup. Additional costs for work conducted outside the identified Scope of Work will be charged to the City of Newport Beach on a time and materials basis with the approval of the City of Newport Beach Project Manager. Table 1. Project Costa, by Task TASK COST 1. Project Management 4,200 2. Review of Existing LCP and Plan Data and Information $7,262 3_ Review of GIS Database $2,700 4. Terrestrial and Marine habitat Studies $22,000 5. Creation of GIS Layer for Local Coastal Plan $5,458 6. Draft UDdate of Elements for the Local Coastal Plan and General Plan $18,000 7. Final Update of Elements for the Local Coastal Plan and General Pin $52564 8. Staff and City of Newport Beach Interactive M $2,500 TOTAL ESTIMATED NOT -TO- EXCEED COST $67,684 CwAdRaM� WP0d G=M rue UpdW Anpw9 0 90 39tld 36VM 108VO 6Zb86Z6908 TZ:ET Z00Z/90/90 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this _th day of , 2002, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and Coastal Resources Management whose address is 726 Calle Casita, San Clemente, California, 92673, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City intends to conduct field studies and prepare recommended updates to the Local Coastal Program and General Plan policies relating to environmentally sensitive habitat areas (hereinafter referred to as "Project'). C. City desires to engage Consultant to conduct professional and technical services for the Project upon the terms and conditions contained in this Agreement. D. The principal member of Consultant, are for purpose of this Project, Mr. Rick Ware. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the _ day of May, 2002 and shall terminate on the 1St day of June, 2003, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, contained in attachment "A" attached hereto and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, contained in the scope of services contained in attachment "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of sixty-eight thousand dollars ($68,000.00). The City Manager shall have the authority to authorize work beyond this amount, not to exceed 25% of the contract amount. 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City, payable by City within thirty (30) days of receipt of invoice subject to the approval of City, and based upon attachment "A". 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with such approval. 3.4 City shall reimburse Consultant only for those costs or expenses that have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of sub - consultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the community professional Professional Services Agreement LCP /GP ESHA Page 2 standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER . Consultant has designated Rick Ware to be its Principal -in- Charge. He shall coordinate all phases of the Project and be available to City at all reasonable times during the Project term Consultant shall not remove or reassign the Principal -in- Charge or assign any new or replacement person to the Project without the prior consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. M Professional Services Agreement LCP /GP ESHA Page 3 Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with the schedule specified in attachment "A ". The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays that are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. Professional Services Agreement LCP /GP ESHA Page 4 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include aftomeys' fees and all other costs incurred in defending any such claim. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. Ik Professional Services Agreement LCP /GP ESHA Page 5 C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Except as specifically authorized under this agreement, Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from.Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability l Professional Services Agreement LCP /GP ESHA Page 6 arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Patrick J. Alford, Senior Planner shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue l Professional Services Agreement 1 LCP /GP ESHA Page 7 work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted K there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making decisions that will foreseeably financially affect such interest. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. SUBCONSULTANT AND ASSIGNMENT City and Consultant agree that a subconsultant may be used for the Community Survey, Task 9. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered Professional Services Agreement LOP /GP ESHA Page 8 personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach ATTN: Patrick J. Alford, Senior Planner 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3235 (Voice) (949) 644 -3229 (Fax) Palford @citv.newport- beach.ca.us (E -mail) All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Coastal Resources Management ATTN: Rick Ware, Principal/Marine Biologist 638 Camino de los Mares, Suite C -240, #627 San Clemente, CA 92673 (949) 489 -9426 (Voice) (949) 489 -8620 (Fax) crmrrw@earthlink.net (E -mail) 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 15 Professional Services Agreement LCP /GP ESHA Page 9 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 32. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Bludau City Manager City of Newport Beach APPROVED AS TO FORM: Robin Clauson Assistant City Attorney CONSULTANT Coastal Resources Management Rick Ware, Principal Professional Services Agreement LCP /GP ESHA Page 10 lei