HomeMy WebLinkAboutC-3811(A) - PSA for Eminent Domain Counsel ServicesC -3(m (A-)
PROFESSIONAL SERVICES AGREEMENT WITH
STRADLING YOCCA CARLSON & RAUTH
FOR EMINENT DOMAIN COUNSEL SERVICES
THIS AGREEMENT is made and entered into as of thisd day of u
2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"),
and STRADLING YOCCA CARLSON & RAUTH, a professional corporation whose
address is 660 Newport Center Drive, Suite 1600, Newport Beach, California, 92660
("Consultant"), and 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 is planning to construct certain public improvements in the Buck Gully area
located within the City.
C. City desires to engage Consultant to provide eminent domain counsel services in
connection with Buck Gully ("Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of Project, shall be Allison E.
Burns and Jennifer Yu.
F. City has reviewed the previous experience and evaluated the expertise of
Consultant, and desires to retain Consultant to render professional services under
the terms and conditions set forth 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 above written date, and shall
terminate on the 31St day of December, 2010, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole discretion.
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3. COMPENSATION TO CONSULTANT
City shall pay Consultant for services provided under the agreement as set forth in
Exhibit B hereto.
4. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of the
Project. This Project Manager shall be available to City at all reasonable times
during the Agreement term. Consultant has designated Allison E. Burns to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or
any personnel listed in Exhibit A or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the 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.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5. ADMINISTRATION
This Agreement will be administered by the Office of the City Attorney. Mynette
Beauchamp shall be the Project Administrator and shall have the authority to 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.
6. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide usable life of facilities criteria and information with regards to
new facilities or facilities to be rehabilitated.
C. Retain at City's sole cost and expense and provide reports from
additional consultants necessary to complete the Project (e.g. title
companies, appraiser(s) and/or expert witnesses).
7. STANDARD OF CARE
7.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
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technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed by
qualified and experienced personnel who are not employed by City, nor have
any contractual relationship with City. By delivery of completed work,
Consultant certifies that the work conforms to the requirements of this
Agreement and all applicable federal, state and local laws and the
professional standard of care.
7.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force in effect during the term hereof, at its sole cost and expense,
all licenses, permits, qualifications, insurance and approvals of whatsoever
nature that is legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license during
the term of this Agreement.
7.3 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.
8. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or 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 approval for 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 means of performing
the work, provided that Consultant is in compliance with the terms of this Agreement.
Anything in this Agreement that may appear to give City the right to direct Consultant
as to the details of the performance or to exercise a measure of control over
Consultant shall mean only that Consultant shall follow the desires of City with
respect to the results of the services.
9. 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.
10. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
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order to ensure the Project proceeds in a manner consistent with City goals and
policies.
11. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her duly
authorized designee informed on a regular basis regarding the status and progress
of the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
12. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement, a policy or policies of liability insurance of the type and
amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of insurance
with original endorsements to City as evidence of the insurance coverage
required herein. Insurance certificates must be approved by City's Risk
Manager prior to commencement of performance or issuance of any permit.
Current certification of insurance shall be kept on file with City at all times
during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf
shall sign certification of all required policies.
C. Acceptable Insurers. 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 Best's Key Rating Guide,
unless otherwise approved by the City's Risk Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance
for his or her employees in accordance with the laws of the State of
California. In addition, Consultant shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State of
California for all of the subcontractors employees. Any notice of
cancellation or non -renewal of all Workers' Compensation policies
must be received by City at least thirty (30) calendar days (10 calendar
days written notice of non-payment of premium) prior to such change.
The insurer shall agree to waive all rights of subrogation against City,
its officers, agents, employees and volunteers for losses arising from
work performed by Consultant for City.
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General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal injury,
and property damage, including without limitation, contractual liability.
If commercial general liability insurance or other form with a general
aggregate limit is used, either the general aggregate limit shall apply
separately to the work to be performed under this Agreement, or the
general aggregate limit shall be at least twice the required occurrence
limit.
iii. Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities
of the Consultant arising out of or in connection with work to be
performed under this Agreement, including coverage for any owned,
hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers
the services to be performed in connection with this Agreement in the
minimum amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance policy
shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees, agents
and volunteers are to be covered as additional insureds with respect to
liability arising out of work performed by or on behalf of the Consultant.
This policy shall be considered primary insurance as respects to City,
its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly
or indirectly from the Consultant's operations or services provided to
City. Any insurance maintained by City, including any self-insured
retention City may have, shall be considered excess insurance only
and not contributory with the insurance provided hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected or
appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to City, its elected or appointed officers,
officials, employees, agents or volunteers.
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vi. The insurance provided by this policy shall not be suspended, voided,
canceled, or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) written notice has been received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claim made or suit instituted arising out of or resulting from Consultant's
performance under this Agreement.
G. Additional Insurance. 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.
13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted
out without the prior written approval of City. Any of the following shall be construed
as an assignment: 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. 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.
14. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of Consultant.
Assignments of any or all rights, duties or obligations of the Consultant under this
Agreement will be permitted only with the express written consent of City.
Consultant shall not subcontract any portion of the work to be performed under this
Agreement without the prior written authorization of City.
15. CONFIDENTIALITY
All Documents, including drafts, preliminary documents or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
16. 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 and any services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
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Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and
make transcripts or copies of such records and invoices during regular 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 to Consultant under this Agreement.
17. WITHHOLDINGS
City may withhold payment to Consultant 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 work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his/her designee with respect to
such disputed sums. Consultant shall be entitled to receive interest on any withheld
sums at the rate of return that City earned on its investments during the time period,
from the date of withholding of any amounts found to have been improperly withheld.
18. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
19. CONFLICTS OF INTEREST
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
any 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.
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 immediate 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.
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20. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served when
delivered 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:
Attn: Mynette Beauchamp
Office of the City Attorney
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949-644-3131
Fax: 949-644-3139
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Allison E. Burns
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Phone: 949-725-4187
Fax: 949-823-5187
21. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably
required to cure the default and the defaulting party fails to give adequate assurance
of due performance within two (2) calendar days after receipt of written notice of
default, specifying the nature of such default and the steps necessary to cure such
default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion
and without cause, of terminating this Agreement at any time by giving seven (7)
calendar days prior written notice to Consultant. In the event of termination under
this Section, City shall pay Consultant for services satisfactorily performed and costs
incurred up to the effective date of termination for which Consultant has not been
previously paid. On the effective date of termination, Consultant shall deliver to City
all reports, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
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22. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all
work prepared by Consultant shall conform to applicable City, county, state and
federal laws, rules, regulations and permit requirements and be subject to approval
of the Project Administrator and City.
23. 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.
24. 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.
25. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and
the Scope of Services or any other attachments attached hereto, the terms of this
Agreement shall govern.
26. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason of
the authorship of the Agreement or any other rule of construction which might
otherwise apply.
27. AMENDMENTS
This Agreement may be modified or amended only by a written document executed
by both Consultant and City and approved as to form by the City Attorney.
28. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
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29. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated in
a court of competent jurisdiction in the County of Orange.
30. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first written above.
APPROVED AS TO FORM:
Myn` D eayach mp
Assistant City Att ney
ATTEST:
JC
Aqw"�
_A04u- Leilani Brown, J 'Onorm,
City Clerk
CITY OF NEWPORT BEACH
Office of the City Attorney
By:
David R. Hunt
City Attorney
CONSULTANT:
STRADLING YOCCA CARLSON & RAUTH
A professional corporation
By
Allis �hs
Attachments: Exhibit A—� 1 F�pife6ervices
Exhibit B — Schedule of Billing Rates
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EXHIBIT "A"
SCOPE OF WORK
The legal services to be provided by the Firm shall include:
(a) attending negotiation sessions and otherwise assisting City Staff in the negotiation
with property owners;
(b) preparing all resolutions, notices, agreements, pleadings, and other papers and
documents required in the proceedings;
(c) appearing at all hearings related to the proceedings, and attending any other
meetings where attendance is requested by the City;
(d) providing advice and instruction to the City and its staff in connection with any of the
foregoing.
A-1
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EXHIBIT B
FEE SCHEDULE
FOR CITY OF NEWPORT BEACH
BUCK GULLY
For eminent domain assignments, we charge fees based on our hourly rates of $300 for
Ms. Burns or other shareholders, $225 to $250 for associates and $100 for paralegals. Such
fees would be billed monthly.
These rates are significant reductions from the Firm's "Design Rates" for these
attorneys, which range from $625 to $410 per hour for shareholders and $400 to $275 per hour
for associates. Such fees would be billed monthly.
In addition to the fees set forth above, we would propose to be reimbursed for the actual
cost of any out-of-pocket expenses reasonably incurred by the Firm in the course of its
employment, such as document reproduction, telecommunications charges, printing costs, filing
fees, long-distance telephone calls, messenger services, overnight delivery services, travel and
similar items of expense.
B-1
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