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HomeMy WebLinkAboutC-3809 - PSA for Consultant Services - Coastal Land Use Plan (CLUP) before the California Coastal CommissionPROFESSIONAL SERVICES AGREEMENT WITH MCCABE AND COMPANY FOR CONSULTING SERVICES THIS AGREEMENT is made and entered into as of this 29th day of July 2005, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City'), and MCCABE AND COMPANY, a California corporation whose address is 122 Voyage Mall, Marina Del Rey, California, 90292 ( "Consultant"), and is made with reference to the following: RECITALS A. The 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 the City. B. The City is currently updating its Local Coastal Program (LCP) for submission to the California Coastal Commission ( "Coastal Commission "). C. The City has submitted the LCP Coastal Land Use Plan to the Coastal Commission on July 2, 2005 and the application (LCP Amendment No. NP13- MAJ-1-04) was deemed complete on July 23, 2005. D. The City desires to engage the Consultant to provide consulting services in connection with certification of the Coastal Land Use Plan, LCP Amendment No. NPB- MAJ -1 -04 ( "Project"). E. The Coastal Commission is required to take action on the project no later than October 21, 2005. F. The Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. G. The principal member of the Consultant for purposes of Project shall be Susan McCabe. H. The City has solicited and received a proposal from the Consultant, has reviewed the previous experience and evaluated the expertise of the Consultant, and desires to retain the Consultant to render professional services under the terms and conditions set forth in this Agreement. L E 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 29th day of July, 2005, and shall terminate seven (7) days after the Coastal Commission acts on the project, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED The Consultant will represent the City before the Coastal Commission to gain certification of the City's Coastal Land Use Plan ( "CLUP "). Tasks will include, but will not be limited to, advising the City on a specific strategy to obtain approval of the CLUP at the Coastal Commission; meeting with Coastal Commission staff to address issues that they raise and suggested modifications that they may propose; meeting with Coastal Commissioners to seek support for the CLUP; assisting the City in identifying and mobilizing support for the CLUP or specific issue areas within the CLUP; if appropriate, advising on appropriate oral and written communications for the Coastal Commission and staff; and advising on an effective oral presentation for the Coastal Commission hearing(s) on the CLUP. 3. TIME OF PERFORMANCE The City and the Consultant agree that a specific schedule cannot be defined for this project. The Consultant will provide services as expeditiously as practicable to meet the Coastal Commission hearing schedule for the project. 4. COMPENSATION TO THE CONSULTANT The City shall pay the Consultant for the services in accordance with the provisions of this Section and a project fee of thirty thousand dollars ($30,000). Ten thousand dollars ($10,000) will be due upon approval of this agreement; ten thousand dollars ($10,000) will be due on October 1, 2005; and ten thousand dollars ($10,000) will be due on the first of the month after the Coastal Commission acts on the project. 4.1 The City shall reimburse the Consultant for all necessary and reasonable travel and lodging expenses incurred on its behalf. 4.2 The Consultant shall submit monthly invoices to the City for all travel and. lodging expenses. The City shall pay the Consultant's invoice(s) within thirty (30) days of receipt, subject to the right to withhold payment for disputed sums as provided under Paragraph 18. `a 0 0 6. PROJECT MANAGER The Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to the City at all reasonable times during the Agreement term. The Consultant has designated Susan McCabe to be its Project Manager. The Consultant shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of the City. The City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Upon written request of the City, the Consultant shall remove from the Project any of its personnel assigned to the performance of services upon reasonable grounds provided by the City to the Consultant. The Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Planning Department. Patrick J. Alford, Senior Planner, shall be the Project Administrator and shall have the authority to act for the City under this Agreement. The Project Administrator or his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist the Consultant in the execution of its responsibilities under this Agreement, the City agrees to provide access to, and upon request of the Consultant, one copy of all existing relevant information on file at the City. The City will provide all such materials in a timely manner so as not to cause delays in the Consultant's work schedule. 8. STANDARD OF CARE 8.1 All of the services shall be performed by the Consultant or under the Consultant's supervision. The 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 community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by the City, nor have any contractual relationship with the City. 8.2 The Consultant represents and warrants to the City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of 3 • • whatsoever nature that are legally required of the Consultant to practice its profession. The Consultant further represents and warrants to the City that the Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of the Consultant to practice its profession. 8.3 The Consultant shall not be responsible for delay, nor shall the 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 the City to furnish timely information or to approve or disapprove the Consultant's work promptly, or delay or faulty performance by the City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, the Consultant shall indemnify, defend and hold harmless the City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement or the Consultant's presence or activities conducted on the Project (including the violations of any law applicable to the services provided). Notwithstanding the foregoing, nothing herein shall be construed to require the Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that the City retains the Consultant on an independent contractor basis and the Consultant is not an agent or employee of the City. The manner and means of conducting the work are under the control of the 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 the Consultant or any of the Consultant's employees or lg agents, to be the agents or employees of the City. The Consultant shall have the responsibility for and control over the means of performing the work, provided that the Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give the City the right to direct the Consultant as to the details of the performance or to exercise a measure of control over the Consultant shall mean only that the Consultant shall follow the desires of the City with respect to the results of the services. 11. COOPERATION The Consultant agrees to work closely and cooperate fully with the City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. The City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY The Consultant shall discuss and review all matters relating to policy and project direction with the City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with the City goals and policies. 13. PROGRESS The 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 work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting the Consultant's indemnification of the City, and rip or to commencement of work. the 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 the City. A. Certificates of Insurance. The Consultant shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Insurance certificates must be approved . by the City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its 5 0 0 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. Workers' Compensation Coverage. The 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, the 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 subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against the City, its officers, agents, employees and volunteers for losses arising from work performed by the Consultant for the City. 2. General Liability Coverage. The 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. 3. Automobile Liability Coverage. The. 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. D. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 2 0 • 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. ii. This policy shall be considered primary insurance as respects to the 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 the City. Any insurance maintained by the City, including any self- insured retention the 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 the 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 the City, its elected or appointed officers, officials, employees, agents or volunteers. 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) days written notice has been received by the City. A. Timely Notice of Claims. The Consultant shall give the City prompt and timely notice of claim made or suit instituted arising out of or resulting from the Consultant's performance under this Agreement. B. Additional Insurance.. The 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. 15. 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 the City. Any of the F 0 10 following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of the Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if the Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of the 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to the City for entering into this Agreement is the professional reputation, experience and competence of the 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 the City. The Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. 17. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless the City authorizes the release of information. 18. WITHHOLDINGS The 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. The Consultant shall not discontinue work as a result of such withholding. The Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. The Consultant shall be entitled to receive interest on any withheld sums at the rate of return that the City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 19. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of the Consultant which result in expense to the City greater than what would have resulted if there were not errors or omissions in the work accomplished by the Consultant, the additional expense shall be borne by the Consultant. Nothing in this paragraph is intended to limit the City's rights under any other sections of this Agreement. 91 20. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS The City reserves the right to employ other Consultants in connection with the Project. 21. 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, the 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 the City. The Consultant shall indemnify and hold harmless the City for any and all claims for damages resulting from the Consultant's violation of this Section. 22. 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 the Consultant to the City shall be addressed to the City at: Patrick J. Alford Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 -644 -3235 Fax: 949 -644 -3229 All notices, demands, requests or approvals from the City to the Consultant shall be addressed to the Consultant at: Susan McCabe McCabe and Company 1121 L Street, Suite 100 Sacramento, CA 95814 Phone: 916 - 553 -4088 Fax: 916- 553 -4089 M 23. 24. 25. 26. 27. 0 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 five (5) calendar days, or if more than five (5) 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, the 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 the Consultant. In the event of termination under this Section, the City shall pay the Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which the Consultant has not been previously paid. On the effective date of termination, the Consultant shall deliver to the City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. COMPLIANCE WITH ALL LAWS The 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 the Consultant shall conform to applicable the City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and the City. 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. INTEGRATED CONTRACT This Agreement represents the full and nature whatsoever between the Parties and agreements of whatsoever kind c agreement or implied covenant shall be CONFLICTS OR INCONSISTENCIES complete understanding of every kind or hereto, and all preliminary negotiations - nature are merged herein. No verbal held to vary the provisions herein. 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 10 of this Agreement shall govern. 28. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both the Consultant and the City and approved as to form by the City Attorney. 29. 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. 30. 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. 31. EQUAL OPPORTUNITY EMPLOYMENT The 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: By: City Attorney ATTEST: B : M. /i LaVonne Harkless 11 CITY OF NEWPORT BEACH A Municipal Corporation By: , ity Manager McCabe and Company By: Princl'pal