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.
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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.
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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
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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
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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
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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:
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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
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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.
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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
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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
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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
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CITY OF NEWPORT BEACH
A Municipal Corporation
By: ,
ity Manager
McCabe and Company
By:
Princl'pal