HomeMy WebLinkAboutC-3896 - PSA for Interim Planning DirectorRECEp
CITY OF NEWPORT-BEACH
tHC CIiY CAE '_
February 5, 2007
Mr. Paul J. Ireland,
Partner
Hogle- Ireland, Inc.
2860 Michelle Drive
Irvine, CA 92606
Subject: Professional Service Agreement
For Interim Planning Director
Dear Mr. Ireland:
Consistent with our phone conversation of February 2, 2007, and with Section
26, "Termination," of the "Professional Services Agreement with Hogle- Ireland,
Inc. for Interim Planning Director" approved by the Newport Beach City Council
on October 24, 2006, I am providing this notice on behalf of the City of Newport
Beach that the City will terminate the Agreement effective at the close of
business on Friday, March 2, 2007. We appreciate the service provided by Hogle-
Ireland under this agreement and look forward to working with Hogle- Ireland in
the future.
Sincerely,
Sharon Z. Wood,
Assistant City Ma ger
Copies to: City Clerk
Administrative Services Director
City Hall • 3300 Newport Boulevard • Post Office Box 1768
Newport Beach California 92658 -8915 • www.city.newport- beach.ca.us
PROFESSIONAL SERVICES AGREEMENT WITH
HOGLE - IRELAND, INC. FOR INTERIM PLANNING DIRECTOR
THIS AGREEMENT is made and entered into as of this off" day of October, 2006, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
Hogle - Ireland, Inc., a California Corporation whose address is 2860 Michelle Drive,
Suite 100, Irvine, California 92606 ( "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 desires to engage Consultant to serve as Interim Planning Director
("Project").
C. Consultant employs management personnel that possess the skill, experience,
ability, background, certification and knowledge to provide the services described
in this Agreement.
D. The principal member of Consultant who will provide the services of an Interim
Planning Director shall be David A. Lepo.
E. City has solicited and received a proposal from Consultant, 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 November 6, 2006, and shall
terminate on the 31st day of March, 2007, unless extended by mutual consent of
the parties or 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 the services provided by David Lepo on a fixed fee
basis in accordance with the provisions of this Section. Consultant's
compensation for all work performed in accordance with this Agreement,
excluding all reimbursable items, shall not exceed Eight -Nine Thousand, Five
Hundred Eighty-Three Dollars and no /100 ($89,583.00) without prior written
authorization from City.
4.1 Consultant shall submit monthly invoices to City for the amount of
Seventeen Thousand, Nine Hundred Seventeen Dollars ($17,917.40) and
any reimbursable expenditures,. with a description of reimbursable items.
As consideration for this monthly amount, David Lepo shall provide the
City with a minimum of eighty (80) hours per two -week City pay period,
and shall be entitled to all City holidays, in addition to personal leave as
provided by Consultant, not to exceed eight and one -half (8.5) days for
the term of this agreement. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. Costs for travel required for City business in the amount and
manner of reimbursement provided by City policy.
B. 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.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work"
means any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Scope of
Services and which the parties did not reasonably anticipate would be
necessary at the execution of this Agreement. Compensation for any
authorized Extra Work shall be determined between City and Consultant at
the time the Extra Work is authorized.
5. DESIGNATED EMPLOYEE
Consultant has designated David Lepo to be the Interim Planning Director, who
shall coordinate all phases of the Project. Consultant shall not remove David
Lepo or reassign the services to be provided by this agreement without the prior
written consent of City.
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6. ADMINISTRATION
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This Agreement will be administered by the City Manager's Office. Sharon
Wood 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.
7. 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 office space and supplies, and professional and clerical support
staff.
8. STANDARD OF CARE
8.1 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 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.
8.2 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.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, 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 breach of the terms and conditions of this Agreement, and /or the negligence,
willful acts, and /or errors /omissions of David Lepo and /or Consultant.
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Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole 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 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. 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.
11. 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.
12. 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 order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
David Lepo will be responsible for keeping the Project Administrator 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.
14. 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.
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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 subcontractor's
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.
ii. 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
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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:
L 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
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.
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.
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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 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.
16. 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.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
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 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.
18. 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 City authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
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The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all 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.
20. 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 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.
21. 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.
22. 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 what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and/or
restoration expense shall be bome by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
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24. CONFLICTS OF INTEREST
David Lepo, acting as Interim Planning Director, will 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.
25. 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: Sharon Wood
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 -644 -3222
Fax: 949 - 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Paul Ireland
Hogle- Ireland, Inc.
2860 Michelle Drive
Suite 100
Irvine, CA 92606
Phone: 949 - 553 -1427
Fax: 949- 553 -0935
26. 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
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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.
27. 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.
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.
30. 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.
31. 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.
IU]
32. 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.
33. 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.
34. 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.
35. 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:
Robin Clauson,
City Attorney
for the City of Newport Beach
/_ii11*15
By:
V .
Y
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Cor orati n
B
Mayor
for the City of Newport Beach
CONSULTANT:
Attachment: Exhibit A — Scope of Services
Uorp or to ce
Title: #`c ' oto Se
Print Name: -r. 44&tP
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. s21
October 24, 2006
AA Df` ML- kA fry)
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Homer L. Bludau, City Manager
949 -644 -3000, hbludau @city.newport- beach.ca.us
SUBJECT: Professional Services Agreement with Hogle - Ireland, Inc. for Interim
Planning Director and Budget Amendment to Transfer Funds to
Professional Services Account
ISSUE:
Should the City retain David Lepo of Hogle- Ireland, Inc. to serve as Interim Planning
Director for up to a year?
RECOMMENDATION:
Approve the Professional Services Agreement and authorize the Mayor and City
Clerk to execute the agreement.
2. Approve a budget amendment transferring $143,333 to Planning Professional
and Technical Services, 2710 -8080, $72,825 in salary savings from 2710 -7000
and $70,508 from unappropriated General Fund reserve.
DISCUSSION:
Planning Director Patricia Temple has announced her intention to retire from City
service as of February 1, 2007. 1 believe that the immediate appointment of a new
person to this position would not be the best course at this time. As highlighted in the
recent report to the City Council evaluating the development review and permitting
processes, the Planning Department needs additional staff to manage the current high
level of development activity. The Department also needs to improve some procedural
aspects of its operation. It is likely that addressing these items will also require
restructuring of departmental organization. I believe that the Planning Department will
be better served by appointing an interim Director to take the Department through these
challenging times, and then appointing a permanent Director to take over management
of the Department in its new form.
PSA with Hogle4rA*d, Inc. for Interim Planning Directced Budget Amendment
October 24, 2006
Page 2
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David Lepo, a Principal in the Hogle- Ireland firm, is very familiar with the City of
Newport Beach and With the Planning Department and its needs. He has handled large
development projects for us over the past few years, including the Lexus dealership and
the Hoag Hospital Master Plan Amendment. I have been impressed with Mr. Lepo's
quick understanding of Newport Beach's complex land use regulatory system as well as
his attention to detail, follow- through and effective presentations before the Planning
Commission and City Council. Mr. Lepo has experience at the department director
level, having been Development Services Manager for the City of Signal Hill for eight
years and Community Development Director for the City of Los Alamitos for four years,
both as a city employee.
The Professional Services Agreement provides for Mr. Lepo to serve for a period of
twelve months, which may be extended by mutual agreement or terminated by the City
on seven days notice. Compensation is set at $215,000 for the twelve -month period.
Mr. Lepo's start date will be November 6, 2006. This will provide some overlap with Ms.
Temple's tenure so that she may serve as a resource to him in the first few months. My
intention is to turn the day - today operations and restructuring of the Planning
Department over to Mr. Lepo as soon as possible and to use Ms. Temple's remaining
time with the City to capture her extensive knowledge in areas such as Zoning Code
interpretations and parts of the Code that need updating, clarification, consistency, etc., •
especially in light of new General Plan provisions.
Funding Availability:
Compensation for the Interim Planning Director will be $143,333 for the remainder of
the fiscal year. Salary savings from the Planning Director position for the five months of
February through June 2007 will be $72,825. Transferring these salary savings and
$70,508 from the General Fund unappropriated reserve to Planning Professional and
Technical Services (2710 -8080) will provide sufficient funds.
Submitted by:
Homer L. Blud
City Manager
Attachment: Professional Services Agreement •
PROFESSIONAL SERVICES AGREEMENT WITH
HOGLE - IRELAND, INC. FOR INTERIM PLANNING DIRECTOR
•
THIS AGREEMENT is made and entered into as of this _ day of October, 2006, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
Hogle- Ireland, Inc. a California Corporation whose address is 2860 Michelle Drive,
Suite 100, Irvine, California 92606 ( "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 desires to engage Consultant to serve as Interim Planning Director
( "Project ").
C. Consultant employs management personnel that possess the skill, experience;
ability, background, certification and knowledge to provide the services described
in this Agreement.
• D. The principal member of Consultant who will provide the services of an Interim
Planning Director shall be David A. Lepo.
E. City has solicited and received a proposal from Consultant, 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 ter} of this Agreement shall commence on the above written date, and shall
terminate on the 31 st day of October, 2007, unless extended by mutual consent of
the parties or 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 the services provided by David Lepo on a fixed fee •
basis in accordance with the provisions of this Section. Consultants
compensation for all work performed in accordance with this Agreement,
excluding all reimbursable items, shall not exceed Two Hundred Fifteen
Thousand Dollars and no /100 ($215,000) without prior written authorization
from City_
4.1 Consultant shall submit monthly invoices to City for the amount of
Seventeen Thousand, Nine Hundred Seventeen Dollars ($17,917.00) and
any reimbursable expenditures, with a description of reimbursable items.
As consideration for this monthly amount, David Lepo shall provide the
City with a minimum of eighty (80) hours per two -week City pay period,
and shall be entitled to all City holidays as well as personal leave as
provided by Consultant, not to exceed twenty (20) days for the term of this
agreement. City shall pay Consultant no later than thirty (30) days after
approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. Costs for travel required for City business in the amount and •
manner of reimbursement provided by City policy.
B. 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.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work"
means any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Scope of
Services and which the parties did not reasonably anticipate would be
necessary at the execution of this Agreement. Compensation for any
authorized Extra Work shall be determined between City and Consultant at
the time the Extra Work is authorized.
5. DESIGNATED EMPLOYEE
Consultant has designated David Lepo to be the Interim Planning Director; who
shall coordinate all phases of the Project. Consultant shall not remove David
Lepo or reassign the services to be provided by this agreement without the prior
written consent of City. •
6. ADMINISTRATION
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This Agreement will be administered by the City Manager's Office. Sharon
Wood 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.
7. 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 office space and supplies, and professional and clerical support
staff.
8. STANDARD OF CARE
8.1 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 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.
8.2 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.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, 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 breach of the terms and conditions of this Agreement, any work performed
or services provided under this Agreement (including, without limitation, defects
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in workmanship or materials and /or design defects [if the design originated with'
Consultant]) or Consultant's presence or activities conducted on the Project
(including the negligent and /or willful acts, errors and /or omissions of Consultant, •
its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require .
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole 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 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. 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.
11. 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.
12. 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 order to ensure the Project proceeds• in a manner consistent with City goals
and policies.
13. PROGRESS
David Lepo will be responsible for keeping the Project Administrator 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.
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14. 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 Coveraqe. 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 subcontractor's
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.
ii. 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
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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. ,
18. 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 City authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all 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.
20. 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 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.
21. 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.
22. 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 what
Y • •
would have resulted if there were not errors or omissions in the work
• accomplished by Consultant, the additional design, construction andlor
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
•
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
David Lepo, acting as Interim Planning Director, will 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.
25. 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: Sharon Wood
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3222
Fax: 949 - 644 -3020
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
E
26.
27.
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Attention: Paul Ireland
Hogle- Ireland, Inc.
2860 Michelle Drive
Suite 100
Irvine, CA 92606
Phone: 949 -553 -1427
Fax: 949 - 553 -0935
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 parry 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.
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.
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 o r
of the same or a different character.
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condition contained herein, whether
•
•
•
28. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
Robin Clauson, .
City Attorney
for the City of Newport Beach
ATTEST:
0
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
A
Mayor
for the City of Newport Beach
CONSULTANT:
Corporate Office
Title:
Print Name:
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Corporate Officer
Print Name:
Attachment: Exhibit A — Scope of Services
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txmign H
Date: October 5, 2006
To: Sharon Wood
Assistant City manager
City of Newport Beach
From: David Lepo
Principal
Hogle- Ireland, Inc.
Subject: Planning Department
Transition Responsibilities
Irvine
Riverside
Palm Springs
MEMO
• Based on our recent discussion, the following reflects my understanding of the
responsibilities that I will assume as Interim Planning Director.
Administer day -to -day operations of the Planning Department;
After transition, assume Planning Commission primary staff support role;
Work with individual staff members to set goals, evaluate strengths and
weaknesses, provide direction to capitalize on strengths and improve on
weaknesses, and assign responsibilities appropriate to the knowledge and expertise
of each staff member;
Define and communicate to all staff department objectives and work program for
ensuing 12 -month period;
Assess the efficacy of the current Department organization and recommend changes
as appropriate;
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Improve communications and build relationships between Planning Department and
other City Departments;
Prepare annual Planning Department budget;
Identify procedures for efficient tracking of pending applications, time spent on
review, and applicant billing; and for establishing measures of work load, work
output, and evaluating utilization of staff time; and for managing and archiving
Planning Department public records
Periodically review work program and progress with City Manager's Office;
Other responsibilities assigned by City Manager or Assistant City Manager.
•
•
�y of Newport Bead, NO. BA- 07BA -021
BUDGET AMENDMENT
2006 -07 AMOUNT: 5143,333.00
ECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
X Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
X Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To transfer and increase expenditure appropriations for a professional services agreement for an Interim Planning
Director.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account Description
010 3605 General Fund - Fund Balance
SENUE ESTIMATES (3601)
Fund/Division Account Description
EXPENDITURE APPROPRIATIONS (3603)
Description
Division
Number 2710 Planning -Administration
Account
Number 7000 Salaries - Miscellaneous
Division
Number 2710 Planning - Administration
Account
Number 8080 Services - Professional & Technical
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number `
Signed:
,O
S�d:
Finlancial Approval: Administrative ices Director
/C,
Acitninistrative Approval( . City Manager
Signed:
City Council Approval: City Clerk
Amount
Debit Credit
$70,508.00 *
$72,825.00
$143,333.00
io -moo -y6
Date
I'D
a
Date