HomeMy WebLinkAboutC-3997 - PSA for Planning, Consulting and Advocacy Services for the Local Coastal Program (LCP)AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH D.B. NEISH, INC. FOR
PLANNING, CONSULTING AND ADVOCACY SERVICES FOR
THE LOCAL COASTAL PROGRAM
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 10th day of December , 2008, by and between CITY OF
NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and D.
B. NEISH, INC., a California Corporation, whose address is 101 Columbia, Suite 185,
Aliso Viejo, CA 92656, (hereinafter referred to as "Consultant'), is made with
reference to the following:
RECITALS:
A. On December 10, 2007, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT ", for planning,
consulting and advocacy services for the Local Coastal Program, hereinafter
referred to as "PROJECT ".
B. CITY desires to enter into this AMENDMENT NO. 1 to reflect to extend the term
of the AGREEMENT to May 30, 2009.
C. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1, as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. The term of the AGREEMENT shall be extended to May 30, 2009.
2. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
/"' �..--
Ci y Attorney
for the City of Newport Beach
ATTEST:
By:9
Leilani Brown,
City ClerkNp
aU
f
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
I�pDi
for the Cit of Newport Beach
CONSULTA T:
By:
(Corporate fficer)
Title: A31,
Print Name: QS
By:
(Financial Officer)
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Title: �lCtcsur,�v-
Print Name:
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DtC 0 0 20H
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. I I
December 9—,2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: James Campbell, Senior Planner
Planning Department
(949) 644-3210 lcampbellOcity.newoort- beach.ca.us
SUBJECT: Extension of Professional Services Agreement for Consulting, Planning
and Advocacy Services for the Local Coastal Program (LCP).
ISSUE
Should the City Council extend the professional services agreement with D.B. Neish for
an additional 5 months?
RECOMMENDATIONS
Authorize the City Manager to execute an amendment to the Professional Services
Agreement with D.B. Neish, Inc. extending the term to May 30, 2009.
DISCUSSION
In December of 2007, the City entered into a Professional Services Agreement with Dave
Neish for consulting and advocacy services for the Local Coastal Program certification
effort. The term of the current agreement expires on December 10, 2008. The City's
pending application for an amendment of the Coastal Land Use Plan will be considered by
the Coastal Commission in either January or February of 2009. Continued services from
Mr. Neish are necessary to complete this stage of the LCP certification effort.
The scope of services and the fee schedule are not changing and are attached for
reference. Based upon the maximum billing rate of $10,000 per month and estimated
reimbursable expense averaging $1,500 per month, the total expenditure associated with
this extension may be $57,500.
Environmental Review ' The City Council's approval of this Agenda Item does not
require environmental review as it is not defined as a project and the authorization of
this PSA will not result in a physical change to the environment.
Public Notice This agenda item has been noticed according to the Brown Act (72
hours in advance of the public meeting at which the City Council considers the item).
PSA for consulting services D.B. Neish
December 9, 2008
Fundina Availability Account #2710 -8294 has an unallocated balance of $60,000
for fiscal year 2008 -2009.
Alternatives The City can choose not to continue the agreement.
Prepared by: Submitted by:
.hffies Senior tanner David l_epo, Pla ni Director
ATTACHMENTS
1. Amendment to Professional Services Agreement
2. Scope of Services and Fee Schedule
(7291100 -2ocg)
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No, 17
May 13, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: James Campbell, Senior Planner
Planning Department
(949) 644 -3210 Campbell Co)-city.newport- beach.ca.us
SUBJECT: Budget amendment for continuation of Professional Services Agreement
for consulting, planning and advocacy services for the Local Coastal
Program (LCP).
RECOMMENDATION
Approve a budget amendment increasing the expenditure appropriation of 2710 -8294
by $75,000 from the General Fund unappropriated fund balance.
DISCUSSION
On November 13, 2007, City Council approved a professional services agreement (PSA)
for D.B. Neish to provide consulting and advocacy services related to the City's efforts to
certify the Local Coastal Program. The tern of the agreement was 12 months and will
expire in December of 2008. When the PSA was approved, staff requested, and the City
Council approved, a budget amendment of $63,000 for the first six months of the
agreement. Staff requests a budget amendment of $75,000 from unallocated reserves to
continue this project through the end of this calendar year.
Environmental Review: City Council's approval of this Agenda Item does not require
environmental review as it is not defined as a project and the authorization of this
budget amendment will not result in a physical change to the environment.
Public Notice: This agenda item has been noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability- A budget amendment is necessary to increase the fund balance
in 2710 -8294 by $75,000.
Alternatives: The Council choose to budget this activity with next years budget.
Prepared by:
�W
James Campbell, Senior Planner
ATTACHMENT
Budget amendment form
Submitted by:
of Newport Beach NO. BA- 08BA -070
BUDGET AMENDMENT
2007 -08 AMOUNT: $75,000,00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
X Increase Expenditure Appropriations AND �X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
NX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from unappropriated General Fund fund balance to continue a professional services
agreement for consulting, planning and advocacy services for the Local Coastal Program (LCP).
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE Amount
Fund Account Description Debit Credit
010 3605 General Fund - Fund Balance $75,000.00 '
REVENUE ESTIMATES (3601)
Fund /Division Account Description
EXPENDITURE APPROPRIATIONS (3603)
Description
Division Number 2710 Planning - Administration
Account Number 8294 LCP Certification $75,000.00
Division Number
Account Number
Division Number
Account Number
Division Number
Account Number
' Automatrc System Entry.
Signed: ,57'42�1— dad
Financial Approval: Administrativ ervices Director Date
Signed:
Administrative Approv : City Manager Yale
Signed:
City Council Approval: City Clerk Date
PROFESSIONAL SERVICES AGREEMENT WITH
D.B. NEISH, INC. FOR PLANNING, CONSULTING AND
ADVOCACY SERVICES FOR THE LOCAL COASTAL PROGRAM
THIS AGREEMENT is made and entered into this 10th day of December, 2007, by and
between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City"),
and D. B. NEISH, INC., a California Corporation, whose address is 101 Columbia, Suite 185, Aliso
Viejo, CA 92656, (hereinafter refs ed to as " Comuftant"), 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 Califomia and the Charter of City.
B. City is processing or anticipates processing amendments to its certified Coastal Land Use
Plan (CLUP) and the City is preparing an implementation Plan for the CLOP (°project). City is
planning to lobby the California Coastal Commission to favorably consider the project.
C. City desires to engage Consultant to provide consulting services upon the terms and
conditions contained in this Agreement to advance the project.
D. Consultant possesses the skill, experience, ability, background, certification and knowledge to
provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project shall be David B. Neish, President
of D. B. Neish, Inc.
F. 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 terns and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. TERM
The tens of this Agreement shall commence on the above written date, and shall terminate on the 1&
day of December, 2008, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of Services attached hereto
as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the
Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and Consultant shall
perform services in a timely manner. The failure by Consultant to provide services in such a timely
manner may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond
Consultant's reasonable control. However, in the case of any such delay in the services to be
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provided for the Project, each party hereby agrees to provide notice to the other party so that all
delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance in writing to the
Project Administrator not later than ten (10) calendar days after the start of the condition that
purportedly causes a delay. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays that are beyond Consultants
control.
3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most
expedient and appropriate manner under the circumstances, by either telephone, fax, hard -
delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense rot- to-exceed basis in accordance
with the provisions of this Section and the Billing .Rates attached hereto as Exhibit B, both
incorporated herein by reference. Consultants compensation for all work performed in accordance
with this Agreement, including any subconsultant fees and excluding all reimbursable items and, shall
not exceed one hundred and thirty -eight thousand dollars and no1100 ($138,000.00) without
additional authorization from City. No billing rate charges shall be made during the term of this
Agreement without the prior written approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding
month. Consultants bills shall include the name of the person who performed the work, a
brief description of the services performed and/or the specific task in the Scope of Services to
which it relates, the date the services were performed, the number of hours spent on all work
billed on an hourly basis, and a description of any reimbursable expenditures. 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 deemed
necessary to carry out the scope of work approved in this Agreement, or specifically approved
in advance by City. Unless otherwise approved, such costs shall be limited and include
nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the services that
Consultant agrees to render pursuant to this Agreement, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved travel and associated expenses, reproduction charges, telephone and
postage costs. Travel and associated expenses include but are not limited to airfare,
hotel, rental car costs, mileage and parking.
C. Actual costs and/or other costs and/or payments specifically authorized in advance in
writing and incurred by Consultant in the performance of this Agreement.
For single reimbursable expenses in excess of $250 and/or total monthly reimbursable expenses
in excess of $1500, Consultant shall obtain written authorization from City prior to incurft the
costs.
Total reimbursable expenses shall riot exceed eighteen4housand dollars ($18,000).
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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 paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B.
& PROJECT MANAGER
Consultant has designated David B. Neish to be its project manager to provide the services under this
Agreement. The project manager and designated professional staff shall be available to City at all
reasonable times during the Agreement term. Consultant shall not remove or reassign the project
manager or designated staff or assign any new or replacement personnel without the prior written
consent of City.
Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned
to the performance of services upon written request of City. Consultant warrants that it will
continuously furnish the necessary personnel to provide services on a timely basis as contemplated
by this Agreement.
S. ADMINISTRATION
This Agreement will be administered by the Planning Department. David Lepo 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 in performing duties set forth in the Scope of
Services in Exhibit W.
7. CITY RESPONSIBILITY
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 in file at City. City will provide all such materials in a timely manner so as no to
cause delays in Consultant's work schedule.
B. Provide Gear and timely direction or guidance to Consultant regarding management of the
Project
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 or shall obtain all licenses, permits,
qualifications, insurance and approvals of whatsoever nature that are legally required of
Consultant to practice its profession. Consultant further represents and warrants to City that
Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the
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term of this Agreement, any and all licenses, permits, insurance and other approvals that are
legally required of Consultant to practice its profession. Consultant shall maintain a City of
Newport Beads business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages
or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or ads of
God, or the failure of City to furnish timely information or to approve or disapprove
Consultant's work promptly, or delay or faulty performance by City, 'contractors, or
governmental agencies.
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 or Consultant's presence or
activities conducted on the Project.
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.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis aril Consultant is not
an agent or employee of City. The manner and means of conducting the work are under the control
of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed
terns of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees of City.
Consultant shall have the responsibility for and control over the means of performing the work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of the
performance or to exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
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 wok to be performed. City
agrees to cooperate with the Consultant on the Project.
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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 planning staff
services proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized
designee informed on a regular basis regarding the status and progress of planning staff services,
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.
A. Certiffcales 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's 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 Bests Key Rating Guide, unless
Otherwise approved by the City's Risk Manager.
D. Coverage Requirements.
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.
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 Agreemenrt, 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.
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E. Endorsements. Each general liability and automobile liability insurance policy shall be
endorsed with the following specific language:
i. 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 sell -
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.
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 stall 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,
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duties, obligations of the Consultant under this Agreement will be permitted only with the express
written consent of City. Consultant shall no subcontract any portion of the work to be performed under
this Agreement without prior written auttwr¢ation 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 Consultants 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 Citys 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. 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 dearly
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 shat 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.
20. WITHHOLDINGS
City may withheld 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 shat not discontinue work as a result of such
withholding. Consultant shall have an immediate right to appeal to the City Manager or histher
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.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project
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22. CONFLICTS OF INTEREST
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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 foresesabfy 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.
23. NOTICES
All notices, demands, requests or approvals to be given under the terms of this Agreement shall be
given in writing, to City by Consultant 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: David Lepo, Planning Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949- 6443200
Fax: 9494M4 -3229
All notices, demands, requests or approvals from CITY to Consultant shall be addressed to
Consultant at:
Attn: David. B. Neish, President
D. B. Neish, INC.
101 Columbia, Suite 165, Aliso Viejo, CA 92656
Phone: (949) 600 -8295
Fax: (949) 600 -8296
24. 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, the non-
defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice
thereof.
Notwithstanding the above provisions, both parties shall have the right, at its sole discretion and
without cause, of terminating this Agreement at any time by giving thirty (30) 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
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deliver to City all reports, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
26. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and
requirements of all govemmental 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.
26. WAIVER
A waiver by either party of any breach, of any tern, 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.
27. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature whatsoever
between the parties hereto, and all prekminary 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.
28. 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 govem.
29. 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.
30. 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.
31. 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.
32. 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.
0
33. 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:
By:
o ✓ City Attorney
for the City of Newport Beach
ATTEST:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: r
City Manager
for the City of Newport Beach
CONSULTANT:
By: 'd 0, 'J -j
David B. Neish, President
D.B. Neish, Inc.
By: Jog. X415 � 1ti 4 --
Title:
-.Title: 1000-e 51V.�e"T
(Financial Officer) , //
Print Name: ,��ay;d kle 5�
Attachments: Exhibit A - Scope of Services
Exhibit B - Billing Rates
10
Exhibit A
Scope of Seivices
0
Provide consulting services to the City regarding the City's Local Coastal Program (LCP)
certification project including assessing the best courses of action with the pending City
application (NPM- MAJ -1 -07) before the California Coastal Commission (CCC). This
assessment must take into account anticipated future applications including planned
amendments to the Coastal Land Use Plan (CLUP) and the anticipated CLUP
Implementation Plan.
Review existing certified CLUP, General Plan, relevant zoning documents and assess the
adequacy City's pending application (NPM- MAJ -1 -07).
Participate as a member of the City LCP project team in the development of potentially
effective strategies to gain approval of the City's LCP certification project.
Participation in weekly project coordination meetings and/or conference calls with City staff
and /or elected /appointed officials and site visits in and around the City as directed by the
City.
Coordinate and assist City staff in the preparation of all necessary documents, exhibits or
analysis in support of the City LCP certification effort. Assist in the preparation of any
supplemental materials requested by the CCC or their staff.
Under direction and supervision of the City, act as a liaison between the California Coastal
Commission and their staff to develop LCP policies, regulations, conditions or terms deemed
acceptable to the City.
Under direction and supervision of the City, assist in scheduling and participate in meetings
between the City LCP project team members and/or elecled/appointed officials with CCC
Staff and/or individual Coastal Commissioners throughout LCP certification process.
General advocacy on behalf of the City's LCP certification effort with CCC Staff and Coastal
Commissioners.
As deemed necessary by D.B. Neish, Inc and the City, coordinate efforts to seek external
political support (if possible) for the expeditious review and processing of NPJ- MAJ -1 -07 and
related City LCP certification efforts.
Prepare a presentation for and represent the City at the hearing scheduled by the CCC on
NPJ- MAJ -1 -07.
11
Exhibit B
Fee Schedule
The City shall pay D.B. Neish, Inc. $10,000 per month with a reduced fee (based upon the
amount of work performed during the month) for those months where there is limited work
required or perfomed in accordance with the Scope of Work.
12
r +.. 3 �;
! ! C-3/R1
Cog` l00,d - v )
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. S20
November 13, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: James Campbell, Senior Planner
Planning Department
(949) 644 -3210 jcampbellCcDcity .newport- beach.ca.us
SUBJECT: Professional Services Agreement for consulting, planning and advocacy
services for the Local Coastal Program (LCP).
RECOMMENDATIONS
Authorize the City Manager to execute a Professional Services Agreement with D.B.
Neish, Inc. for consulting and advocacy services related to certification of the City's
Local Coastal Program.
2. Approve a budget amendment increasing the expenditure appropriation of 2710-
8294 by $138,000 from the General Fund unappropriated fund balance.
The City is pursuing approval of an amendment to the Coastal Land Use Plan (CLUP) of
the Local Coastal Program with the California Coastal Commission (CCC) for the land use
changes authorized by the 2006 General Plan Update. Additionally, the City is considering
possible amendments of existing CLUP policies related to coastal bluff and /or coastal
canyon development. Lastly, Staff is preparing the Implementation Plan for the CLUP that
swill eventually be forwarded to the CCC for review and approval after the City approves it.
Staff proposes that the City retain a professional consultant/advocate with experience in
working with members of the California Coastal Commission to assist in obtaining
approval of the City's proposed CLUP amendments. The consultantladvocate will also
provide assistance in developing the overall amendment processing strategy including
how best to proceed with the upcoming CLUP Implementation Plan. The
consultant/advocate will also assist staff in preparation and processing of the necessary
applications. A scope of work is attached that outlines the activities the
consultant/advocate will perform. The term of the proposed agreement is 12 months as it
is anticipated that tasks presently anticipated will take that long.
Staff interviewed four consultants and three subsequently submitted proposals (McCabe &
Company, D.B. Neish, Inc., and Schmitz & Associates). Based upon the firm's experience,
• LCP Consultant
November 13, 2007
Page 2
reputation and contacts with Coastal Commissioners and their staff, Staff believes that
D.B. Neish, Inc. is qualified and is the firm that can fulfill the City's requirements.
The nature of this project is such that it is not possible to project monthly costs because
the number of hours of consultantladvocate services required to attain certification of the
City's Local Coastal Program will fluctuate. D.B. Neish will provide the services that the
City requires within the scope of work attached for a set monthly fee of $10,000. This fee
does not include reimbursable expenditures. There will be some months when the number
of hours of consultant/advocate services required will be minimal and others when, for
example, document submittals by the City and consequent Coastal Commission staff
review will require significant consultanttadvocate work effort. Accordingly, the maximum
expenditure, not including reimbursable expenditures, would be $120,000 (12 months x
$10,000 per month).
Estimating reimbursable expenditures is not possible due to the nature of the services to
be performed. The consultant may need to travel extensively to meet with Coastal
Commissioners or other officials as authorized by the City. The Agreement requires pre -
authorization of any single expenditure over $250 or for total monthly expenditures that
would exceed $1,500. For budgeting purposes, staff multiplied the 12 month term of the
agreement by the $1500 monthly pre - authorization limit to arrive at a total of $18,000
potential expenditure.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review as it is not defined as a project and the authorization of
this PSA will not result in a physical change to the environment.
Public Notice: This agenda item has been noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability: The fiscal '07 -'08 budget includes $75,000 for Local Coastal
Program certification. A budget amendment is necessary to increase the fund balance
in 2710 -8294 by $63,000.
Alternatives: The City can choose not to hire a consultant or the City Council can direct
staff to consider other qualified consultants.
Prepared by:
U
ames ampbell, Se ni r Planner
ATTACHMENTS
Scope of Services and Fee Schedule
Submitted by:
D. . r! g Director
U
2. Budget amendment form
0
LCP Consultant
November 13, 2007
Page 3
• Attachment A •
Scope of Services
Provide consulting services to the City regarding the City's Local Coastal Program
(LCP) certification project including assessing the best course of action with the pending
City application (NPM - MAJ -1 -07) before the California Coastal Commission (CCC). This
assessment must take into account anticipated future applications including planned
amendments to the Coastal Land Use Plan (CLUP) and the anticipated CLUP
Implementation Plan.
Review existing certified CLUP, General Plan, relevant zoning documents and assess
the adequacy of the City's pending application (NPM - MAJ- 1 -07).
Participate as a member of the City LCP project team in the development of effective
strategies to gain approval of the City's LCP certification project.
Participation in weekly project coordination meetings and /or conference calls with City
staff and /or elected /appointed officials and site visits in and around the City as directed
by the City.
Coordinate and assist City staff in the preparation of all necessary documents, exhibits
or analysis in support of the City LCP certification effort. Assist in the preparation of any
supplemental materials requested by the CCC or their Staff.
Under direction and supervision of the City, act as a liaison between the California
Coastal Commission and their staff and the City in developing LCP policies, regulations,
conditions or terms deemed acceptable to the City.
Under direction and supervision of the City, assist in scheduling and participate in
meetings between the City LCP project team members and /or elected /appointed
officials with CCC Staff and /or individual Coastal Commissioners throughout the LCP
certification process.
General advocacy on behalf of the City's LCP certification effort with CCC Staff and
Coastal Commissioners.
As deemed necessary by D.B. Neish, Inc. and the City, coordinate efforts to seek
external political support (if deemed appropriate) for the expeditious review and
processing of NPJ- MAJ -1 -07 and related City LCP certification efforts.
Prepare a presentation for and represent the City at the hearing scheduled by the CCC
on NPJ - MAJ -1 -07.
4
0
Fee Schedule
0
The City shall pay D.B. Neish, Inc. $10,000 per month with a negotiated reduced fee
during months where there is limited work for services performed in accordance with the
Scope of Work.
City shall reimburse Consultant only for those costs or expenses specifically deemed
necessary to carry out the scope of work approved in this Agreement, or specifically
approved in advance by City. Unless otherwise approved, such costs shall be limited
and include nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the services that
Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
B. Approved travel and associated expenses, reproduction charges, telephone and
postage costs. Travel and associated expenses include but are not limited to
airfare, hotel, rental car costs, mileage and parking.
C. Actual costs and /or other costs and/or payments specifically authorized in
advance in writing and incurred by Consultant in the performance of this
Agreement.
For single reimbursable expenses in excess of $250 and /or total monthly reimbursable
expenses in excess of $1500, Consultant shall obtain written authorization from City
prior to incurring the costs. Total reimbursable expenses shall not exceed eighteen -
thousand dollars ($18,000).
WY of Newport Bea(* NO. BA- 08BA -025
BUDGET AMENDMENT
2007 -08 AMOUNT: $13a,000.00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
X Increase Expenditure Appropriations AND Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
NX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations for the Professional Services Agreement for consulting, planning, and advocacy
services for the Local Coastal Program.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
010 3605
REVENUE ESTIMATES (3601)
Fund/Division Account
EXPENDITUREAPPROPRIATIONS (3603)
Division
Account
Division
Account
Division
Account
Division
Account
Division
Account
Signed:
Signed:
Signed:
Number
Number
Number
Number
Number
Number
Number
Number
Number
Number
Description
General Fund - Fund Balance
Description
Description
2710 Planning - Administration
8284 LCP Certification
Financial Approval: Administrative Services
Administrative Approval: City Manager
City Council Approval: City Clerk
Amount
Debit Credit
$138,000.00
O
Date
Date
Date
ijty of Newport Bea
"RECEIVE AFTER AGENDA d
PRINTED." So2D 3-D? BUDGET AMENDMENT
2007 -08
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations AND
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
HX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO. BA- 08BA -025
AMOUNT: $s3,000.00
Increase in Budgetary Fund Balance
X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
To increase expenditure appropriations for the Professional Services Agreement for consulting planning, and advocacy
services for the Local Coastal Program.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account Description
010 3605 General Fund - Fund Balance
REVENUE ESTIMATES (3601)
Fund /Division Account Description
EXPENDITURE APPROPRIATIONS (3603)
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
Signed
Signed:
Description
2710 Planning - Administration
8294 LCP Certification
Amount
Debit Credit
$63,000.00
Automatic
$63,000.00
4�- - /.-
Approval: Administrative Se ices Director Date
� G� 0 7
ative Approval: /City Knager Date
City Council Approval: City Clerk
Date