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HomeMy WebLinkAboutC-3998 - PSA for Data Collection and Pre-CRMP Organization• C-31gB PROFESSIONAL SERVICES AGREEMENT with the NEWPORT BAY NATURALISTS AND FRIENDS FOR DATA COLLECTION AND PRE -CRMP ORGANIZATION THIS AGREEMENT is made and entered into as of this 14th day of November, 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and THE NEWPORT BAY NATURALISTS AND FRIENDS a 501(c)(3) not - for - profit entity located in Newport Beach, California ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to cooperatively prepare the Comprehensive Resource Management Plan ( "CRMP ") to holistically plan for the resource and recreation needs of the Upper Newport Bay. C. City desires to engage Consultant to develop, gather, and summarize all relevant data, including studies, reports, and related information in preparation for the CRMP and to convene the stakeholders groups that will participate in the CRMP ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project, shall be Roger Mallett. 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 terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 14th day of November, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Work at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and 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 provided for the Project, each party hereby agrees to provide notice to the other parry 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 Consultant's 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, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Twenty Thousand Dollars and no1100 ($120,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 City and consultant agree to the following payment schedule: i. 10% of the lump sum total upon authorization to proceed with the work. ii. An additional 30% of the lump sum total upon submittal of initial project deliverables. iii. An additional 25% of the lump sum total upon demonstration that final project deliverables are roughly 50% complete. iv. An additional 25% of the lump sum total upon submittal of final project deliverables. v. The remaining 10% upon acceptance of the work by the City. 2 0 0 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. 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. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated ROGER MALLETE to be its Project Manager, with assistance from IRWIN HAYDOCK. Consultant shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office and the Public Works Department. Dave Kiff and Bob Stein 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 usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 3 0 0 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 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 Beach 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 acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 16. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or 0 E interest in the work to be performed Consultant on the Project. 11. CITY POLICY P City agrees to cooperate with the 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. 12. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 13. INSURANCE 13.1 Without limiting Consultant's indemnification of City, Consultant shall shall maintain at its own expense during the term of this Agreement, a policy or policies of insurance of the type and amounts described below and in a form and manner satisfactory to the City's Risk Manager: i. 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. ii. Automobile insurance covering bodily injury and property damage for all activities of NBNF staff or volunteers arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million. dollars ($1,000,000) combined single limit for each occurrence. iii. Workers' Compensation Insurance and Employer's Liability Insurance for Consutant's employees in accordance with the laws of the State of California. 13.2 City shall be named as an Additional Insured by Consultant. Prior to beginning work on this Project, Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. 13.3 The insurer(s) shall be instructed to provide the City with notification of cancellation or non - renewal of any of the above policies at least thirty (30) calendar days prior to such change. 5 0 0 14. 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. 15. 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. 16. 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. 17. 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 two (2) 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 two (2) years from the date of final payment to Consultant under this Agreement. 18. 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. 19. 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 borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 20. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 21. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, 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 rA 0 0 harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 22. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, 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: Dave Kiff, Assistant City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3002 Fax: 949 -644 -3020 E -mail: dkiff @city.newport- beach.ca.us All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Roger Mallett, Executive Director Newport Bay Naturalists and Friends Post Office Box 10804 Newport Beach, California 92658 Phone: 949 - 640 -6746 Fax: 949 -640 -1742 E -mail: RNMALLETT @aol.com 23. 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, 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 3 0 0 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. SEVERABILITY a] 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. 31. 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. 32. 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: fc W 1-9 CITY OF NEWPORT BEACH, A Munjopal dation City Clerk Attachments Exhibit A — Scope of Work 10 Steve Rosansky, May r for the City of Newpo �ach ONSULTANT: y:_ Roger Mallett, Executive irector Newport Bay Naturalists and Friends EXHIBIT A Scope of Work Consultant shall diligently perform the following tasks: 1.1 Work with knowledgeable personnel to identify government agencies, non - government organizations, colleges, private companies, volunteer groups and individuals that have been, are or plan to be engaged in research, studies, information gathering, data collection, mapping, and related activities in or around UNB. 1.2 Devise a suitable matrix to appropriately identify the entities listed in 1.1 above to allow the entities and their data to be suitably catalogued. 1.3 Compile in one location a catalogue of information about the Upper Bay, including but not limited to environmental documents (EIRs, MNDs, Federal EIS'), Basin Plan and TMDL reports, research studies, management plans, watershed plans, and more. The data subject matter sought should be open - ended, ranging from geology to water quality to mammal sightings to recreational use. Data gathered shall include maps, aerial photos and GIS information. 1A Concurrently with Items 1.1 and 1.2, establish a Peer Review Panel made up of acknowledged experts in all scientific fields necessary to review and critique the studies and reports that will be cataloged within Item 1.3. Study authors may be peer reviewers. 1.5 Devise protocols to review the data collected that will ensure that the reviews address objective issues such as completeness, level of detail, breadth of scope, current validity, and applicability. 1.6 Write synopses of the data gathered in Item 1.3. 1.7 Rank each study, report, or plan as to its level of signifiance as it relates to developing the CRMP. 1.8 Conduct a "gap analysis" to identify what information, data, or research is missing that will be needed for the CRMP stakeholders to complete the CRMP and to make meaningful decisions on management priorities. 1.9 Establish a system for online access to the data gathered in Item 1.3 and its summaries and rankings in Items 1.6 to 1.8. Integrate this electronic system with the City's and NBNF's website. Create the procedures, etc necessary to perpetuate the online system and maintain integrity of data. 1.10 On behalf of the City facilitate, convene, and document initial meetings to engage primary stakeholders (including but not limited to the County, the City, the Regional Water Quality Control Board, the California Department of Fish and Game, the US Fish and Wildlife Service, the National Marine Fisheries Service, the California Coastal Commission, the State Coastal Conservancy, and educational groups that use the Upper Bay for programs, including but not 11 0 0 limited to the Orange County Department of Education, Orange County CoastKeeper, Surfrider, and the Environmental Nature Center) to establish a mutually - agreeable set of long -term objectives for the CRMP and to decide how best to structure the CRMP to achieve those objectives. 12 • • c -mq8 (3gl1oc)- 2-M?) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 522 November 13, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, Assistant City Manager 949 -644 -3002, dkiff @city.newport- beach.ca.us SUBJECT: Agreement with the Newport Bay Naturalists and Friends (NBNF) to Begin Work on the Comprehensive Resource Management Plan (CRMP) for Upper Newport Bay ISSUE: Should the City Council enter into an Agreement with the Newport Bay Naturalists and Friends (NBNF) to complete $120,000 of work relating to the Comprehensive Resource Management Plan (CRMP) for Upper Newport Bay? RECOMMENDATION: Authorize the Mayor to execute a standard Professional Services Agreement (PSA) approved by the City Attorney as to form with the Newport Bay Naturalists and Friends (NBNF) to begin data gathering and data cataloguing associated with the Comprehensive Resource Management Plan (CRMP) for Upper Newport Bay. BACKGROUND: In December 2003, the City Council formed the Ad Hoc Sphere Issues Committee to talk to the County of Orange over what Council referred to as Spheres Issues. This meant an examination of projects and programs that the County of Orange provided within or adjacent to the City of Newport Beach's "sphere of influence" that could be provided by the City. The Council asked "if we were starting from scratch, what entity would be providing these services today absent existing boundaries ?" The Council and the County entered into a Cooperative Agreement in October 2006 that addressed three issues: • John Wayne Airport & overall Airport Area Compatibility • The Santa Ana Heights Redevelopment (RDA) Project Area • Services and programs in Upper and Lower Newport Bay This Agenda Item addresses half of the last item — the services and programs in Upper Newport Bay. • Agreetnt for CRMP Data Gathering November 13, 2007 Page 2 About the Comprehensive Resource Management Plan The northwestern land portion of Upper Newport Bay (called the Upper Newport Bay Nature Preserve) has historically been owned by the County and its Harbors Beaches, and Parks Division (now called "OC Parks "). The waters and some tidelands of the Upper Newport Bay are owned by the California Department of Fish and Game ( "DF &G" — these lands are called the Upper Newport Bay Ecological Reserve). Both segments of the Upper Newport Bay have been managed with voluntary coordination and cooperation between OC Parks, DF &G, and the City. Some have asserted that neither OC Parks nor DF &G have the financial resources to protect and preserve the Upper Bay in the manner it deserves. The City asserts that OC Parks and DF &G have sincere and complete stewardship goals for the Bay, but lack of funding means that some Bay resources deteriorate. City staff and members of the NBNF believe that the entire Upper Bay properties deserve a resource management plan that treats the Upper Bay as if these jurisdictional boundaries did not exist — a "holistic" approach to Bay management. Through the Cooperative Agreement, the City and County committed to develop a Comprehensive Resource Management Plan (CRMP) for the Upper Bay. The CRMP would identify goals, programs, restoration and education projects, funding and good management models. The City would pay 80% of the cost of the CRMP, which was estimated to be up to $375,000 in October 2006. The Cooperative Agreement stated that the CRMP could not start until the County Board of Supervisors strategic planning effort for the Orange County HBP Division was complete (this planning effort was completed in September 2007). More specifically, the CRMP would address: • Habitat and endangered- and/or listed- species protection; • Opportunities (in ranked priority) for restoration projects, with estimated costs for the restoration projects and expected ongoing maintenance costs once restored; • Educational and interpretive stations around the Upper Bay, including coordination of the work of OC Parks at the Peter and Mary Muth Interpretive Center, the Orange County Department of Education's Inside the Outdoors program and DFG at the Back Bay Science Center; • Recreation and access (bike trails, horse trails, walking trails, boardwalks, overlooks, gathering areas for interpretive discussions, viewing blinds, and more); • Management issues, including staffing needs to ensure that the Upper Bay's projects and programs are sustained; • Water quality protective measures, including sediment controls, toxic pollutant controls, and BMPs for pest management and fertilization. • "Edge" issues — ways to protect the Upper Bay's habitat and its water quality by working in or educating in upstream areas adjacent to the Preserve and Reserve (including measures to be taken limiting runoff, planting preferences for native and non - invasive species, etc). • Agreement for CRMP Data Gathering November 13, 2007 Page 3 The attached draft Scope of Work between NBNF and the City describes what work the NBNF would complete for the City. The primary purpose of their contract is to search through libraries, warehouses, offices, and the Internet to gather and catalogue as many of the dozens (possibly hundreds) of studies and reports (including the Bay's TMDL reports, CEQA reports and Federal EIS documents) done on the Upper Bay from the 1950s and 1960s to today. A secondary purpose is to begin convening the stakeholder group(s) that will eventually participate in the development of the CRMP itself. With the data in hand and catalogued — and the stakeholders already convened — the CRMP itself may be fairly easy and inexpensive to develop. Lead personnel from NBNF on this effort will be Roger Mallett and Irwin Haydock. WHAT'S NEXT: After the data collection and summary phase, the next step would be to either hire a consultant firm or continue to work with NBNF (or a combination of the two) to develop the actual CRMP. The County of Orange, a 20% funding partner to the CRMP, will play a role in that decision, as will the California Department of Fish and Game. This agenda item does not bind the City either to continue with NBNF or to change course — the NBNF contract would end as the CRMP starts. FUNDING: This agenda item proposes allocating $120,000 to NBNF for this work. This amount is included in the City's FY 2007 -08 Capital Improvement Program ( #7014- C5002017). The estimated cost to the City for the CRMP was $300,000 in October 2006 when the Council considered the Cooperative Agreement on Spheres Issues. That amount equals our 80% obligation of the $375,000 total estimated cost. No funds other than this $120,000 are proposed to be spent at this time — it is still reasonable to assume that the development of the final CRMP will come in at $255,000 in total cost to both the County and City, making the October 2006 estimate of $375,000 appropriate. For your information, when the City issued an RFP to do some early CRMP work three years ago, the leading proposer suggested a $500,000 final price tag for the work, including a less extensive data gathering phase that was about $120,000.00. Submitted and Prepared by: ` v Dave Kiff Assistant City Manager Attachments: Draft City -NBNF Scope of Work 0 0 PROFESSIONAL SERVICES AGREEMENT with the NEWPORT BAY NATURALISTS AND FRIENDS FOR DATA COLLECTION AND PRE -CRMP ORGANIZATION THIS AGREEMENT is made and entered into as of this 10 day of November, 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and THE NEWPORT BAY NATURALISTS AND FRIENDS a 501(c)(3) not - for - profit entity located in Newport Beach, California ("Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to cooperatively prepare the Comprehensive Resource Management Plan ( "CRMP ") to holistically plan for the resource and recreation needs of the Upper Newport Bay. C. City desires to engage Consultant to develop, gather, and summarize all relevant data, including studies, reports, and related information in preparation for the CRMP and to convene the stakeholders groups that will participate in the CRMP ('Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project, shall be Roger Mallett. 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 terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 14th day of November, 2009, unless terminated earlier as set forth herein. 0 0 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Work at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and 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 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 Consultant's 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, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Twenty Thousand Dollars and no /100 ($120,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 City and consultant agree to the following payment schedule: i. 10% of the lump sum total upon authorization to proceed with the work. ii. An additional 30% of the lump sum total upon submittal of initial project deliverables. iii. An additional 25% of the lump sum total upon demonstration that final project deliverables are roughly 50% complete. iv. An additional 25% of the lump sum total upon submittal of final project deliverables. v. The remaining 10% upon acceptance of the work by the City. 2 0 0 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. 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. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated ROGER MALLETE to be its Project Manager, with assistance from IRWIN HAYDOCK. Consultant shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office and the Public Works Department. Dave Kiff and Bob Stein 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 usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 3 0 8. STANDARD OF CARE P 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 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 Beach 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 acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies.. 9. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 10. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or N 0 0 interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 11. 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. 12. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 13. INSURANCE 13.1 Without limiting Consultant's indemnification of City, Consultant shall shall maintain at its own expense during the term of this Agreement, a policy or policies of insurance of the type and amounts described below and in a form and manner satisfactory to the City's Risk Manager: i. 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. ii. Automobile insurance covering bodily injury and property damage for all activities of NBNF staff or volunteers arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iii. Workers' Compensation Insurance and Employer's Liability Insurance for Consutant's employees in accordance with the laws of the State of California. 13.2 City shall be named as an Additional Insured by Consultant. Prior to beginning work on this Project, Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. 13.3 The insurer(s) shall be instructed to provide the City with notification of cancellation or non - renewal of any of the above policies at. least thirty (30) calendar days prior to such change. 5 0 9 14. 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. 15. 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. 16. 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. 17. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and A 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 two (2) 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 two (2) years from the date of final payment to Consultant under this Agreement. 18. 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. 19. 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 borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 20. CITY S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 21. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, 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 7 • • harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 22. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, 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: Dave Kiff, Assistant City Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3002 Fax: 949 - 644 -3020 E -mail: dkiff @city.newport- beach.ca.us All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Roger Mallett, Executive Director Newport Bay Naturalists and Friends Post Office Box 10804 Newport Beach, California 92658 Phone: 949 - 640 -6746 Fax: 949 -640 -1742 E -mail: RNMALLETT @aol.com 23. 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, 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 H 0 0 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. 24. 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. 25: 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. SEVERABILITY • 11 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. 31. 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. 32. 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: City Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation By: Steve Rosansky, Mayor for the City of Newport Beach CONSULTANT: By: By:, LaVonne Harkless, City Clerk Attachments: Exhibit A — Scope of Work 10 Roger Mallett, Executive Director Newport Bay Naturalists and Friends EXHIBIT A Scope of Work Consultant shall diligently perform the following tasks: 1.1 Work with knowledgeable personnel to identify government agencies, non - government organizations, colleges, private companies, volunteer groups and individuals that have been, are or plan to be engaged in research, studies, information gathering, data collection, mapping, and related activities in or around UNB. 1.2 Devise a suitable matrix to appropriately identify the entities listed in 1.1 above to allow the entities and their data to be suitably catalogued. 1.3 Compile in one location a catalogue of information about the Upper Bay, including but not limited to environmental documents (EIRs, MNDs, Federal EIS'), Basin Plan and TMDL reports, research studies, management plans, watershed plans, and more. The data subject matter sought should be open - ended, ranging from geology to water quality to mammal sightings to recreational use. Data gathered shall include maps, aerial photos and GIS information. 1.4 Concurrently with Items 1.1 and 1.2, establish a Peer Review Panel made up of acknowledged experts in all scientific fields necessary to review and critique the studies and reports that will be cataloged within Item 1.3. Study authors may be peer reviewers. 1.5 Devise protocols to review the data collected that will ensure that the reviews address objective issues such as completeness, level of detail, breadth of scope, current validity, and applicability. 1.6 Write synopses of the data gathered in Item 1.3. 1.7 Rank each study, report, or plan as to its level of signifiance as it relates to developing the CRMP. 1.8 Conduct a "gap analysis" to identify what information, data, or research is missing that will be needed for the CRMP stakeholders to complete the CRMP and to make meaningful decisions on management priorities. 1.9 Establish a system for online access to the data gathered in Item 1.3 and its summaries and rankings in Items 1.6 to 1.8. Integrate this electronic system with the City's and NBNF's website. Create the procedures, etc necessary to perpetuate the online system and maintain integrity of data. 1.10 On behalf of the City facilitate, convene, and document initial meetings to engage primary stakeholders (including but not limited to the County, the City, the Regional Water Quality Control Board, the California Department of Fish and Game, the US Fish and Wildlife Service, the National Marine Fisheries Service, the California Coastal Commission, the State Coastal Conservancy, and educational groups that use the Upper Bay for programs, including but not 11 0 s limited to the Orange County Department of Education, Orange County CoastKeeper, Surfrider, and the Environmental Nature Center) to establish a mutually - agreeable set of long -term objectives for the CRMP and to decide how best to structure the CRMP to achieve those objectives. 12