HomeMy WebLinkAboutC-5511 - Service Agreement for Technical Assistance PanelSERVICE AGREEMENT
WITH URBAN LAND INSTITUTE FOR
TECHNICAL ASSISTANCE PANEL
\ This Agreement is entered into and made effective on this 1 � day of Tm 2013 (the
"Effective Date ") by and between ULI the Urban Land Institute (" ULl'% an Illinois nonprofit
corporation with Its principal place of business in the District of Columbia, and the City of Newport
n Beach ( "City"), a California municipal corporation and charter city with its principal place of business
�) in Newport Beach, CA.
1
} WITNESSETH:
WHEREAS, City wishes to engage ULI to provide the services described in Exhibit A ( "the
Services "); and
WHEREAS, ULI is equipped to provide these services In accordance with the terms and
conditions set forth in this Agreement and wishes to do so;
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants expressed herein, the receipt and sufficiency of which is acknowledged, the parties agree as
follows:
1. Scope of Services. ULI agrees to use all reasonable efforts and professional expertise to
provide the Services in accordance with the proposal, submitted by ULI (`the Proposal'), a copy of
which is attached hereto as Exhibit A and incorporated herein by reference. ULI will provide these
services in a timely, professional manner and represents and warrants that they will be of a quality that
is consistent with or exceeds industry and/or professional standards.
2. Term and Termination.
a. Term. The term of this Agreement shall begin on the Effective Date stated above
and shall terminate on March 31, 2014.
b. Termination. This Agreement may be terminated by either party in the event of a
material breach by the other party, which breach is not cured within thirty (30) days after written notice
thereof from the non - breaching party. In the event that this Agreement is terminated prior to completion
of the Services, ULI shall immediately return to City any compensation that has been paid for services
that have not yet been rendered; provided, however, that City shall be responsible for payment for all
work satisfactorily completed and reasonable expenses incurred prior to such termination.
3. Compensation.
a. City shall pay ULI for the Services on a flat rate basis within thirty (30) days of
execution of this Agreement and in accordance with the provisions of this Section and the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. ULI's compensation for ail
Work performed in accordance with this Agreement, including all reimbursable items and subconsuitant
fees, shall not exceed Fourteen Thousand five Hundred Dollars and 001100 ($14,500.00) 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.
b. City shall reimburse ULI only for those costs or expenses specifically identified in
Exhibit A to this Agreement, or specifically approved in writing in advance by City.
C. ULI 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 Proposal
and which the parties did not reasonably anticipate would be necessary at the execution of this
Agreement.
4. Confidentiality. All proprietary and confidential information related to Citys operations (the
"Confidential Information "), including the terms of this Agreement, is considered confidential for
purposes of this Agreement. Both during and for a period of five (5) years after the term of this
Agreement, ULI wiH use diligent efforts to maintain in confidence and use Confidential Information only
for the purposes contemplated in this Agreement. The preceding obligations shall not apply to
information that (a) has been publicly disclosed through no fault of ULI, (b) City agrees in writing, may
be used or disclosed, (c) is developed independently by persons who had no direct or indirect access
to the Confidential Information, as shown by contemporaneous written records; (d) that is obtained from
a third party without an obligation of confidentiality; or (e) that either party is required to disclose
pursuant to valid subpoena, judicial or administrative order, or other legal requirement; provided that the
party subject to such legal requirement shall give the other party prompt notice of such legal
requirement so as to permit that party the opportunity to file appropriate legal objections to such
disclosure.
5. Evaluation. City agrees to permit representatives of ULI to examine at any reasonable time
during normal business hours any relevant information necessary to confirm that the Services are
being provided in conformance with the Proposal and in compliance with applicable laws and
regulations and in conformity with the terms of this Agreement.
6. Compliance with Applicable Laws. ULI shall provide the Services in compliance with all
applicable federal, state, and local legal and regulatory requirements.
7. Publici . Neither party shall use the name, trademark, or logo of the other party or its
employees for promotional purposes without prior written consent of the other party. Nor shall either
party disclose the terms of this Agreement except as required by law or pursuant to prior written
consent of the other party.
& Independent Parties. ULI is acting in the capacity of an independent contractor hereunder
and not as an employee, or agent of, or joint venturer with City.
9, Ownership. City shalt be the sole owner of all right, title, and interest, including copyright, in
the any materials, products or deliverables created by ULI under this Agreement ( "the Deliverables ").
City agrees that, to the extent any Deliverable is subject to copyright protection, such Deliverable shall
be deemed a work made for hire pursuant to 17 U.S.C. § 201(a) and that City shall for all purposes be,
and shall be treated as, the author of such Deliverable. To the extent such Deliverable is not for any
reason held to be a work made for hire under applicable law, ULI shall irrevocably assign, transfer and
convey to City all of ULI 's right, title and interest in and to such Deliverable.
10. Representations and Warranties. ULI represents and warrants that (a) it has the authority to
provide the Services promised hereunder, and (b) the Deliverables it produces under this Agreement
Will not infringe the rights of any third parties (including copyright) or be obscene, libelous, slanderous,
or otherwise defamatory.
11. Limitation of Liability; Indemnification: Insurance.
a. To the fullest extent permitted by law, ULI shall indemnify, defend and hold harmless
City, its City Council, boards and commissions, officers, agents and employees (collectively, the
"Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily
injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits,
lasses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
aftorneys 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
URBAN LAND INSTITUTE PAGE 2
breach of the terms and conditions of this Agreement, any Work performed or Services provided under
this Agreement including, without limitation, defects in workmanship or materials or ULI's presence or
activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of
ULI, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone
employed directly or indirectly by any of them or for whose acts they may be liable or any or all of
them).
b. Notwithstanding the foregoing, nothing herein shall be construed to require ULI to
indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct
of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of
attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by the ULI.
C. Without limiting ULI's indemnification of City, and prior to commencement of Work,
ULI shall obtain, provide and maintain at its own expense during the term of this Agreement or for other
periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions
described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by
reference.
12. Force Maieure. The performance of this Agreement by either party is subject to acts of God,
war or threat of war, government regulation, acts of terrorism, disaster, fire, strikes, civil disorder, public
health crises, curtailment of transportation facilities or other circumstance beyond the control of the
parties unreasonably delaying or making it inadvisable, illegal or impossible for either party to perform
its obligations hereunder. This Agreement may be terminated without penalty for any one (1) or more
of such reasons by written notice from one party to the other; provided that the party delayed or unable
to perform shall promptly advise the other party of such delay or impossibility of performance, and
provided further that the party so delayed or unable to perform shall take reasonable steps to mitigate
the effects of any such delay or nonperformance.
13. Notice. Any notices given hereunder shall be sent by (i) First Class U.S. mail, return receipt
requested, (ii) overnight courier service, or (iii) personally delivered as follows:
FROM ULI to City:
Kimberly Brandt, Director
Community Development Department
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
FROM City to ULI:
ULI Orange County /inland Empire
2082 Business Center Drive, Suite 280
Irvine, CA 92612
14. Conflicts of Interest. ULI 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, ULI 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. ULI shall
URBAN LAND INSTITUTE PAGE 3
indemnify and hold harmless City for any and all claims for damages resulting from ULI's violation of
this Section.
15. Claims. Unless a shorter time is specified elsewhere in this Agreement, before making its final
request for payment under this Agreement, ULI shall submit to City, in writing, all claims for
compensation under or arising out of this Agreement. ULI's acceptance of the final payment shall
constitute a waiver of all claims for compensation under or arising out of this Agreement except those
previously made in writing and identified by ULI in writing as unsettled at the time of its final request for
payment. ULI and the City expressly agree that in addition to any claims filing requirements set forth in
the Agreement, the ULI shall be required to file any claim the ULI may have against the City in strict
conformance with the Government Claims Act (Government Code sections 810 et seq).
16. Assignment Binding Effect. Either party shall have the right to assign this Agreement to an
affiliate upon prior written notice to the other party. to all other instances, neither party shall assign its
rights or duties under this Agreement without prior written consent of the other party. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the respective parties and their
successors and assigns.
17. Equitable Relief. The parties understand and agree that money damages may not be a
sufficient remedy for the breach of the provisions of this Agreement, and that each party shall be
entitled to seek emergency injunctive relief as a remedy for any such breach by the other party,
including but not limited to specific performance. Such remedy shall not be deemed to be the
exclusive remedy for the breach of this Agreement, but shall be in addition to all other remedies at law
or in equity to the non - breaching party.
18. Severability. In the event that a court of competent jurisdiction holds any provision of this
Agreement to be invalid, such holding shall have no effect on the remaining provisions of this
Agreement, and they shall continue in full force and effect.
19. Survival. The provisions of this agreement that by their nature are intended to continue in their
effect following expiration or termination of this Agreement shall survive any such expiration or
termination.
20. Entire Agreement: Modifications. This is the entire agreement between the parties regarding
the subject matter herein and supersedes all prior agreements and understandings between the
parties regarding such subject matter. This Agreement may not be altered, amended or modified
except by written document signed by all parties.
21. Governing Law: Forum. This Agreement shall be governed by and construed under the
laws of the state of California. Any legal action brought to enforce the terms of this Agreement must
be brought in the State of California.
22. Authori #v. The undersigned parties and their duly authorized representatives represent and
warrant that they have authority to enter into this Agreement and hereby agree to the terms set forth
above.
23. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be considered an original, and all of which taken together will constitute one and the
same instrument and will be effective as of the Effective Date,
22. Exhibits. The exhibits to this Agreement are incorporated by reference herein, and the Parties
agree to comply with all of the terms and conditions set forth in such exhibits. To the extent that there is
a conflict between an exhibit and this Agreement, the terms of this Agreement shall control.
URBAN LAND INSTITUTE PAGE 4
23. No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement,
the prevailing party shall not be entitled to attorney's fees.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the date first above written.
APPROVED AS TO FORM:
CITY ATT NE 'S FFICE
Date:
9 By: v Vv k,-
AaroF
C. Harp
City Attorney �
ATTEST-
Date- � -4.0
By: �Xw'
Leilani I. brown
City Clerk_,,��,,
x'41.1 F4r',/
CITY OF NEWPORT BEACH,
A California munici al corporation
Date: la • , �,1 • /
By: Tx/v, 0 (xV/VAM
Kimb Ire y Brandt, AICP T
Community Development Director
ULI: Urban Land Institute, an Illinois corporation
Date:
B:,.-
Chair, ensurer or Executive Director
lta(il6e'-Utter, Exe utive ice President District
Councils C , /
[END OF SIGNATURES]
Attachments: Exhibit A: Proposal
Exhibit B: Insurance Requirements
URBAN LAND INSTITUTE PAGE 5
EXHIBIT A
PROPOSAL
SCOPE OF SERVICES
The City of Newport Beach "Sponsor" wishes to obtain findings and recommendations from ULI -the
Urban Land Institute Orange County /inland Empire District Council "District Council" regarding the
Balboa Village. Upon approval of the accompanying service agreement, coordinating a Technical
Assistance Panel (TAP) will commence. The TAP takes approximately three months to conduct, from
the time the agreement is executed by both parties.
The District Council agrees:
1. To organize one Technical Assistance Panel of persons comprised of members of the
Institute, who collectively have varied and broad experience and knowledge applicable to the particular
problems to be considered, including the planning, development and redevelopment of land and the
ownership, management and financing of real property.
2. To advise and consult in creating a Scope of Work with the Sponsor, containing 4-5 questions
that will be the focus of the TAP.
3. To provide panelists with information pertaining to the detailed Scope of Work. To arrange for
the panel members to visit the location. The panel, directly and through its staff, will study the
designated area; consult with public and private officials, representatives of other relevant
organizations, and other individuals familiar with the issues or problems involved; and prepare its
report, conclusions and recommendations which will be presented to the Sponsor and its invited guests
in oral form at the close of the assignment.
4. To provide the Sponsor with a PowerPoint presentation of the study at the close of the
Technical Assistance Panel study. To provide a written report eight weeks after the completion of the
panel.
The Sponsor agrees, at their expense
To draft a Scope of Work with 4-5 questions that will be the focus of the TAP.
2. To furnish pertinent background data in the form of reports, plans, charts, maps, etc., as may
be presently available or readily developed for the preliminary study of the panel, prior to its inspection
on site.
3. To arrange, insofar as possible, to have appropriate persons, including public and private
officials, representatives of the relevant organizations and businesses, and others, available for the
purpose of consulting with and furnishing information to the panel on specific matters relevant to the
assignment as may be necessary and advisable. These same officials shall be invited to attend the
TAP presentation.
4. To secure a venue to hold the TAP with tables, chairs and Audio -Visual capacity as well as a
venue to present the final recommendations to the stakeholders.
5. To provide transportation and guides to be used by the panel for any necessary inspection of
the study area and its environs.
6. To pay the District Council a sum total of $14,500 for the services of refining a scope of work,
screening and securing the TAP chair and participants, coordinating and conducting the Technical
Assistance Panel, and obtaining a final written document of the findings and recommendations.
URBAN LAND INSTITUTE PAGE 6
It is understood that the fee paid by the Sponsor to the District Council will also be used to cover
administrative costs of the panel preparation and to support and encourage the Institute's research and
educational programs.
The study area of Balboa Village is located on the Balboa Peninsula between Adams Street and A
Street.
Questions that the ULI TAP should address:
1. You have Arrived at Balboa Villagel What are the existing Balboa Village Public Realm
Corridors, Entry Areas, and Focal Points for vehicles, boats, bicyclists, and pedestrians?
a. How does each one rank in terms of overall importance?
b. How does each one rate in delivering its intended purpose of identifying Balboa
Village?
c. Specifically, are there improvements that need to be made to these key areas?
2. Balboa Village's Streets, Boardwalks, and Sidewalks are Fresh and Inviting! How
should the current street, boardwalk, and sidewalk improvements be updated and
enhanced to create a stronger identity and connectivity in the Public Realm corridors,
entry areas, and focal points?
a. Should other Public Realm design elements and /or connections be considered to
create identity, connectivity, and cohesiveness along the Village's corridors,
entries, and focal points?
b. With the future concept of "Park Once' in Balboa Village, how can pedestrian
connections between parking areas and commercial businesses and other
attractions be enhanced and strengthened?
c. Which improvements in the public rights -of -way should be given priority, if
funding is not available for all the improvements at one time?
d. Specifically, what improvements in the public rights -of -way will give Balboa
Village the "most bang for buck" in the immediate future?
3. Balboa Village's Character is Distinctive and Memorable! Should there be one or two
defined architectural theme(s) /style(s) for Balboa Village?
a. What types of improvements should be made to business fagades on private
property, in the absence of significant remodels and /or reconstruction projects?
b. How should the "blocks" be prioritized for the future City - sponsored facade
incentive program and /or targeted tenant attraction program?
c. Should and /or how should the Balboa Village Design Guidelines be updated?
4. Balboa Village is FUN! What areas within the Public Realm are well- suited for special
events and activities?
a. What type of events and activities are appropriate for Balboa Village that attract
residents and visitors to the area on a year -round basis?
b. How can that best be accomplished?
URBAN LAND INSTITUTE PAGE 7
EXHIBIT B
1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1.1 Provision of Insurance. Without limiting ULI's indemnification of City, and prior to
commencement of Work, ULI shall obtain, provide and maintain at its own expense during the
term of this Agreement, policies of insurance of the type and amounts described below and in a
form satisfactory to City. ULI agrees to provide insurance in accordance with requirements set
forth here. If ULI uses existing coverage to comply and that coverage does not meet these
requirements, ULI agrees to amend, supplement or endorse the existing coverage.
12 Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance
in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial
Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating
Guide, unless otherwise approved by the City's Risk Manager.
1.3 Coverage Requirements,
1.3.1 Workers' Compensation Insurance. ULI shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least
one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for
bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the
Labor Code.
1.3.1.1 ULI shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees
and volunteers.
1.3.2 General Liability Insurance. ULI shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as
provided by Insurance Services Office form CG 00 01, in an amount not less than one million
dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, products - completed operations,
personal and advertising injury, and liability assumed under an insured contract (including the tort
liability of another assumed in a business contract) with no endorsement or modification limiting
the scope of coverage for liability assumed under a contract.
1.3.3 Automobile Liability Insurance. ULI shall maintain automobile insurance
at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property
damage for all activities of the ULI 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 each accident.
13.4 Professional Liability (Errors & Omissions) Insurance. ULI shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in
the aggregate. Any policy inception date, continuity date, or retroactive date must be before the
effective date of this agreement and ULI agrees to maintain continuous coverage through a
period no less than three years after completion of the services required by this agreement.
1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
URBAN LAND INSTITUTE PAGE 8
1.4.1 Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specifically allow ULI or
others providing insurance evidence in compliance with these requirements to waive their right of
recovery prior to a loss. ULI hereby waives its own right of recovery against City, and shall require
similar written express waivers from each of its subconsultants.
1.4.2 Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, but not including professional liability,
shall provide or be endorsed to provide that City and its officers, officials, employees, and agents
shall be included as insureds under such policies.
1.4.3 Primary and Non Contributor. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self- insurance maintained
by City.
1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days
notice of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
1.5 Additional Agreements Between the Parties. The parties hereby agree to the
following.
1.51 Evidence of Insurance. ULI shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers' compensation and other endorsements as specified herein for each
coverage. Insurance certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance shall be kept on file
with City at all times during the term of this Agreement. City reserves the right to require
complete, certified copies of all required insurance policies, at anytime.
1.5.2 City's Right to Revise Requirements, The City reserves the right at any
time during the term of the Agreement to change the amounts and types of insurance required by
giving the ULI sixty (60) days advance written notice of such change, if such change results in
substantial additional cost to the ULI, the City and ULI may renegotiate ULI's compensation.
1.53 Enforcement of Agreement Provisions. ULI acknowledges and agrees
that any actual or alleged failure on the part of the City to inform ULI of non - compliance with any
requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
1.5.4 Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a given
issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type.
1.5.5 Self- insured Retentions.Any self - insured retentions must be declared to
and approved by City. City reserves the right to require that self- insured retentions be eliminated,
lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these
requirements unless approved by City.
1.5.6 City Remedies for Non Compliance If ULI or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have the right but not the
obligation, to purchase such insurance, to terminate this agreement, or to suspend ULI's right to
URBAN LAND INSTITUTE PAGE 9
proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to ULI or reimbursed by ULI upon demand.
1.5.7 Timely Notice of Claims. ULI shall give City prompt and timely notice of
claims made or suits instituted that arise out of or result from ULI's performance under this
Agreement, and that involve or may involve coverage under any of the required liability policies.
1.5.8 ULI's Insurance. ULI 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.
URBAN LAND INSTITUTE PAGE 10