HomeMy WebLinkAboutC-5898 - Service Agreement for 2014 Annual Charette, Mariners' Mile Planning Areav
SERVICE AGREEMENT
WITH CONGRESS FOR THE NEW URBANISM — CALIFORNIA CHAPTER
FOR 2014 ANNUAL CHARRETTE, MARINERS' MILE PLANNING AREA
This Agreement is entered into and made effective on this 7th day of August, 2014
(the "Effective Date ") by and between Congress for the New Urbanism — California
Chapter ( "CNU -CA "), a California nonprofit public benefit corporation with its principal
place of business in the City of San Diego, California, and the City of Newport Beach
( "City'), a California municipal corporation and charter city with its principal place of
business in Newport Beach, California.
WITNESSETH:
WHEREAS, City wishes to engage CNU -CA to provide the services described in
Exhibit A ( "the Services "); and
WHEREAS, CNU -CA 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. CNU -CA agrees to use all reasonable efforts and professional
expertise to provide the Services in accordance with the proposal, submitted by CNU -CA
( "the Proposal "), a copy of which is attached hereto as Exhibit A and incorporated herein by
reference. CNU -CA 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.
Term and Termination.
a. Term. The term of this Agreement shall begin on the Effective Date stated
above and shall terminate on November 28, 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, CNU -CA 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 CNU -CA 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. CNU -CA's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty
Five Thousand Dollars and 001100 ($35,000.00) 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.
b. City shall reimburse CNU -CA only for those costs or expenses specifically
identified in Exhibit A to this Agreement, or specifically approved in writing in advance by
City.
C. CNU -CA 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 City's
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, CNU -CA will 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 CNU -CA, (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 parry 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 CNU -CA to examine at any
reasonable time during normal business hours any relevant information necessary, as well
as access key City staff as staff is available, 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. CNU -CA shall provide the Services in
compliance with all applicable federal, state, and local legal and regulatory requirements.
7. Publicity. 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.
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8. Independent Parties. CNU -CA 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 shall be the sole owner of all right, title, and interest, including
copyright, in the any materials, products or deliverables created by CNU -CA 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, CNU -CA shall irrevocably assign, transfer and convey to
City all of CNU -CA 's right, title and interest in and to such Deliverable.
10. Representations and Warranties. CNU -CA 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 Liabilitv: Indemnification: Insurance
a. To the fullest extent permitted by law, CNU -CA 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, losses, judgments, fines,
penalties, liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a Claim;
collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to
any breach of the terms and conditions of this Agreement, any Work performed or Services
provided under this Agreement including, without limitation, defects in workmanship or
materials or CNU -CA's presence or activities conducted on the Project (including the
negligent and/or willful acts, errors and /or omissions of CNU -CA, 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
CNU -CA 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 CNU -CA.
C. Without limiting CNU -CA's indemnification of City, and prior to
commencement of Work, CNU -CA shall obtain, provide and maintain at its own expense
during the term of this Agreement or for other periods as specified in this Agreement,
CONGRESS FOR THE NEW URBANISM — CA CHAPTER PAGE 3
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 CNU -CA to City:
Kimberly Brandt, Director
Community Development Department
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
FROM City to CNU -CA:
Attn: Howard Blackson
President/Chair
Congress for the New Urbanism — California Chapter
2425 29th Street
San Diego, CA 92104
14. Conflicts of Interest. CNU -CA or its volunteers 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, CNU -CA 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. CNU -CA shall indemnify and hold harmless City for any and all claims for damages
resulting from CNU -CA'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, CNU -CA shall submit to City, in
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writing, all claims for compensation under or arising out of this Agreement. CNU -CA'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 CNU -CA in writing as unsettled at the time of its final request for payment. CNU -CA and
the City expressly agree that in addition to any claims filing requirements set forth in the
Agreement, the CNU -CA shall be required to file any claim the CNU -CA 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. In 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 . 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. Counterpart s. 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.
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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.
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 ATTORNEY'S OFFICE
Date: �-
By: A
Aaron C. Harp
City Attorney
ATTEST:
Date:
By: '
—dL —
Leilani I. Brown
City Clerk �tFl.Y;n
CITY OF NEWPORT BEACH,
A California municipa corporation
Date: q- /4 -/
By: Io.+ auvrWIVI
Kimberly Brandt, AICP
Community Development Director
Congress for the New Urbanism -
California Chapter, a California
nonprofit corporation
[END OF SIGNATURES]
Attachments: Exhibif-A: Proposal
Exhibit B: Insurance Requirements
CONGRESS FOR THE NEW URBANISM - CA CHAPTER PAGE 6
EXHIBIT A
PROPOSAL
SCOPE OF SERVICES
CONGRESS FOR THE NEW URBANISM - CA CHAPTER PAGE 7
CNU --- CA Newport Beach Mariners' Mile CNU --- Bv--- Desian Scope of
Work/Deliverables
The following is the Scope of Work and Deliverables ( "the Project ") for the Congress for
the New Urbanism California Chapter's ( "CNU- CA's ") 2014 Annual Charrette from
October 17 -21, focusing on the 1.3- mile -long Mariners' Mile Planning Area on Pacific
Coast Highway ( "the Site ") for the City of Newport Beach ( "the City ").
The outcome of the Charrette is intended to reframe the dialog, manage expectations,
and educate the citizens, local stakeholders, and the City on the issues and possible
solutions related to improving the Site. The Project's core objectives will be to:
1. Improve the vehicular flow on Pacific Coast Highway (PCH);
2. Enhance pedestrian /bicycle mobility and experience along PCH; and
3. Create a new public waterfront access /open space.
Beginning in 2013, the CNU -CA hosts a CNU -By- Design annual charrette program ( "the
Charrette ") as a Board -led activity that provides educational and membership outreach
opportunities statewide. The Charrette is designed to advise a city that requests our
assistance in visualizing the positive impact that CNU's principles and processes can
bring to a site. Our board's selection of the annual charrette project is based upon the
request's relevance to CNU initiatives and expertise as well as potential to have a
positive impact. The Project fits the following Congress for the New Urbanism national
walkability initiatives:
1. Highways to Boulevards (http: / /www.cnu.org /highways)
2. Sprawl Retrofit (http://www.cnu.org/sprawlretrof
of Work
CNU -CA will engage the City and its citizens in re- imagining potential long -term
development outcomes for the Site. The scope is organized by a three -step process
beginning with a 2 -3 -month Pre - Charrette data -/information- gathering phase, the
comprehensive 5 -day Charrette event phase, and the 5 -week Post - Charrette final
report delivery phase. Engagement will consist of pre - charrette and charrette
stakeholder Education and Dialog events. All three steps have a Public Outreach
component, beginning with educational opportunities to frame the project and ending
with the public's consideration of our final report recommendations. The following is the
breakdown of the scope of work for each step of the process:
Pre - Charrette (Aug. - Oct. 16, 2014):
• Baseline information / data gathering with City staff assistance;
• Local small group and one -on -one stakeholder meetings (City staff makes
introductions); and
• Management and coordination of CNU -CA Charrette team logistics.
CONGRESS FOR THE NEW URBANISM — CA CHAPTER PAGE 8
Charrette (Oct. 17 - 21, 2014):
• Large group public presentation (primarily an educational event);
• Small Group and one -on -one stakeholder meetings with public and private
entities;
• Team produces Master Plans / Sections / Illustrations to demonstrate:
• Potential Avon Street Village Site (public /private project)
• Waterfront Park / Plaza (public/private project)
• PCH 'Boulevard' Streetscape Transformation (public project)
• Team to develop Urban Design and Implementation /Economic Development
Strategies for Opportunity Sites.
Post - Charrette (Oct. 22 - Nov. 26, 2014):
• Submit Draft to the City for review and comments (2 weeks turn around);
• Submit Final Document to the City (3 weeks after City response):
• Primary Place Making Recommendations for Opportunity Sites;
• Regulatory/Economic Development Implementation Recommendations:
• Development Standards / Entitlement Tools (if applicable);
• Implementation /Economic Development Strategies;
■ Tactical Urbanism Tools.
Deliverables
CNU -CA
• Public Education Event (1) for citizens, politicians and stakeholders on CNU
principles and case studies;
• Public Dialogs (3x) on the project's issues to initiate public discourse on moving
from Ideas to Interventions;
• Master Plan, Street Section, and design intervention for three (3) opportunity
sites along Mariners' Mile with suburban retrofit scenarios illustrated:
• Waterfront park/plaza;
• Village area on side - streets (Avon St.);
o PCH 'Boulevard.'
• Policy, Regulatory and Economic Development Implementation strategies (1);
• Urban Design Toolkits (3x):
• Highway -to- Boulevards report(s);
• Sprawl Repair recommendations;
• Tactical Urbanism interventions to test some ideas.
City of Newport Beach
1. Provide the venue(s) to host the Charrette and public events.
2. Provide digital copies of data, surveys, governing documents, and other
materials and information required to complete the above Scope of Work and
Deliverables. In particular, the City will provide the following prior to the
Charrette:
CONGRESS FOR THE NEW URBANISM — CA CHAPTER PAGE 9
a. Mapping with Parcels and Rights -of -Way (edge of pavement, curb &
gutters, sidewalks, street trees, drainage, embankments, utility
easements) to scale.
b. Existing Topography to scale.
c. Existing Aerial Photography to scale.
3. Assistance with schedCNU -CAng stakeholder interviews.
4. Examination of the draft report and make comments, edits, recommendations
within ten (10) working days (2 weeks) starting on October 23, 2014.
5. Reimburse CNU -CA $35,000.00 for expected on -site expenses, materials, and
travel, including a net contribution (goal is $12,000).
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EXHIBIT B
1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
11 Provision of Insurance. Without limiting CNU -CA's indemnification of City,
and prior to commencement of Work, CNU -CA 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. CNU -CA agrees to provide
insurance in accordance with requirements set forth here. If CNU -CA uses existing
coverage to comply and that coverage does not meet these requirements, CNU -CA
agrees to amend, supplement or endorse the existing coverage.
1.2 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. CNU -CA 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 CNU -CA 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. CNU -CA 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 five hundred thousand dollars ($500,000) 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. CNU -CA 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 CNU -CA arising out of or in
connection with Work to be performed under this Agreement, including coverage for any
CONGRESS FOR THE NEW URBANISM — CA CHAPTER PAGE 11
owned, hired, non -owned or rented vehicles, in an amount not less than five hundred
thousand dollars ($500,000) combined single limit each accident.
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
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 CNU -CA or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. CNU -CA 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 Contributory. 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:
1.5.1 Evidence of Insurance. CNU -CA 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 any time.
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 CNU -CA sixty (60) days advance written notice of such
change. If such change results in substantial additional cost to the CNU -CA, the City
and CNU -CA may renegotiate CNU -CA's compensation.
1.5.3 Enforcement of Agreement Provisions. CNU -CA acknowledges
and agrees that any actual or alleged failure on the part of the City to inform CNU -CA of
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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 CNU -CA 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 CNU -CA's right to 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 CNU -CA or reimbursed by CNU -CA upon demand.
1.5.7 Timely Notice of Claims. CNU -CA shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from CNU -CA's
performance under this Agreement, and that involve or may involve coverage under any
of the required liability policies.
1.5.8 CNU -CA's Insurance. CNU -CA 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.
CONGRESS FOR THE NEW URBANISM — CA CHAPTER PAGE 13