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HomeMy WebLinkAbout16 - General Plan UpdateHearing Date: Agenda Item No.: Staff Person: SUPPLEMENTAL REPORT TO THE MAYOR AND CITY COUNCIL August 14, 2001 16 Sharon Z. Wood (949) 644 -3222 SUBJECT: Agreement with EIP Associates for Preparation of General Plan Update SUGGESTED ACTION: Approve and authorize City Manager to execute agreement for Phase 1 (Visioning Process) for an amount not to exceed $33,035 Staff and the consultant have continued to review the professional services agreement, and made modifications reflected in the attached revision. The modifications relate to time for performance and liquidated damages if the consultant fails to perform on schedule. These provisions were taken from previous agreements related to private development applications where time was of the essence due to the Permit Streamlining Act. In this case, the City will control the schedule, which is not yet firmly established, and these provisions are not applicable. SHARON Z. WOOD Assistant City Manager Attachments: I. Revised Professional Services Agreement CITY OF NEWPORT BEACH 4rEWPORr °'!\m COMMUNITY AND ECONOMIC �^ DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (714) 644 -3200; FAX (714) 644.3250 Hearing Date: Agenda Item No.: Staff Person: SUPPLEMENTAL REPORT TO THE MAYOR AND CITY COUNCIL August 14, 2001 16 Sharon Z. Wood (949) 644 -3222 SUBJECT: Agreement with EIP Associates for Preparation of General Plan Update SUGGESTED ACTION: Approve and authorize City Manager to execute agreement for Phase 1 (Visioning Process) for an amount not to exceed $33,035 Staff and the consultant have continued to review the professional services agreement, and made modifications reflected in the attached revision. The modifications relate to time for performance and liquidated damages if the consultant fails to perform on schedule. These provisions were taken from previous agreements related to private development applications where time was of the essence due to the Permit Streamlining Act. In this case, the City will control the schedule, which is not yet firmly established, and these provisions are not applicable. SHARON Z. WOOD Assistant City Manager Attachments: I. Revised Professional Services Agreement PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of August, 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and EIP Associates, Inc., whose address is 12301 Wilshire Boulevard, Suite 430, Los Angeles, CA 90025, (hereinafter referred to as "Consultant'), 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 intends to conduct a community visioning and outreach process in support of a comprehensive General Plan Update. C. City desires to engage Consultant to provide manage and conduct the community visioning and public outreach for the Project upon the terms and conditions contained in this Agreement. D. The principal member of Consultant, for purpose of this Project, is Elwood C. Tescher. AICP. Director of Urban Plannina and Desian. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, contained in attachment "A" attached hereto and incorporated herein by reference. 1.1 The contract and scope of services contains many components of a community visioning and outreach program. Depending on the outcome of earlier stages of this program, the City may decide that some or all of the latter components are not necessary. Therefore, the City may elect to some eliminate components of the scope of services at its sole discretion. 2. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, contained in the scope of services contained in attachment "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Thirty Three Thousand and Thirty Five dollars ($33.035.00). The City Manager shall have the authority to authorize work beyond this amount, not to exceed 25% of the contract amount. Should any components of the scope of services be eliminated by the City pursuant to Section 2.1 of this Agreement, the contracted compensation shall be reduced accordingly, consistent with estimated cost of said components set forth in the work program attached to this Agreement. 2.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 2.2 Consultant shall submit monthly invoices to City, payable by City within thirty (30) days of receipt of invoice subject to the approval of City, and based upon attachment "A ". Timely payment of consultant's invoices is a material part of this Agreement. 2.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with such approval. 2.4 City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs plus 10% of sub - consultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. Professional Services Agreement Participation Program — General Plan Update Page 2 3. 'STANDARD OF CARE 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 consistent with the standard pf care used in Consultant's industry. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 3.1 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, or any other delays beyond Consultant's control or without Consultant's fault. 4. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 5. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies, which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 6. PROJECT MANAGER Consultant has designated Elwood C. Tescher. AICP to be its Principal -in- Charge. He shall coordinate all phases of the Project and be available to City at all reasonable times during the Project term. Consultant shall not remove or reassign the Principal -in- Charge or assign any new or replacement person to the Project without the Professional Services Agreement Participation Program — General Plan Update Page 3 prior consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Furthermore, Consultant guarantees that Elwood C. Tescher, AICP (Project Manager) will personally perform all services delegated to him in the Phase 1 Work Program outlined in the Labor Budget in Attachment "A ", unless previous arrangements have been made with City. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 7. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 8. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 9. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 10. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims to the extent caused by the negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. 11. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the Professional Services Agreement Participation Program — General Plan Update Page 4 term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. Professional Services Agreement Participation Program — General Plan Update Page 5 12. PROHIBITION AGAINST TRANSFERS Except as specifically authorized under this agreement, Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. 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 orjoint- venture. 13. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as City may require, furnish reports concerning the. status of services required under this Agreement. 14. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 15. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review Professional Services Agreement Participation Program — General Plan Update Page 6 or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 16. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Sharon Z. Wood, Assistant City Manager shall be considered 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. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 18. WITHHOLDINGS City may withhold payment 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a 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. Professional Services Agreement Participation Program — General Plan Update Page 7 21. CONFLICTS OF INTEREST A. 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 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. B. 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 termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 22. SUBCONSULTANT AND ASSIGNMENT City and Consultant agree that a subconsultant may be used for the Community Survey, Task 9. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 23. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach ATTN: Sharon Z. Wood, Assistant City Manager 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: EIP Associates, Inc. ATTN: Elwood C. Tescher, AICP 12301 Wilshire Boulevard, Suite 430 Los Angeles, California 90025 (310) 268 -8132 Fax 268 -8175 Professional Services Agreement Participation Program — General Plan Update Page 8 24. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) 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. 24.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 25. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 26. 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. 27. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 28. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. Professional Services Agreement Participation Program — General Plan Update Page 9 29. LITIGATION In the event that either party brings an action under this Agreement for the breach or enforcement thereof, the prevailing party in such action shall be entitled to its reasonable attorneys' fees and costs whether or not such action is prosecuted to judgment. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Bludau City Manager City of Newport Beach APPROVED AS TO FORM: Robin Clauson Assistant City Attorney CONSULTANT EIP Associates, Inc. By: Terri Vitar, Regional Vice President Professional Services Agreement Participation Program — General Plan Update Page 10 4rEWaoR CITY OF NEWPORT BEACH Hearing Date: August 14, 2001 m COMMUNITY AND ECONOMIC Agenda Item �= DEVELOPMENT No.: 16 ,fo^ PLANNING DEPARTMENT Staff Person: Sharon Z. Wood 3300 NEWPORT BOULEVARD (949) 644 -3222 NEWPORT BEACH, CA 92655 (714) 6443200; FAX (714) 644 -3250 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Agreement with EIP Associates for Preparation of General Plan Update SUGGESTED ACTION: Approve and authorize City Manager to execute agreement for Phase 1 (Visioning Process) for an amount not to exceed $33,035 On April 10, 2001, the City Council directed the General Plan Update Committee to circulate a Request for Qualifications (RFQ) for consultants to update the General Plan. The Committee approved the RFQ on April 23, and staff sent it to fifteen firms. We received responses from three firms, EIP Associates, Hogle- Ireland, Inc., and the Planning Center. The Committee interviewed all three firms on June 25, and directed staff to check references on EIP Associates. With the report on references and EIP's response to them, the Committee recommended on July 23 that the City enter into an agreement with EIP Associates for Phase 1 of the General Plan update. Phase I involves working with our public participation consultant, MIG, throughout the visioning process. Participation of the general plan consultant in this phase will ensure that we are asking the right questions, in the best way, to help the City use input from the public to develop General Plan policies for the future. In addition to providing advice on the materials used in the visioning process, EIP will attend the visioning festival, neighborhood workshops, community congress and General Plan Advisory Committee meetings. This participation will allow them to hear the community's input firsthand, and to help shape the Vision, Values and Strategic Directions document that will be the result of the visioning process and the starting point for the General Plan update. The cost of this phase is $33,035, which is well within the amount budgeted for the General Plan project in the Planning Department's professional and technical services account. We cannot define the scope of services for Phase 2, the update itself, until the visioning process is complete and we know the issues and areas that will require the most attention. We will negotiate a separate agreement with EIP at that time. The attached agreement is the City's standard agreement for professional services, with stronger Project Manager provisions than usual. The General Plan Update Committee, staff and EIP's references all were very impressed with the firm's principal, Elwood Tescher, and we want to ensure that he will remain on the project and personally perform the critical work in Phase 1. Paragraph 7 provides this assurance. SHARON Z. WOOD Assist City Manager PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of July, 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and EIP Associates, Inc., whose address is 12301 Wilshire Boulevard, Suite 430, Los Angeles, CA 90025, (hereinafter referred to as "Consultant'), 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 intends to conduct a community visioning and outreach process in support of a comprehensive General Plan Update. C. City desires to engage Consultant to provide manage and conduct the community visioning and public outreach for the Project upon the terms and conditions contained in this Agreement. D. The principal member of Consultant, for purpose of this Project, is Elwood C. Tescher. AICP Director of Urban Planning and Design E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms of conditions provided 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 _ day of 2001 and shall terminate on the _ day of 200 ?, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, contained in attachment "A" attached hereto and incorporated herein by reference. 2.1 The contract and scope of services contains many components of a community visioning and outreach program. Depending on the outcome of earlier 3 stages of this program, the City may decide that some or all of the latter components are not necessary. Therefore, the City may elect to some eliminate components of the scope of services at its sole discretion. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, contained in the scope of services contained in attachment "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Thirty Three Thousand and Thirty Five dollars ($33.035.00). The City Manager shall have the authority to authorize work beyond this amount, not to exceed 25% of the contract amount. Should any components of the scope of services be eliminated by the City pursuant to Section 2.1 of this Agreement, the contracted compensation shall be reduced accordingly, consistent with estimated cost of said components set forth in the work program attached to this Agreement. 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City, payable by City within thirty (30) days of receipt of invoice subject to the approval of City, and based upon attachment "A ". Timely payment of consultant's invoices is a material part of this Agreement. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with such approval. 3.4 City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs plus 10% of sub - consultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. Professional Services Agreement Participation Program — General Plan Update Page 2 C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4. STANDARD OF CARE 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 consistent with the standard pf care used in Consultant's industry. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies, which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. n J Professional Services Agreement Participation Program — General Plan Update Page 3 7. PROJECT MANAGER Consultant has designated Elwood C. Tescher. AICP to be its Principal -in- Charge. He shall coordinate all phases of the Project and be available to City at all reasonable times during the Project term. Consultant shall not remove or reassign the Principal -in- Charge or assign any new or replacement person to the Project without the prior consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Such changes may result in re- negotiation of compensation. Furthermore, Consultant guarantees that Elwood C. Tescher, AICP (Project Manager) will personally perform all services delegated to him in the Phase 1 Work Program outlined in the Labor Budget in Attachment "A ", unless previous arrangements have been made with City. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with the schedule specified in attachment "A" [To be determined once notice to proceed is given]. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are 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. 8.1 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, which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 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. v; Professional Services Agreement Participation Program — General Plan Update Page 4 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims to the extent caused by the negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. 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 Professional Services Agreement Participation Program — General Plan Update Page 5 Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Except as specifically authorized under this agreement, Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 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, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or Professional Services Agreement Participation Program — General Plan Update Page 6 more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Sharon Z. Wood, Assistant Cif Manager shall be considered 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. Professional Services Agreement Participation Program — General Plan Update Page 7 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a 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. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 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. B. 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 Professional Services Agreement Participation Program — General Plan Update Page 8 termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultants violation of this Section. 24. SUBCONSULTANT AND ASSIGNMENT City and Consultant agree that a subconsultant may be used for the Community Survey, Task 9. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach ATTN: Sharon Z. Wood, Assistant City Manager 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3222 Fax 644 -3020 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: EIP Associates, Inc. ATTN: Elwood C. Tescher, AICP 12301 Wilshire Boulevard, Suite 430 Los Angeles, California 90025 (310) 268 -8132 Fax 268 -8175 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default Professional Services Agreement Participation Program — General Plan Update Page 9 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. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant 32. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 33. LITIGATION In the event that either party brings an action under this Agreement for the breach or enforcement thereof, the prevailing party in such action shall be entitled to its reasonable attorneys' fees and costs whether or not such action is prosecuted to judgment r. Professional Services Agreement Participation Program — General Plan Update Page 10 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. CITY OF NEWPORT BEACH A Municipal Corporation Homer Bludau City Manager City of Newport Beach APPROVED AS TO FORM: Robin Clauson Assistant City Attorney CONSULTANT EIP Associates, Inc. By: Terri Vitar, Regional Vice President Professional Services Agreement Participation Program — General Plan Update Page 11 Attachment A Phase 1 - Visioning Process Scope of Work & Budget Phase I - Visioning Process EIP will assist the City and MIG in the design and conduct of the community visioning process. Specifically, we will: Information about the Requirements, Role, Scope, and Applications of General Plans Provide information about the statutory requirements, roles, and applications of a General Plan to be used on the Interactive Website, in information displays, Workshop Tool Kits, newsletters, workshops (Vision Festival, Neighborhood, Community Congress, etc.), press releases, and other public forums (What is a General Plan? Why is Newport Beach updating its General Plan? How will the General Plan affect me ?). Specific issues and content for which input would be helpful will be identified in discussion with MIG and the City. As needed, text, diagrams, graphics, illustrations, examples, and other materials will be provided to maximize public use. 2. Advice for Workshop Design and Content Assist MIG and the City in the framing of questions, issues, vision, and other topics to be addressed in the public workshops, community survey, newsletters, Website, and other public forums. Our emphasis will be on assuring that generalized vision statements can be fully understood by the public for their policy consequences. For example, if 'lively, pedestrian- oriented streets" are described as a community vision, we will explore implications regarding the necessary mix of uses, density, physical characteristics, and parking and traffic. We will serve as a resource for MIG in defining questions that probe the depth of public understanding. At the same time, we will serve as a resource of technical research, prototypical examples, and other information that can be used in the workshops to facilitate public understanding of the concepts being considered. Similarly, we will help to assure that the comprehensive issues statutorily required for analysis will be addressed. For the purposes of the budget of this proposal, it is assumed that we will participate in two meetings with MIG and the City for each of the planned round of public workshops and attend the Community Vision Festival, one of the Neighborhood Workshops, and the Community Congress. 3. Workshop /Public Input De -Brief Following the community workshops, we will meet with MIG and the City to de- brief regarding the workshop process and what was heard. Specific issues affecting the content of the planning process will be identified and, as necessary, strategies to resolve these in future involvement tasks identified. This will include potential conflicts and inconsistencies among vision statements (for example, "provide adequate affordable new housing for all populations," while "restricting housing growth "), as well as visions for which the public may not understand their policy implications. As they emerge, vision statements will be correlated with their applicable General Plan sections, using a matrix format. 4. Committee Meetings We will participate in General Plan Committee (GPC) and General Plan Advisory Committee (GPAC) meetings, assisting MIG and the City as desired. Again, we will serve as a resource regarding planning law, prototypes and approaches, policies, and implementation programs. 5. Summary of Visioning Input The final Vision will be correlated with applicable General Plan sections, serving as the framework for the formulation of the update work program and budget. 6. Define Public Involvement Work Program EIP will work with MIG and the City to define the work program to be continued during the preparation of the updated General Plan. This will assess the effectiveness of the Visioning program in eliciting representative participation of Newport Beach's interests, education, input, consensus building, and ownership. If issues are identified, we will work in identifying alternative approaches to enhance the public's role in the process. L Phase I - Budget A. LABOR COST Hour s Total ($) TR. Chih ade Support $105 $65 1. Orientation meeting with MIG and City staff 4 4 $940 2. Meetings to provide advice regarding roles /purposes of General Plans as input for Website, displays, newsletters, workshops, and other forums -- assume two meetings. 6 8 $1,580 3. Provide resource materials regarding General Plans. 16 8 16 $3,240 4. Community Vision Festival — preparation meetings (assume two). 4 8 4 $1,700 5. ICommunity Vision Festival— attendance. 3 3 $705 6. Community Vision Festival —de- brief. 3 3 $705 7. Neighborhood Workshops — preparation meetings (assume two). 6 6 $1,410 8. Neighborhood Workshops— attendance (assume two). 6 6 $1,410 9. Neighborhood Workshops —de -brief 3 3 $705 10. Citywide & Area Specific Vision Document -- review and input 6 6 6 $2,040 11. Community survey —input 6 $510 12. Community Congress — preparation meetings (assume two) 6 8 4 $2,000 13. ICommunity Congress— attendance 6 6 $1,410 14. lCommunity Congress - -de -brief 4 4 $940 15. General Plan Commmittee Meetings -- assume attendance at three meetings. 13 $1,950 16. General Plan Advisory Committee -- assume attendance at four meetings. 17 $2,550 17. Preparation of supporting materials (text, maps, illustrations, charts, etc.). 6 16 26 $3,880 18. IManagement 6 12 1 1 $2,160 Total Estimated Labor Costi 1 1 $29,835 B. DIRECT COSTS /EXPENSES 1. Travel $1,200 2. Communications $400 3. Reproductions $850 4. Materials and Supplies $750 Total Estimated Direct Expense Costs $3,200 C. TOTAL ESTIMATED BUDGET 11 $33,035